TUKARAM ALIAS TULARAM MAHADJI IZADAR Vs. EKNATH PUNJAPPA

JUDGEMENT

(1.) THIS is a second appeal by the defendant against concurrent findings of the Courts below in the plaintiff's favour, by which the plaintiff obtained restoration of a field. In the year 1928, one Dattaram mortgaged this field to the defendant. The plaintiff Punjappa instituted a civil suit against Dattaram in 1929 and obtained a decree against him. In executing that decree he had the field attached and sold. The field was purchased by one Kashinath at the auction sale for Rs. 72. The purchase was subject to Dattarama's mortgage. The date of the purchase is 13th January 1934. On 8th April 1935, the plaintiff bought the field from Kashinath by a registered sale deed; the consideration e consisted of Rs. 100 and an undertaking to pay off the mortgage to the extent of Rs. 1000. More than two months after this the defendant, on the basis of his mortgage, brought a suit against the three sons of Dattaram who had died, and the auction purchaser Kashinath. He did not join the plaintiff who was a transferee by a registered sale deed before the commencement of the suit. The defendant obtained a final decree for foreclosure and took possession through the Court on 22nd February 1937. The plaintiff, who had been in possession of the field for nearly two years, filed an application under Order 21, Rule 100, Civil P.C., for restoration of possession. That, however, was disallowed as the Judge decided that the matter could not be determined by summary procedure. The plaintiff accordingly filed the suit out of which this appeal arises for possession of the field. The defence was a denial of the sale deed. It was also contended that at the auction purchase Kashinath was a benamidar of the plaintiff and that consequently the plaintiff himself was bound by the mortgage decree. It was also urged that as in the sale-deed by Kashinath in the plaintiff's favour the plaintiff had undertaken to pay the mortgage debt, and as he had not done so, the sale could not be said to be for consideration, and that the plaintiff's suit was not maintainable. The plaintiff admitted that he had purchased the field in question subject to encumbrances on it, and that he was prepared to redeem the mortgage after the amount due thereon had been properly ascertained, but he contended that the foreclosure decree, which the defendant had obtained, was not binding on him as he was not made a party to it, and that he was entitled to possession irrespective of the question of the redemption of the mortgage. He claimed that his purchase was for consideration. The trial Court found that the plaintiff was not a benamidar of Kashinath, and in this finding the lower appellate Court concurred. There was also a finding in the trial Court that the defendant was not in a position to enforce his mortgage suit as he had been adopted into another family after the execution of the mortgage in his favour. This contention was very properly negatived in the lower appellate Court and needs no further consideration. The trial Court also found that the plaintiff was not bound by the defendant's mortgage decree as he was not a party to the mortgage and had been the owner of the field before the suit was filed. This was also confirmed in the lower appellate Court and Sheoram v. Jamnabai A.I.R. 1923 Nag. 273 and Ramnath v. Hazarilal were cited in support of this proposition. A contention was advanced by the appellant in the lower appellate Court that in any case the plaintiff's decree for possession should have been subject to the condition of his paying Rs. 1000 as he himself had undertaken the liability. On this the learned Additional District Judge held that the defendant could not be allowed to take advantage of his own wrong and that if the plaintiff were joined in a mortgage suit, there were several pleas which he might, with propriety, take concerning the amount due on the mortgage. It was also held that the decision in Shobhalal Shyamlal v. Sidhelal v. Sidhelal Halkelal A.I.R. 1939 Nag. 210 in which it was laid, down that a charge accruing on a vendor's lien under Section 55(4)(b), T.P. Act, could be incorporated in a suit for possession by the vendee, so that the vendor can enforce it in execution, had no application since the redemption price remained unsettled. It was also held, following the decision in Shobhalal Shyamlal v. Sidhelal v. Sidhelal Halkelal A.I.R. 1939 Nag. 210, that the Court could not pass a decree in a suit for possession conditional on the balance of the purchase money being paid. The defendant has now filed a second appeal.

(2.) THE first ground of attack is that the decision that the plaintiff was not the actual purchaser at the auction sale, and that Kashinath was not a benamidar, is vitiated by the burden of proof having been wrongly placed on the defendant. It is contended on the authority of Ghunsham Das v. Umapershad A.I.R. 1919 P.C. 6 and V.E.A.R.M. Firm v. Maung Ba Kyin that the burden is placed on him who fails in an application made under the provisions of Order 21. In both these cases a previous application had been made under the provisions of Order 21, Rule 58, Civil P.C., but in neither of these, which are decisions of their Lordships of the Privy Council, has it been laid down that the burden of proof lies on him who fails in the application. Indeed, in V.E.A.R.M. Firm v. Maung Ba Kyin which is the same as V.E.A.R.M. Firm v. Maung Ba Kyin the burden was placed on a person who had succeeded in resisting an application under Order 21, Rule 58, Civil P.C., and in so far as the head-note in Ghunsham Das v. Umapershad A.I.R. 1919 P.C. 6 implies that the burden lies on the unsuccessful applicant, it is misleading and is not a correct interpretation of the view of their e Lordships which is contained in a single sentence:

(3.) IT is next contended that the decree for possession should be subject to conditions, and that, in equity, since the plaintiff has admitted that he is bound to redeem, he should not be given possession until he has redeemed. Although the correctness of the law as laid in Sheoram v. JamnabaiA.I.R. 1923 Nag. 273 and Ramnath v. Hazarilal is not denied, authority is cited for the proposition that possession should be conditional of redemption. These authorities are Bhodai Shaik v. Lakshinarayan Dutt , Premsukhdas Nhikamchand v. Peerkhan A.I.R. 1926 Nag. 21 and an unreported decision of this Court in Mt. Rajrani v. Mt. Kunwarbai Second Appeal No. 187 of 1938, in which reference to these two cases is made. It is contended that there is very close analogy between this last case and that in Bhodai Shaik v. Lakshinarayan Dutt .