BUDH SEN Vs. RAM PIARI AND DROPADI

JUDGEMENT

(1.) These are two Letters Patent appeals arising out of a suit for redemption. It appears that Hansa was the owner of some land situated in Shahganj in the Agra City, whereon stood a kachcha house and chaupal. In 1861 he mortgaged with possession the sail land with the kachcha house and chaupal standing thereon to Hargobind in lieu of Rs. 20. On the 30th of June, 1833, Hansa sold his equity of redemption in that property to Jug d Kishore, the predecessor in interest of the present plaintiff. Jugal Kishore filed a suit for redemption and obtained a decree on the 6th of October, 1863, conditional on his paying Rs. 20 to the mortgagee. No time was fixed by the decree for the payment of that money and no money was in fact paid to Hargobind in pursuance of it. Whether this was due to some private arrangement with Hargobind or some other cause is not clear. Hargobind subsequently pulled down the kachcha kotha and chaupal standing thereon and built a shop and a balakhana at a cost of Rs. 5,500. He remained in possession of that property till 1889, when he mortgaged the shop and balahhana, with the land upon which they stood, to one Khubi Ram, describing himself as the absolute owner of that property. This mortgage was simple Later on he executed two deeds of further charge in favour of Khubi Ram. On the 25th of May, 1901, the heirs of Khubi Rim got a decree for sale on foot of those deeds and in execution of that decree the property in question was sold by auction on the 1st of August, 1902, and purchased by the decree-holders themselves. The auction purchasers subsequently sold their rights in the said property to the present defendants by two sale deeds, one of which was executed, on the 29th of January, 1904, and the other on the 22nd of May, 1905.

(2.) The present suit was filed by the plaintiffs on the 26th of March, 1915, for the redemption of the mortgage made by Hansa in 1861. The court of first instance came to the conclusion that the claim was not barred by limitation, that a second suit for redemption was maintainable, and that the plaintiffs were entitled to a decree for redemption on payment of Rs. 20 on account of the principal sum secured by the mortgage. One of the pleas urged by the defendants was that their predecessor, Hargobind, had built shops and other apartments on the land in dispute at a considerable cost and that the plaintiffs were not entitled to get back the property without paying the cost of the constructions made by him. The court of first instance found that one of the houses originally existing on the disputed land had fallen down and that the mortgagee was justified in rebuilding it. It, therefore, allowed Rs. 100 on account of the cost of its reconstruction.

(3.) With regard to the remaining buildings standing on the land its finding was that those buildings had been constructed in order to improve the house and that the plaintiffs were not liable for the costs of those improvements, The decree passed by that court consequently was that the plaintiffs should get possession of the property, including the improvements made by the mortgagee, on payment of Rs. 120 to the defendants. That decree was upheld by the court of first appeal.