PUNIT MAHTON Vs. MAHABIR MAHTON

JUDGEMENT

(1.) This is a plaintiffs' appeal, against the judgment of the learned Additional District Judge of Patna reversing a decision of the Munsif of Barh.

(2.) The Facts of the case, briefly stated, are that one Mt. Puna Kuer who was the proprietress of sixteen annas share o village Narachwar had mortgaged this village together with four annas interest in another village Amarpur for Rs 475/- on 30-5-1886, to Harkhu Singh and Dhunmun Singh, the mortgage deed having been taken in the Farzi name of one Haredayal Mahton. In October, 1904, the heirs of Mt. Puna Kuer sold twelve annas share in village Narachwar to one of the mortgagees, Harkhu Singh, by a registered kebala, which had been taken by Harkhu Singh in the farzi name of one Parsidh Singh whose sons executed a Jadabi deed on 17-9-1943, in favour of defendants 16 and 17, the heirs of Harkhu Singh, who subsequently also acquired the remaining four annas share in this village Narachwar by a compromise in Title Suit No. 16 of 1943.

(3.) On 17-5-1950, defendants 16 and 17 sold their share in village Narachwar by a registered kebala of the above date to the plaintiffs for Rs. 10,300/-. out of which Rs. 8,325/- was paid in cash to the vendors, defendants 16 and 17, and Rs. 1500/- was kept in deposit with the purchasers, the plaintiffs, for redeeming another zarpeshgi deed executed on 3-12-1929, in respect of 3.39 acres of bakasht land under Khata No. 111 of village Narachwar, whereby this land had been given in thika to Chamari Mahton, father of defendants I to 4 who contested the suit. The term of the thika was for six years. The remaining amount of Rs. 475/- was also left with the purchasers, the plaintiffs, for redeeming the mortgage bond of 1886. The plaintiffs' case was that they tendered the money to both the mortgagees. The mortgagees of 1886 accepted the money but Chamari's heirs did not do so. Thereafter, the plaintiffs deposited the money in Court and started proceedings under Section 83 of the Transfer of Property Act in which a notice was sent to Chamari's heirs to take the money and give up possession of the land in favour of the plaintiffs, which they refused to do. Then the plaintiffs filed this suit claiming redemption of the zarpeshgi. They also claimed mesne profits.