LALA RAM RATTAN LAL Vs. MUSAMMAT GAURA

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of Rs. 378-3-0 principal and Rs. 134 13 0 interest, in respect of certain land revenue which had been paid by the plaintiff appellant by reason of a default on the part of the co-sharers of Mauza Mohammadpur Gularia, mahal Soem. Musammat Gaura and 34 other persons were co-sharers in this mahal, Musammat Gaura had executed a simple mortgage of her share in this property in favour of the plaintiff-appellant. She had also passed a mortgage an favour of one Ujagir Singh. Ujagir Singh put his mortgage into suit, obtained a decree against Musammat Gaura and purchased her interest in the property himself. Plaintiff brought a suit for enforcement of his prior lien by the Suit No. 136 of 1917 which was directed both against Musammat Gaura, the mortgagor and Ujagir Singh, the puisne encumbrancer, who had in the meantime already purchased the property. The plaintiff's claim was decreed and in execution of the final decree contain-ed by him, the interest of Musammat Gaura in the property was purchased by the plaintiff-decree-holder on the 20 of December, 1920.

(2.) Musammat Gaura was the co-sharer of this mahal at the time of the auction sale. All the other co-sharers who are defendants in the present action including Musammat Gaura were in arrears of Government revenue to the extent of Rs. 378-3-0. The factum of the co-sharers being in arrears to the above extent, was notified at the time of sale but the property itself does not appear to have been gold subject to the lien in favour of the Government. The Government, however, recovered the entire amount, namely, Rs. 378 3 0 from the plaintiff at the time of the auction-purchase. The present suit has been instituted for recovery of that amount from the co-sharers together with interest.

(3.) The defendants denied their liability and pleaded that the position of the plaintiff was that of a volunteer and he was not en-titled to recoup himself by contribution or otherwise from the defendants. This plea found favour with the trial Court which dismissed the suit upon the ground that the payment made by the plaintiff was voluntary and the suit was misconceived. The lower Appellate Court has affirmed this decision.