BIBI BASHIRUNNISAN Vs. HABIB AHMAD

JUDGEMENT

(1.) The plaintiff has come up in second appeal against the judgment of the Subordinate Judge of Darbhanga setting aside the judgment and decree passed by the 2nd Additional Munsif of the same place.

(2.) The only question, which has to be considered and decided in this appeal, is whether the plaintiff is entitled to rely upon Section 101 of the Transfer of Property Act and claim that she had kept alive her mortgage charge on the property in dispute as against the respondent, who had purchased it in auction sale held in execution of decree obtained by the landlord for arrears of rent.

(3.) The above question arises in the following circumstances : The property in dispute measures 1 bigha 19 kathas 17 dhurs bearing survey plot No. 15937 of khata No. 1860 and survey plot No. 16070 of khata No. 1684. It was part of a larger area of 3 bighas 13 kathas 9 dhurs, which formed a raiyati holding belonging to one Mohibul Hassan and others, and was under the zemindari of Raj. Darbhanga, The entire holding was sold in execution of the decred for arrears of rent and was purchased by two persons, Rabi Pasban and Sheikh Juman. Rabi Pasban and the heirs of Sheikh Juman subsequently mortgaged the disputed land to the plaintiff-appellant by a registered bharna bond dated 8-10-1923 and the appellant was put in possession as mortgagee, but the land was again put to sale, in execution of another rent decree obtained by the landlord against Rabi Pasban and Sheikh Juman in Rent Execution Case No. 584 of 1929. The auction-purchaser was one Sheikh Jangli. The plaintiff's case was that Jangli was her benamdar, because it was she who had purchased the property at the court sale in 1929 in his name. This sale was confirmed on 26-9-1929; and the plaintiff continued in possession as before as she was already in possession as bharnadar. Later on, on the 9th November, 1933 she got an ekrarnama ladavi deed by Jangli admitting the position that the real owner of the property was the plaintiff herself and not Sheikh Jangli.