MUSAMMAT PARBATI; SAIYID MUHAMMAD MUZAFFAR ALI KHAN Vs. SAIYID MUHAMMAD MUZAFFAR ALI KHAN; MUSAMMAT PARBATI

JUDGEMENT

(1.) These are consolidated appeals from a decree of the High Court of Judicature for the North-Western Provinces at Allahabad, dated the 12th June 1907, which partly affirmed and partly reversed a decree of the Subordinate Judge of Saharanpur, dated the 14th July 1904, by which the suit had been dismissed.

(2.) The suit was brought on the 1st September 1903 to obtain proprietary possession of thirteen biswas, six biswansis, three tanwansis, six and a half kachwansis and a fraction of the twenty biswas of Mauza Lohari. The plaintiffs case briefly was that one, Mehdi Ali, whose representatives in title they alleged themselves to be, had in 1846 mortgaged the shares in Mauza Lohari, possession of which they claimed, to Sita Ram and his son Sheo Lai; that the mortgage debt had been discharged by the usufruct; and that the defendants were the representatives of the mortgagees and still held possession under no other title; and the plaintiffs claimed a decree for proprietary possession and for mesne profits. The case of the defendants was that they held possession not under the mortgage of 1846, but under a private sale of the 27th of May 1853, often biswas of Mauza Lohari, and under an auction sale of the 20th March 1854 of the remaining ten biswas of Mauza Lohari, which sales they alleged were made in order to discharge debts which had been contracted by Mehdi Ali. In effect the defendants case was that by reason of the sales of 1853 and 1854 this equity of redemption in the shares which were mortgaged in 1846 passed to those through whom they claimed title. It was also contended on behalf of the defendants that they were not precluded from setting up a title by adverse possession by the fact that possession of the shares in suit had been originally obtained under the mortgage of 1846.

(3.) The facts as found by the Board are briefly as follows :- On the 22nd July 1846 Mehdi Ali, who owned the whole twenty biswas of Mauza Lohari, borrowed Rs. 4,000 from Sita Ram and his son Sheo Lal, and executed in their favour a mortgage for the term of two years of the shares which are the subject of this suit. The motgage was unfructuary and the mortgagees were put in possession under it. Incidentally it may be mentioned that the Subordinate Judge found as a fact that the mortgage debt had been discharged by the usufruct before 1863. If it were necessary in this appeal to decide that issue their Lordships would probably not be prepared to dissent from that finding of the Subordinate Judge.