RAM DIN SINGH Vs. SARJU PRASAD

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for possession over certain haqiats and tenancy plots specified at the foot of the plaint and for Rs. 200 on account of damages. The facts that culminated in the suit giving rise to the present appeal are undisputed and are as follows: The plaintiff-respondents held a simple money decree against one Har Narain Singh. Ram Din Singh, defendant- appellant, also had obtained a simple money decree against Har Narain Singh. Har Narain Singh was mortgagee under certain usufructuary mortgage deeds and the haqiats and the tenancy plots in dispute in the present litigation were mortgaged with possession to Har Narain Singh. Both the plaintiff-respondents and the defendant-appellant took out; execution of their respective decrees and, apart from other zamindari properties, attached the mortgagee rights of Har Narain Singh under the five usufructuary mortgage deeds. The zamindari properties attached by the plaintiffs and the defendant were ancestral properties of Har Narain Singh and the execution was transferred to the Collector and the Collector fixed the 21 October 1929 for the sale of zamindari properties and 24 October 1929 for the sale of mortgagee rights. As there is no dispute in the present litigation with respect to the zamindari properties it is unnecessary to state anything about the sale of those properties. The mortgagee rights under the five usufructuary mortgage deeds were sold by the Collector and admittedly purchased by the plaintiff-respondents in execution of their decree on 22 October, 1929.

(2.) Thereafter the same mortgagee rights were put to sale by the Court at the instance of the defendant-appellant on 26 January 1930 and were purchased by the defendant-appellant. It would thus appear that the purchase of the mortgagee rights by the defendant-appellant was after the purchase of those rights by the plaintiffs at the auction sale held by the Collector. Both the plaintiffs and the defendant applied for mutation in the Revenue Court and that Court granted mutation in favour of the defendant-appellant. The plaintiffs then filed the suit giving rise to the present appeal. The case put forward by the plaintiffs was that the mortgagee rights constituted immovable property and the Civil Court had therefore no jurisdiction to sell the same. On these allegations the plaintiffs maintained that by the purchase made by them on 22 October, 1929, they became entitled to the mortgagee rights and that the sale by the Civil Court being without jurisdiction, the defendant acquired no right with respect to the mortgagee rights by his purchase of 26 January 1930. This contention of the plaintiffs was accepted by both the Courts below and those Courts decreed the plaintiffs claim for possession over the properties in suit in the capacity of mortgagees and for recovery of Rs. 85 on account of damages.

(3.) The defendant has come up in appeal to this Court and it is contended on his behalf that the view taken by the Courts below is erroneous. We are unable to agree with this contention of the defendant-appellant. The decision of the appeal depends on the determination of the question whether a mortgagee's interest in a usufructuary mortgage is an immovable property or moveable property. If the mortgagee's interest under such a mortgage is immovable property it is conceded that the decrees of the Courts below are correct. The question was considered by a Division Bench of this Court in Jang Bahadur V/s. Bhagat Ram Sheo Prasad. , and it was held in that case that a mortgagee's interest in a usufructuary mortgage is an immovable property within the meaning of Rule 89, Order 21, Civil P.C. To the same effect are the decisions of the Calcutta and the Bombay High Courts. The Madras High Court has however taken the contrary view.