SURJU MAHTON Vs. PARBHU CHAND SAO

JUDGEMENT

(1.) This is an appeal by defendants 1 to 12 who are subsequent simple mortgagees of the property in dispute from defendants 13 to 20 after they had executed an ijara in favour of the plaintiffs. Defendants 1 to 12 having obtained a decree to enforce their simple mortgage against defendant? 12 to 20 put the property to sale, became the auction purchasers and obtained delivery of possession, thereby dispossessing the plaintiffs. (To this suit the plaintiffs were no parties.) This suit has been decreed for recovery of possession. Hence the appeal to this Court.

(2.) Mr. Raj Kishore Prasad argued that under the document of usufructuary mortgage the only remedy of the plaintiffs was to sue for recovery of the money which they advanced. But having regard to the terms in Ex. l, it is clear to us that this only gives a personal remedy to the plaintiffs, and this is on the line of Section 68 (1) (a), T, P. Act. It does not debar the plaintiffs from enforcing their rights under the general law, namely, the right to retain possession, and to be put into possession undisturbed. The disturbance in the present case is by the representatives oE the mortgagors, because defendants 1 to 12 have only purchased the equity of redemption.

(3.) Mr. Raj Kishore Prasad has been unable to place before us any authority which would coerce us to hold that the plaintiffs have no right to retain possession or to be-put in possession and cannot maintain the suit for recovery of possession when they have been dispossessed either by the mortgagors or by the later mortgagees. Indeed, Section 68 (1) (d) itself provides that where the mortgagee being entitled to possession, the mortgagor fails to deliver the same to him or to secure the possession, then the mortgagee has a right to sue for the money advanced, that is to Bay, the sub-clause presupposes that the mortgagee has a right to be put into possession and to be kept securely in that possession. A reference may also be made to the case of Nidha Sah v. Murlidhar, 30 I. A. 54 : (25 ALL, 115 p. c.) which shows that their Lordships treated the suit before them not on contract, but on title. The appeal, therefore, is without any substance which must be dismissed with costs payable to the plaintiffs.