INDER NATH MODI Vs. NANDRAM

JUDGEMENT

(1.) THIS is a first appeal by the plaintiff in a suit for recovery of possession.

(2.) ONE Nandram and his brother Achlu mortgaged two houses mentioned as A and B in the schedule annexed to the plaint, with one Jainarain for a sum of Rs. 3000/- on 'be-sakh Vadi' 7, Smt. 1975 (22nd April 1919) and delivered possession thereof to the mortgagee in pursuance of the mortgage. Nandram took a lease of the house A from the mortgagee on the date of the mortgage and occupied the same as a tenant. On the failure of Nandram to pay rent, Jainarain sued for arrears of rent and ejectment and obtained a decree on the 12th of September 1929, and actual physical possession was delivered to him in execution of the decree on 19th of November 1931, It was alleged that Mst. Sarupi, mother of Nandram, committed trespass over the said house and dispossessed the mortgagee. Thereafter, Jai Narain filed a complaint for house-trespass but Mst. Sarupi was acquitted on the ground that her action was in exercise of a bona fide right to be provided with a place for residence. It was alleged that Mst. Sarupi continued to be in possession of the house till her death in July 1942 but thereafter Nandram and his two sons Gauri Shanker and Jagdish got into possession of the property although they had no right to do so and it was the mortgagee Jainarain who was entitled to have possession over the property. Jainarain, however, transferred his rights under the deed of mortgage to Shri Shambhu Nath by a document dated 31st March 1944 and the present suit was instituted by Inder- nath who is the son and legal representative of the said Shri Shamtahu Nath. It was alleged that the house B had been sold in connection with the recovery of Government dues outstanding against Nandram and after satisfying the Government debt, a sum of Rs. 1,237/8/- was received by Jai Narain on 'mah Sudi' 6, Smt. 1976 but thereafter nothing was received by him or his successor Shri Shambhu Nath. On 7th June 1944 Shri Shambhu Nath called upon Nandram to deliver possession of the house but the defendant did not comply. The plaintiff claimed possession over house A and Rs. 570/by way of mesne profits from July 1942 till date of suit at the rate of Rs. 15/-per month and further at the same rate till delivery of the possession. Gaurishanker and Jagdish, the two sons of Nandram, were also jmpleaded as defendants. The present suit was filed on 1st of October 1945.

(3.) IN the plaint filed in the suit out of which this appeal has arisen, paragraphs 1 and 9 relate to the plaintiff's title to bring the suit. Paragraphs 2, 3, 4 and 5 relate to the fact of the mortgage by Nandram and Achlu to Jainarain, the lease of the house 'a' to Nand-ram by Jainarain. Jainarain's suit for eject- ment against Nandram, and his obtaining possession in execution of that decree on 19th November 1931. IN paragraph 6, it is mentioned that after Jainarain had obtained possession as aforesaid, Mst. Sarupi dispossessed Jainarain, and in a criminal case started by Jainarain for trespass, the Chief Court acquitted her on the ground that she had a right of residence. IN paragraph 7 it is mentioned that Mst. Sarupi remained in possession of the property till her death in July 1942. IN paragraph 8, it is mentioned that after the death of Sarupi, the defendants in the case, namely, Nandram and his two sons Gaurishanker and Jagdish wrongfully got into possession of the property although it was Jainarain who was entitled to the possession thereof as mortgagee. IN paragraph 10, it is mentioned that the plaintiff's predecessor-in-title asked the defendants to deliver possession of the property and also gave a notice to that effect on 7th June 1944 but without result. Paragraph 11 mentions the fact that there was still a subsisting mortgage. IN paragraph 12, mesne profits from July 1942 till date of the suit (1st October 1945) at the rate of Rs. 15/- per mensem were claimed. IN paragraph 13, the cause of action was alleged to have arisen on the day when defendants got into possession after the death of Sarupi sometime in July 1942. Paragraphs 14 and 15 contain formal matters and in paragraph 16 a decree was claimed as follows: (i) for possession of house 'a' against the defendants; (ii) for recovery of Rs. 570/- on account of mesne profits till date of suit; (iii) for further mesne profits at the rate of Rs. 15/- per mensem till the date of delivery of possession by the defendants; (iv) interest on mesne profits at the rate of 6 per cent, per annum; and (v) costs and general relief.