FAZAL RAB Vs. MANZOOR AHMAD

JUDGEMENT

(1.) This is a plaintiff's appeal from the decree passed by the Additional Subordinate Judge of Allahabad upholding that of a Munsif of that District in a suit for declaration or, in the alternative, for possession, brought by the appellant, which has been dismissed by both the lower Courts. Idi owned a 1-anna and 1-pie share in mahal Idi, village Ingua. His brother, Rajab, owned a 6-pies share in the same mahal. By a deed dated 15 January 1866, Idi mortgaged with possession a number of specified plots to one Shamsuddin, agreeing to pay a certain rate of interest which could not be satisfied out of the usufruct of the mortgaged property. A balance of Rs. 54-13-9 was therefore payable by the mortgagor every year out of his own pocket, which he agreed to pay with the principal at the time of redemption. Subsequently, Idi sold 7-pies out of his share to Alopi and the remaining 6-pies to Kanhai Lal and Jawahir Lal.

(2.) Alopi sold the 7-pies share purchased by him to the plaintiff's father, Madad Ali, Ilahi Baksh, Abdus Shakur and Raza. Husain in equal shares, the share of the plaintiff's father being 1 3/4-pies. The vendees had no money of their own for payment of the consideration, Rs. 800, and executed for that sum a bond in favour of Alopi, the vendor, hypothecating the share purchased by them. Madad Ali died some time afterwards, and the plaintiff stepped in his shoes. Later on, the plaintiff purchased from Kanhar Lal and Jawahir Lal the 6-pies share which the latter had purchased from law. The plaintiff thus became owner of .7i-pies share in the mahal.

(3.) A partition was made of Mahal Idi some time before 1907. Seven pattis were formed of the entire mahal, three of which were: (1) patti belonging to the plaintiff; (2) patti Raza Husain, including his share and that of Abdus Shakur purchased from Alopi; and (3) patti Hafiz Ahmad, including the share of Ilahi Baksh purchased from Alopi. The plots mortgaged by Idi under the deed dated 15 January 1866, were distributed among all the seven pattis.