LAKSHMI NARAIN DUTT Vs. FAZIL MAHOMED

JUDGEMENT

(1.) This appeal arises out of a suit by the plaintiffs Nos. 1 to 5 to recover possession of some plots of land. The plaintiffs Nos. 1, 2 and 3 are tl..e sons and the plaintiffs Nos. 4 and 5 are the daughters of one Nasir Mahomed. The defendant No. 1 purchased the property at a sale in execution of a decree passed on a mortgage executed in his favour by one Jabid Ali. It appears that the plaintiffs Nos. 1, 2 and 3 were parties to the mortgage decree. The plaintiffs alleged that the property belonged to Nasir Mahomed, and that, as heirs of Nasir Mahomed, they are entitled to recover possession. The defendant No. 1 alleged that the property belonged to Jabid Ali, and that, as purchaser of the interest of Jabid Ali in the property, he is entitled to remain in possession, and that at any rate, the plaintiffs Nos. 1, 2 and 3 are bound by the mortgage-decree and are not entitled to recover possession from him. These allegations raised two cardinal points, first, how far were the plaintiffs Nos. 1, 2 and 3 bound by the mortgage-decree, and secondly, whether the plaintiffs had established the title of Nasir Mahomed to the property.

(2.) As regards the first, the Courts below have held that notwithstanding the fact that the plaintiffs Nos. 1, 2 and 3 were parties to the mortgage-decree, they are not bound by it, because the defendant No. 1 has failed to prove that the summonses, sale proclamation etc., were served on these plaintiffs.

(3.) With regard to the second question, both the Courts below have held that the plaintiffs have succeeded in establishing that 8, out of the 15 plots claimed in the suit, belonged to Nasir Mahomed.