BHARAT RAMANUJA DAS MOHANT Vs. SARAT KAMINI DASI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a Bait to enforce a mortgage-security, executed in his favour on the 14 September 1906, by the first defendant, Raja Balabhadra Singh Deb, in respect of what is known as the Raipur Zamindary. Besides the mortgagor, 85 other persons were made parties to the suit in the Court below, on the allegation that they were subsequent encumbrancers. They filed twelve separate written statements and raised numerous questions which were embodied in fourteen issues. We are now concerned with only one set of defendants, namely, defendants Nos. 8 to 19, who have been described in these proceedings as the Rathis and the Dutts. They set up a mortgage for Rs. 75,000 executed by the first defendant in their favour on the 28 January 1908. They contended that the security held by them, though subsequent in point of time, had priority over the mortgage in suit, by the application of the doctrines of subrogation and lis pendens. The Subordinate Judge held that these defendants were entitled to the benefit of the rule of lis pendens, but that the principle of subrogation was of no avail. In this view, the Subordinate Judge has granted the plaintiff a mortgage-decree, subject to the mortgage in favour of the Bathi and the Dutt defendants to the extent of Rs. 71,000 only. On the present appeal the plaintiff has contend-ed that the rule of lis pendent is of no assistance to the defendants,- who have not only controverted this argument but have also assailed the opinion expressed by the Subordinate Judge as to the inapplicability of the principle of subrogation. To elucidate the questions in controversy, it is necessary to explain the circumstances which led up to the mortgage set up by the Bathi and the Dutt defendants.

(2.) The Raipur Zemindari, which is the subject-matter of both the mortgages, originally belonged to one Harihar Singh whose name appears in the fallowing genealogical table; it is alleged to have been an impartible Raj governed by the rule of primogeniture according to the custom of the country and the usage of the family. HARIHAR SINGH. died 1849 Indra Singh, Lal Singh Mohar Singh died 1865, First wife Djjal- Balabhadra kumari, died 867, Singh. Second wife Nilkumari, died 1905. Rasik, Badhasyam,

(3.) Harihar Singh died in 1849, leaving three sons, Indra Singh, Lai Singh and Mohar Singh. Indra Singh, as the eldest, succeeded to the Raj, while his two brothers received maintenance. Indra Singh died in 1895, leaving him surviving his two widows and two brothers. The first widow, Ujjalkumari, died in 1867 and the second widow in 1905 after the death of both Lai Singh and Mohar Singh, On the 12 January 1906, Shortly after the death of Nilkumari, Batabhadra Singh instituted a suit (Suit No. 10 of 1908) for declaration of his title to the Raipur Zamindari and for recovery of possession thereof from various persons including the Rathis and the Dutts, who, he alleged, were wrongfully in occupation under titles created by Nilkumari. The Rathis and the Dutts resisted the claim on the allegation that they had acquired an indefeasible title, first by purchase at a sale held on the 20 January 1891 in execution of a decree, on a mortgage granted on the 22 April, 1885 to one Tarachand Pal by Nilkumari and Mohar Singh, and then again by a purchase on the 20 January 1892 in execution of a prior mortgage taken by one Kshetranath Mahapatra from the same mortgagors, The order- sheet in that suit, which has been received in evidence in this litigation, makes it abundantly clear that the suit was contentious and was actively prosecuted by both aides during many months. When the issues had bean framed, the suit was, after the usual adjournments, set down for trial on the 13 January 1908; on that date, on the application of both parties, time was allowed to them till the 17 January to compromise. On the date so fixed, it was recorded that the case had not been compromised, and the trial commenced. The hearing proceeded from day to day till the 23 January when the case was adjourned in view of a "talk of compromise," Ultimately, on the 28 January 1903, a sulenama (petition of compromise) was filed on behalf of the plaintiff Balabhadra Singh and the Rathi and the Dutt defendants as also an added defendant Brajalal Dutt. The Court accepted the petition of compromise, but could not forthwith make a decree on the basis thereof, as there were other defendants who had not compromised The case was accordingly directed to proceed against the remaining defendants. On the 30 January, a sulenama was filed on behalf of the plaintiff and another defendant and was accepted. The trial proceeded as against the other defendants who utilised, as appears from the order of the 14 February 1908, the documents previously filed by the Rathi and the Dutt defendants. The proceedings were much prolonged and the hearing did not conclude till the 6 March 1908, when judgment was reserved. On the 31st March 1908 judgment was delivered, and the suit was decreed, partly in terms of sulenama and partly on contest." The decree thus made gave effect to the compromise embodied in the petition presented on behalf of the plaintiff and the Rathi and the Dutt defendants on the 28th January 1908. The decree recites the terms of the compromise which now require examination.