NARAIN DAS Vs. BANARSI LAL

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit for a declaration that the decree passed in Mortgage Suit No. 176 of 1943 was illegal, collusive, fraudulent and not binding on him and his interest was not affected by the said decree. The plaintiff further asked for a decree for recovery of possession in respect of a land measuring 0.91 acre being a portion of plot No. 575 of khata No. 171 (not 137 as mentioned in the plaint) of village Jathuli, touzi No. 66. The plaintiff wanted a decree for mesne profits as well.

(2.) The plaintiff stated that one Laksh-man Mistry had four sons, namely, Sri-cliand, Tulsi and Daroga (from one wife) and Jagarnath (from another wife). All of them were members of a joint Mitak-shara family and Daroga happened to be the Karta of that family. It will be necessary to state here the names of the other members of that family. Srichand had two sons, Dhupnarain and Sadhu. Dhup-narain left a son. Ramchandra. Tulsi left two sons, Banwari and Dargahi. Daroga also had two sons, Ramlagan and Bhag-wan. Hari (defendant No. 3) is the son of Ramlagan, whereas Parbhu and Ram-dayal (defendants 4 and 5) are the sons of Bhagwan Lakhan Lal (defendant No. 6) is the minor son of Hari. Banarsi Lal and Mukha Lal (defendants 1 and 2) do not belong to this family. Sometime either in the year 1911 or 1912 dispute arose among the three sons of Lakshman on one hand and the fourth son, Jagarnath, on the other in respect of the joint family properties, and those three full-brothers were trying to deprive Jagarnath of his share in the family properties even to the extent of executing some fictitious documents in favour of strangers. The family, however, continued to be joint till August, 1924, but by an Ekrarnama dated 22-9-1924 those members separated amongst themselves, with the result that Srichand, Tulsi and Daroga got 2/7th share each in the joint family properties, whereas Jagarnath got 1/7th share only. Defendants 3 to 6 were described as the defendants second party. On 20-4-1942 the plaintiff purchased by a sale deed executed by Banwari and Dargahi, the sons of Tulsi, of their interests in certain properties, including their interest in plot No. 575 of khata No. 171 and plot No. 1023 of another khata. Defendants 3 to 5 raised a dispute with regard to the possession of the land bearing plot No. 1023 of khata No. 410, with the result that there was a proceeding under Section 145 of the Code of Criminal Procedure in respect of the disputed area. An adverse order was passed against the plaintiff on 20-11-1945, and hence he and 12 others instituted Title suit No. 189 of 1945 in the Court of Mun-sif against Ramprasad, Bihari Lal (who are not parties to the suit giving rise to this appeal), Hari, Parbhu and Ramdayal (who are defendants 3 to 5 in the present suit also and two others, namely, Bhagwan and Ramlagan (who were described as defendants second party in that suit) for, adjudication of their title, recovery of possession, mesne profits and other reliefs. The plaint was, however, returned as the valuation of the suit was increased and the plaint was then refiled in the Court of Subordinate Judge on 9-5-1949 and the suit was numbered as Title Suit 27 of 1949. That suit was decreed by the Additional Subordinate Judge, 2nd Court, Patna, on 22-9-1950. The title of the plaintiffs (of that suit) was declared, and a decree for recovery of possession and mesne profits was passed in their favour. The amount of mesne profits was to be determined in a subsequent proceeding. Later on, Execution Case No. 39 of 1952 was filed to execute that decree for mesne profits (after ascertainment) and 0.91 acre out of plot No. 575 was purchased by the plaintiff-decree-holders of Title Suit No. 27 of 1949 on 19-5-1953.

(3.) It appears that on 31-1-1917 Tulsi and his two sons, Banwari and Dargahl, had sold their 2/7th share in plot No. 575 to Daroga, with the result that Daroga acquired, all told, 4/7th share. On 24-1-1936 Daroga executed a mortgage bond in respect of 3/7th share of plot No. 575 in favour of Mukha Lal (present defendant No. 2), and the mortgagee (defendant No. 2) filed Title Suit No. 176 of 1943 to enforce that mortgage against defendants 3, 4 and 5 (the grandsons of Daroga). A preliminary mortgage decree was passed on 20-11-1944 and the final decree was passed on 29-9-1948. Defendant No. 2 filed Execution Case No. 585 of 1951 to execute that decree, and the present defendant No. 1 (Banarsi Lal) purchased 1.35V2 acres of plot No. 575 on 18-6-1953 and the sale was confirmed on 18-7-1953. Later on, defendant No. 1 applied for delivery of possession in respect of the land purchased by him, but the plaintiff resisted the delivery of possession and hence the petition of defendant No. 1 complaining about the resistance was registered as Miscellaneous Case No. 281 of 1954 and It was allowed on 17-8-1954, with a direction to issue a fresh writ for delivery of possession in respect of the land purchased by him. The plaintiff, being aggrieved by the said order, filed Civil Revision No. 913 of 1954 in this court, but it was dismissed on 7-9-1955. The plaintiff further alleged that the sale deed dated 31-1-1917 was a fictitious and fraudulent one and the said mortgage bond and the proceedings in the mortgage suit also were fraudulent and collusive. The case of the plaintiff was that he was not at all a party to the Title (Mortgage) Suit No. 176 of 1943, and hence the decree passed in that suit was not binding on him. The suit giving rise to this appeal was instituted on 6-9-1956 for the reliefs already indicated.