RAM SANEHI LAL Vs. JANKI PRASAD

JUDGEMENT

(1.) These two appeals arise out of a suit brought by the plaintiff Janki Prasad, the principal contesting respondent in S. A. No. 860 and the appellant in S. A. No. 890, for recovery of possession of a certain zamindari share. The circumstances which led to the present litigation are briefly as follows:

(2.) Sital Prasad and Sanehi Lal executed a deed of simple mortgage on 6th October 1911 in favour of certain persons (it is not necessary to mention their names) in lieu of Rs. 2,500 hypothecating a two biswa odd share in patti No. 1 and a one biswa odd share in patti No. 6 both of village Bhaineroli, for a term of ten years, subject to the condition that if interest was not paid in any year the whole of the mortgage money would become immediately payable. One Behari, who is now represented by his sons Ram Sanehi Lal and Sia Ram, first two defendants and appellants in this Court in S. A. No. 860 of 1928, obtained the mortgagee rights under the deed above mentioned, in the exercise of his right of pre- emption. Sital Prasad, one of the mortgagors already named, executed another deed of simple mortgage on 17 May 1912 in respect of his share of the property detailed above, i. e. half of it, to Baldeo Prasad. The second of: the two aforesaid mortgages was first sued on, and a preliminary decree obtained on foot thereof on 13 March 1923, which was made final on 13 November 1923.

(3.) The appellants in S. A. No. 860 in whom the prior mortgagees interest was then vested, were not made parties, and it is not disputed that they were not necessary parties and that the auction purchaser at a sale held in execution of the decree passed on the 2nd mortgage would take subject to the encumbrance created by the first mortgage. Before however such a sale could take place, the prior mortgage was put in suit and a preliminary decree obtained on foot thereof on 15 March 1924. A final decree followed in due course on 23 March 1925. Between the dates of the preliminary and final decrees passed on foot of the prior mortgage, the property to which the subsequent mortgage related, i. e., half of that to which the prior mortgage related was sold in execution of the decree passed on foot of the second mortgage, to which reference has already been made and was purchased by Janki Prasad.. He does not appear to have taken out delivery of possession, but succeeded in obtaining mutation of names. At the sale held in execution of decree passed on foot of the prior mortgage the mortgagees themselves were declared purchasers. On 20 November 1925, they took out delivery of possession and succeeded in obtaining mutation of names in their favour by an order which directed the removal of Janki Prasad's name. It is not disputed that the first two defendants, the prior mortgagees (as purchasers) were in actual possession up to the date of the suit which has given rise to this appeal. Janki Prasad sued for possession unconditionally and, in the alternative, for possession by redeeming the prior mortgage of 6 October 1911 to the extent of half, provided that it has not become time barred as against the plaintiff and still has effect on the property purchased by him (the plaintiff.)