NANU Vs. MATHURA PRASAD

JUDGEMENT

(1.) THE facts of the case have been fully set forth in the judgments of the Courts below and need not be repeated here at length. THE plaintiff-respondent is a mortgagee who had obtained a decree for sale and later on became the purchaser of the property in dispute in execution of his own decree. After this decree had been passed, certain partition proceedings, which had been pending from before, resulted in a partition under which, according to the plaintiff, lands of very inferior quality were allotted to the mortgagor-judgment- debtor, and lands of superior quality were placed in the shares of his other go sharers. THE plaintiff obtained formal possession over the undivided share of his judgment-debtor which had been mortgaged to him. This was on the 19th of June 1914 and the partition proceedings were completed on the 24th of June 1914, It appears, however, that when the plaintiff wanted to reap the advantages which accrued to him from the purchase of the undivided half-share belonging to his judgment-debtor, the defendant interfered and set up the partition which had been effected behind the plaintiff?s back. THE plaintiff then brought the present suit for a declaration that he was entitled to possession of a half undivided share, and that the partition was not binding upon him and was fraudulent. He also claimed actual possession and damages. THE defense, amongst other pleas, was that the partition was not fraudulent, that the suit was not maintainable because it offended against the provisions of Section 233(k) of the Revenue Act. THE Subordinate Judge came to the conclusion that the suit was not barred by the provisions of the Land Revenue Act, II of 1901, and his finding has been left untouched by the lower Appellate Court and has not been challenged in appeal before us. He, however, found that it had not been shown that the judgment-debtor and his so-sharers colluded together to defeat the plaintiff s rights, and, therefore, the partition could not be interfered with, and dismissed the suit. On appeal by the plaintiffs the District Judge came to the conclusion that it had been proved beyond all possible doubt that Nanu (the mortgagor), Bansi and Kbubi, his co-sharers, conspired to defraud the plaintiff and to that end effected a fraudulent exchange of land under the guise of a partition amongst themselves. He also found that the partition was a bogus one and it could not in any way effect the plaintiff s rights and decreed the plaintiff s claim for recovery of possession, dismissing that for mesne profits. Some of the defendants, including the mortgagor, come here in second appeal and raise various points. THE first and the last grounds of appeal have not been at all touched upon by the learned Counsel for the appellant in his argument. THE second ground has not been pressed either. THE case, however, which has been strongly pressed before us in argument comes to this that the plaintiff was not entitled to a decree because he had nut shown that he had been in any way dandified by this fraudulent partition, and reliance has been placed on a large number of cases dealing with the subject. This case which resembles the present one most closely is that of Mahadeo Prasad v. Takia Bibi 25 A. 19 : A.W.N. (1902) 182. THE only distinction, if any, is that in that case the purchase by the mortgagee decree holder was made after the partition had been carried out, whereas in the present case the purchase was made before the partition .was completed. If this distinction could make any difference it all, it would be one in favour of the plaintiff-respondent. THE argument put forward before us, shortly, comes to this that the plaintiff has made a good bargain in so far as his purchase of the other items of the mortgaged property is concerned, and that the plaintiff could not be dandified because he had not taken into consideration the profit which he has made out of the other purchase. THE learned Counsel could not show us any authority under which we could compel the plaintiff to give an account of the other purchase. So far as the judgments of the Courts below go, this point does not seem to have been toughed upon-nor does it appear to have been raised anywhere, so that we are not in a position to state whether there was any justification for this statement. THEn it was contended, on the strength of the ruling aforesaid, that we ought to remit an issue to find out whether the plaintiff had been in any way dandified, and, if so, what relief he was entitled to; but having regard to the finding of fact referred to above, namely, that the partition was a bogus one, having been brought about to defeat the plaintiffs claim, and that by virtue of that partition the defendant-mortgagor got lands of much inferior quality than he would have been entitled to if the partition had been fair and above board, we do not see how any question re mains still to be decided. It is clear, and more than clear, from the above finding that the plaintiff has been dandified. We think there is no force in this appeal. We, therefore, dismiss this appeal with costs including in this Court-fees on the higher scale.