RAMESHWAR NATH Vs. NARAMDESHWAR PRASAD NARAIN SINGH

JUDGEMENT

(1.) This is an appeal by the mortgagee defendant in an action for redemption. The only question that arises, there being no doubt as to the right of the plaintiffs to the return of the zarpeshgi deed, is that of accounting. The zarpeshgi dates back to the year 1872 and was for a sum of Rs. 8325. The rental of the property was estimated to be about 682. The mortgagee was to pay, according to the terms of the zarpeshgi Government revenue amounting to Rs. 120, and was to appropriate the balance Rs. 562, "besides the entire produce which he may have in excess of the profit in lieu of interest on the said peshgi money and remuneration for the thika;" I am quoting from the document itself (Ex. H).

(2.) Therefore until the mortgagor was prepared to pay the principal, subject to any question of account, the zarpeshgidar was entitled to remain in possession. Now, in taking the account the learned Judge in the Court below has come to the conclusion that the narpeshgidar had settled certain bakasht lands and had realized a premium of Rs. 1299 for such settlement, but that he should have received an additional Rs. 1911 that is to say, instead of obtaining the Rs. 1299 he should have obtained Rs. 3210, and in taking the account of the monies due by the plaintiff to the defendant. The Judge has made this allowance of Rs. 3210. Incidentally I might state here that the learned Judge has allowed the sum of Rs. 1299 twice over. That of course will have to be eliminated from the account.

(3.) In addition to that the learned Judge has come to the conclusion that as regards the rent of these bakasht lands settled by the mortgagee in possession another Rs. 11 on the total area settled should have been obtained. The case of the mortgagor plaintiff was that the mortgagee should have obtained as rent something much in excess of this amount. The learned Judge has in the result come to the conclusion that the difference between the rental at which he ought to have settled the lands and that which he in fact has settled them at, is Rs. 11. Capitalized that by twenty the Judge has allowed Rs. 220 in the account; and in addition to that he has allowed Rs. 125 to the mortgagor for cess, which the mortgagor himself has paid between the years 1932 to 1935.