KALI NATH SAHA Vs. MANINDRA NATH DAS

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit for redemption after taking accounts. It appears that one Giridhar Mistri mortgaged the lands in suit comprising about 202 bighas to defendant 1, Kalinath Shaha. That after the said mortgage the plaintiff's father Chandra Kanta took settlement of those lands and other lands in Taluki right from Government. That disputes soon arose and a proceeding under Section 145, Criminal P.C., had to be drawn up. In that proceeding Giridhar was unsuccessful and Chandra Kanta's possession was declared in 1911. Chandra Kanta then purchased the interest of Giridhar at a certificate sale in 1912 and continued in possession. Kalinath (defendant 1) thereafter instituted a mortgage suit against Giridhar without making Chandra Kanta a party defendant, and after obtaining a mortgage decree purchased the suit lands in 1919 in execution of his decree. Chandra Kanta then settled the lands in 1920 with the pro forma defendant 20, Tarak Dey, and died soon after. As disputes again arose with regard to possession, Tarak Dey instituted title suit No. 75 of 1929 against defendant 1 and his brother, defendant 2, for the recovery of possession of about 50 bighas of land upon the allegation that Giridhar having only a non transferable occupancy right, the auction-purchase of 1919 under the mortgage decree conferred no title upon defendant 1, The suit was, however, dismissed (Ex. 7) and the decision was confirmed up to the High Court. The plaintiffs (sons of Chandra Kanta) thereupon instituted two suits, suit No. 25 of 1936 in the Subordinate Judge's Court for recovery of possession based on similar allegations as in suit No. 75 of 1929, but for a somewhat lesser area, and the present suit No. 388 of 1936 in the Munsif's Court for redemption of the mortgage by Giridhar of nearly 202 bighas as stated above. The suit No. 25 of 1936 was dismissed in January 1937, but the suit No. 388 of 1936 for redemption was decreed in March 1937, and it was ordered that the plaintiffs should redeem by paying Rs. 678-6-3 bearing interest at 6 per cent, within two months and in case of default the mortgaged properties should be put up to auction sale. From the above decision both parties appealed : the defendants in respect of the maintainability of the suit for redemption and the plaintiffs in respect of the amount to be paid for redemption and for costs. The learned Additional District Judge in the Court of Appeal below dismissed both the appeals. The defendants thereupon preferred the present appeal and the plaintiff filed a cross-objection.

(2.) In the defendants appeal the main points that have been urged before me are: First, that the plaintiffs having asserted a title paramount are not entitled to redeem, and the case in Nilkanta Banerji V/s. Suresh Chunder ( 86) 12 Cal 414 has been relied upon in support of the contention. Secondly, that the plaintiffs claim is barred under Order 2, Rule 2 and Section 11, Expln. 4, Civil P.C. The case in Iman Khan V/s. Ayub Khan ( 97) 19 All 517 has been cited by the learned advocate for the appellants as an authority in support of the construction which he seeks to put upon Section 11, Expln. 4, Civil P.C. As to the first point, the case cited in support of it Nilkanta Banerji V/s. Suresh Chunder ( 86) 12 Cal 414 is clearly distinguishable. There the defendant in a suit for foreclosure set up a title paramount and on his own prayer got the suit dismissed against himself with costs, as having no title to redeem, and subsequently he instituted another suit claiming redemption. The decision in the previous suit was held to be binding upon him, precluding him from redeeming the property. In suits No. 25/36 and No. 75/29 no question was raised as regards the right of redemption : moreover, those suits related only to about 50 bighas of land. The decisions in those suits, therefore, do not, in my opinion, preclude the plaintiffs from claiming redemption in the present suit. As regards the second point, it is to be observed that Order 2, Rule 2 does not say that every suit shall include every cause of action for it, while Section 11 read with Expln. 4 does not make it necessary to set up at once all matters forming grounds of attack or defence in a suit unless they might and ought to be so set up. Whether or not a matter might and ought to have been made a ground, would depend upon the facts of each particular case.

(3.) In suits Nos. 25/36 and 75/29 the claim was founded upon an absolute title treating defendant 1 as a trespasser, while in the present suit for redemption the claim is based upon a recognition of the interest of defendant 1 as a mortgagee. The title put forward in the former suit, No. 25/36, by the plaintiffs appears to me to be entirely different from and dissimilar to the present claim and the joining of these two together in my opinion would have led to confusion as to the evidence to be adduced in respect of the alternative claims. It is to be noticed that the plaintiffs were not parties to suit No. 75 of 1929. The decision in 19 All 5173 was given upon very different facts. In that case the plaintiff sued the defendant for possession under an absolute title and after the dismissal of the suit instituted another suit for possession under a mortgage title. It was held that a claim to possession as mortgagee ought to have been made a matter of attack in the former suit. In my opinion, neither Order 2, Rule 2 nor Expl. 4 to Section 11, Civil P.C., operates as a bar to the present suit. As both the contentions raised on behalf of the defendants have failed their appeal is dismissed with costs.