GULBA Vs. BASANTA

JUDGEMENT

(1.) The facts which gave rise to the suit in this case are these. Kishan Lal defendant mortgaged a chaupal to Grulba appellant. A decree was obtained upon the mortgage on the 20 of August 1907. Thereupon the plaintiffs, who are two of the members of the Lodh caste, brought the suit which has given rise to this appeal for a declaration that the chaupal with its appurtenant shops is owned and possessed by the plaintiffs the first defendant, Kishan Lal and other members of the brotherhood and that it is not liable to sale in execution of the decree obtained by the appellant against Kishan Lal. The plaintiffs state that the chaupal belongs to them and other members of the Lodh community, that the first defendant Kishan Lal who is the Mokaddam (i.e. headman) amongst the Lodhs had no power to mortgage it, that the decree passed upon the mortgage is calculated to deprive the plaintiffs of their rights and is prejudicial to them, that the plaintiffs are owners and sharers in the chaupal and that they are competent to sue in order to protect their rights.

(2.) The defence was that the chaupal did not belong to the Lodh community but was the exclusive property of Kishan Lal the mortgagor of the appellants. It was also asserted that the amount of the mortgage was taken for the purpose of reconstructing the chaupal and that, therefore, the plaintiffs were liable for the said amount. There was a farther plea to the effect that the plaintiffs alone were not competent to maintain the suit.

(3.) The Court of first instance found that the chaupal belonged solely to the defendant Kishan Lal. It was also of opinion that the plaintiff alone could not maintain the suit and accordingly dismissed the claim.