SUBA RAUT Vs. DINDEUAL CHOUDHURY

JUDGEMENT

(1.) This is an appeal by the plaintiff, Suba Raut, who brought a suit for a declaration that the mortgage decree obtained by defendant 1 against defendants 2 to 4 in Suit No. 19 of 1934 in the first Court of the Munsif at Arrah and the sale held in execution thereof are not binding upon him and his share in the disputed property. He claims relationship with defendants 2 to 4 according to the following genealogy which is given in the plaint:

(2.) The plaintiff's case is that there was separation between Mahadeo and Kanhaiya and that Kanhaiya's branch had only a half share in the disputed property. Defendants 2 and 3 however executed a mortgage in respect of the entire property in favour of defendant 1 who obtained a collusive mortgage decree in Suit No. 19 of 1934 and thereafter sold the property in execution of that decree and purchased it himself. The plaintiff has got a half share in the disputed property and he claims that his half share is not bound by the mortgage decree or the execution sale. The suit was contested by defendant l. His defence is that the plaintiff does not belong to the family of the mortgagors at all and that the entire disputed property belonged to the mortgagors Ramsewak and Kukur. He also pleaded that the suit was barred under Section 42, Specific Relief Act, inasmuch as he took delivery of possession, though subsequent to the institution of the suit. The learned subordinate Judge has disbelieved the evidence of the plaintiff and held that he is not the son of Mahadeo. He has also held that the suit is barred under Section 42, Specific Relief Act.

(3.) The mortgage bond which formed the basis of the mortgage decree in question is Ex. A dated 2 March, 1923. It was executed by Ramsewak (defendant 3) and Kukur (defendant 2). In it there is a recital that Mahadeo died issueless. The learned subordinate Judge has placed some reliance upon this recital in coming to the finding that the plaintiff is not the son of Mahadeo. Mr. Naqui Imam on behalf of the appellant contends that the executants of Ex. A not having been examined, its recitals cannot be used as evidence against the plaintiff. But it is to be remembered that Kukur, one of the executants, died sometime before the hearing of the suit. The learned subordinate Judge seems to think that the recital, so far as it is a statement of Kukur who is dead is evidence under Section 32, Clause (5), Evidence Act.