RAM SINGARI DEVI Vs. LOKSHMAN PRASAD BHAGAT

JUDGEMENT

(1.) This appeal is against the judgment of affirmance. The appellants, who were plaintiffs, filed Title Suit No. 48/13 of 1967/1975 for redemption of a mortgage bond dated 9.4.1922, allegedly, executed by Balgobind, son of Chetu Gope of Village Baghi in the district of Samastipur. The appellants claimed redemption by virtue of two sale deeds executed by Ramudgar, son of Balgobind, who was defendant No. 12 in the suit. The plaintiffs had impleaded Ram Prasad Bhagat, the mortgagee, his sons and daughters as defendant 1st party.

(2.) The defendants third set were the wife and daughter of Munsilal Bhagat, brother of Ram Prasad. The main contest was in between the plaintiffs and Raghubir Bhagat, Sola of Ram Prasad. The defendants 1st set, namely, the heirs of Ram Prasad Bhagat supported the case of Raghubir Bhagat (defendant No. 13). The entire allegation in the plaint regarding mortgage and subsequent dealing of mortgage property was disputed in the written statement filed on behalf of Raghubir Bhagat whose case is that the said property was purchased by him in Court auction pursuant to a rent decree obtained by the landlord against Balgobind. This happened in the year 1927 much before the property was purchased by the plaintiffs from Ramudgar Rai.

(3.) The contesting defendants challenged the alleged mortgage said to have been executed by Balgobind in favour of Ram Prasad Rai. According to the plaintiffs' case after the death of Balgobind Gope, his son Ramudgar Rai inherited his property. He left the village Baghi and settled down in another village near village Baghi. The plaintiffs purchased the property worth of Rs. 4,000.00 from Ramudgar Rai. After the purchase, the plaintiffs learnt that the contesting defendants claimed that the suit property had been purchased by Raghubir Bhagat, Sala of Ram Prasad Bhagat in Court auction. The defendants have denied that Ramudgar Rai was in any way connected with the family of Balgovind Rai. He was an imposter. He also pleaded that the suit was bad for non-joinder of necessary party. Balgobind had three another brothers, namely, Sankar, Ramkhelawan and Faujdar. They came in possession of the property. The joint property was partitioned among the brothers and each of them came in possession of 2 Bigha 10 Katha 6 dhur out of total area of 10 Bihgas 11 Katha 8 dhurs. The heirs of brothers of Balgobind were not impleaded. According to the evidence, the mortgaged land remained in possession of the ancestor first party as mortgagee till 1937. Separate property was subsequent purchased in the name of Most. Iswharbati Devi. The partition took place between them. The disputed property came to the share of defendants 1 to 3 and 5. According to the defendant's case, no such mortgage was executed by Balgobind. What actually happened was that Balgobind executed a mortgage bond and kept the same with him. After sometime the entire amount was paid to him encash and he received back his Makboola with an endorsement of payment.