RAM CHARAN SAHU Vs. GOGA ALIAS MATA PERSHAD

JUDGEMENT

(1.) The present litigation has beep before this Court once before in First Appeal No. 205 of 1913. The fasts which have given rise to the present litigation are to be found set out in Mata Prasad v. Earn Charan Sahu 25 Ind.Cas. 381 : 36 A. 446 : 12 A.L.J. 701, We will restate the facts. Two brothers, Baij Nath and Jagarath, were members of a joint Hindu family. Baij Nath obtained a simple money decree against one Ram Jas on the 17th of June 1878. In 1881 under a deed of partition between the brothers Jaganath also got a half share in the said decree. Both the brothers applied for execution of the said decree and in execution attached 16 annas of Mauza Karma on the 20th of September 1884. On the 29th of July 1887 Ram Jas executed a deed of simple mortgage in respect of an eight-anna share in Mauza Karma to the defendants first party. In the meantime, both Jagarnath and Baij Nath died. On the 10th of January 1898 Ram Jas executed a Sale deed in respect of a nine annas six pies share in the village for the sum of Rs. 9,471, in, favour of Musammat Sheolagna, the widow of Jagarnath. Jagarnath also left three sons, Ram charan, Tirbeni, and Gauri Shankar, who are the plaintiffs in the present suit.

(2.) Out of the consideration for the sale-deed Rs. 127 were paid in cash, the balance was left with the vendee to pay off the amount of the decrees of the 29th of July 1887 held by the sons of Jagarnath and Baij Nath, and also the amount of another decree held by the sons of Baij Nath only. Mutation of names was effected in favour of Muiammat Sheolagna. Thereupon the defendants first party, i.e., the mortgagees brought a suit on the basis of a mortgage of the 29th of July 1887 impleading Thakur Das, the heir of Ram Jas, the original mortgagor, and also Musammat Sheolagna, the purchaser of the nine annas six pies share, if usammat Sheolagna defended the suit. Among other pleas, she pleaded that she was not the owner of the sale-deed, dated the 10th of January 1898, that her sons, namely, Ram Charan Tirbeni and Gauri Shankar, were the real owners, and, that they were necessary parties. The mortgages would not admit that the sons were the real owners. They contended that Musammat Sheolagna was the real owner of the property. An issue was framed on the point and the learned Subordinate Judge held that Musammat Sheolagna was the real owner, and, finding on the other issues in favour of the plaintiffs mortgages, passed a decree in their favour on the 2nd of Jane 1893. In execution of that decree a six annas share in Mauza Karma was sold and purchased by the decree-holder? That six-annas admittedly included four-annas out of the share purchased by Musammat Sheolagna. Possession was formally delivered to the decree-holders auction purchasers on the 14th of April 1900. On the 6th of December 1911 the three sons, Ram charan, Tirbeni and Guari Shankar, started the present litigation suing for possession of the four-annas share in Mauza Karma against defendant s first party on the ground that they were the real purchasers of the party under the sale-deed of the 10th of January 1891, and that the decree obtained against Musimm it Sheolagna was on lassie and not binding on them The Subordinate Jud e held that Musammat Sheolagna was the real owner, that even if she was the benamider the decree against her was binding upon the real owner, i.e., the present plaintiffs. On appeal the Additional District Judge reversed the findings on both the issues and remanded the case for trial on the merits. The mortgage decree-holders auction-purchasers appealed to this Court and this Court upheld the decision of the Additional District Judge by its judgment which is to be found in Mata Prasad v. Bam, Charan Sahu 25 Ind.Cas. 381 : 36 A. 446 : 12 A.L.J. 701. By that decision it was finally decided between the parties to the present litigation that the present plaintiffs, the sons of Musammat Sheolagna, were the real owner that Musammat Sheolagna was not a benamidar for her sons and that the decision in the former litigation did not operate as res judicata. The case went back to the Subordinate Judie for decision on it merits. The learned Subordinate Judge held on the facts as now established that the plaintiffs were entitled to possession but he held that as the defendants first party if relegated to a fresh regular suit, would be unable to enforce their mortgage against the sons of Musammat Sheolagna on account of the rule of limitation, it would be hardline: on them if the plaintiffs were given possession without being forced to pay what is due to the defendants first party on their mortgage. It accordingly gave the plaintiff; a decree for possession conditional of payment of a certain sum of money within a certain time. In default their suit was; to stand dismissed. On appeal the lower Appellate Court modified the decree only as to this amount of money that was to be paid Both parties have come into this Court second appeal. The plaintiffs urge that they are entitled to an unconditional decree for possession. The defendants first party plead that they are entitled to recover a greater sum from the plaintiffs than the Court below has allowed They seek for a modification of the decree of the Court below but only to the amount of money to be paid by the plaintiffs.

(3.) Briefly stated, the facts are as follows: The mortgagees brought a suit for sale against the original mirtgagar and against one Musammat Sheolagna, the ostensible transferee of the property. Musa mnat Sheolagna when impleaded forward and stated to the Court that she was not the real owner and that her sons were the real owners and that they ought to be impleaded. The mortgagees, for some reason best known to themselves, which we have not been able to fathom, resisted the attempt to bring the sons of Husanmat Sheolagna into the case as defendants. One would have thought that they would have hailed the impleading of these persons with joy as it would finally have decided the matter completely as between them and everybody who had an interest or claimed to have an interest in this property, but they objected tooth and nail and succeeded in keeping them out of toe suit. They gab a decision behind the backs of the sons that the mother it was the owner. On the findings in the present case the mother was not the owner but the Son were. They put to sale the in right, title and interest of Musmamat Sheolagna which was nil and they purchased, that right, title and interest at an auction sale. They than applied for possession and it was formally granted to that on the 14th of April 1909 and they succeeded in ousting the real owners of the property who had n t been made parties to the mortgago suit at all. The real owners have come into Court and have asked to be reinstated in possession, the lawful possession which they had on the 14th of April 1900 and with which the mortgagees decree-hollers auction purchaser?, had no right to interfere. One would have thought prim, facie on these facts that the plaintiffs were clearly entitled to be re-placed into lawful possession of the prospect to which they clearly were entitled on the 14th of April 1900. The only ground on which the Court below has given a conditional decrees is that if the opposite party were relegated to their proper remedy" by a regular suit that suit would be barred by time in our opinion, this is quite an insufficient ground for granting a conditional decree, specially on the facts of the present case. It is no body s fault but that of the mortgagee decree holders that the present plaintiffs ware not impleaded in the former litigation. They are in the position of parsons who wrongfully ousted the plaintiffs and who, on the 14th of April 1900, were not legally entitled to possession at all as against these plaintiffs. The lower Court has placed reliance upon two decisions of this Court to be found reported as Hajra Bibi v. Shiam Narain 20 Ind. Cas. 184 : 11 A.L.J. 362 and Bam. Prasad? Bhikari Das 26 A. 464 : A.W.N. (1904) 108 The fasts of these two cases differ considerably from the facts of the case now before us. In Ran Pram I v. Bhican Das 26 A. 464 : A.W.N. (1904) 108 the mortgagee obtained his decree and purchased the property and when he came to apply for possession was resisted and fails 1 to get possession. He then brought a suit in the alternative to recover either his money or possession of the property. This Court hall that he was entitle I to one of the two. In the case reported as Hajra Bibi v. Shiam. Narain 20 Ind. Cas. 184 : 11 A.L.J. 362 the purchaser was not the mortgagee decrees holder but a third party. In neither of these two cases was any question of limitation raised. In the case reported, as Ram Prasad v. Bhikari Das 26 A. 464 : A.W.N. (1904) 108 it could not have arisen at all. In the, case reported as Haira Bibi v. Shiam Narain 20 Ind. Cas. 184 : 11 A.L.J. 362 it is impossible to say from the report whether or jot the point of limitation could have been raised, but it clearly was not raised. There is no mention of the word limitation to be found either in the statement of fasts or in the judgment. On behalf of the plaintiffs appellants our attention has been sailed to the Fall Banch decision of this Court reported as Hargu Lal Singh v. Gobind Rai 19 A. 541 (F.B.) : A.W.N. (1897) 154 : 9 Ind. Dec. (N.S.) 350 and Madan Lal v. Bhagwan Lal 21 A. 235 (F.B.) A.W.N. (1899) 41 : 9 Ind. Dec. (N.S.) 859 in each of these cases the mortgagee auction purchaser brought a suit simply for possession.. This Court on both occasions held that his claim for possession could not; lie and that the suit was to stand dismissed. To a considerable extent it seems to us that the two decisions in Haira Bibi v. Shiam Narain 20 Ind. Cas. 184 : 11 A.L.J. 362 and Barn Prasad v. Bhikari Das 26 A. 464 : A.W.N. (1904) 108 claim with the Full Bench rulings, because in each of these cases it has been held that the plaintiffs therein were entitled either to recover their money or to recover possession of the property, whereas in the Full Bench case decision it was dictionary held that the plaintiffs were not entitled to possession at all. Be that as it may, the fasts of the present case do differ from the fasts of those four cases. Here we have it that the mortgagee auction purchaser has gone one step further and has ousted from possession persons who were lawfully estitled to possession en the day of the ouster. Further, we have it admitted before us very clearly and distinotly that his claim (when the present suit was brought) under his mortgage against the present plaintiffs was time-barred and" that be could not have recovered in it. The lower Courts, therefore, have Allowed the wrongful possession obtained by the defendants to operate in their favour so as to enable them to give the plaintiffs a decree conditional on payment of whit is now a time-barred debt so far as the present plaintiffs are concerned. There is no denying the fact that the ouster of the plaintiffs was an unlawful ouster. It had come about under the colour of a decree and an aquatint sale. That does not make it any the more legal specially when was see but these mortgages auto purchasers fought tooth and nail to prevent the present plaintiffs being imp leaded in the former litigation. Farther, more, the person whom they did imp lead and whose rights they purchased has been found to have no title whatsoever in the property, The act of the function purchaser, therefore, has been equivalent to that of a mortgage actually ousting his mortgagor although his mortgage was only a simple one and then pleading in defence that the persons lawfully entitled to possession cannot get possession until his money is paid. In other words, he seeks to call in aid for his defence in the present suit his own wrongful Article The plaintiffs, in oar opinion, are clearly on the facts entitled to be replaced in the position in which they were on the 14th of April 1900, leaving it to the opposite party to seek and purchase any remedy which they may have according to law. The mere fast that his remedy may row be time-barred is no good ground for giving the plaintiffs a conditional decree for possession on re payment of money. We, therefore, allow Appeal No. 84 of 1918 and we grant to the plaintiffs an unconditional decree for possession of the property. The plaintiffs will have their costs in all Courts including in this Court fees on the higher sale.