PANCHANAN GHOSH Vs. MIR ABDUL MOLIK

JUDGEMENT

(1.) THIS appeal arises out of a suit on a mortgage. The plaintiff is unquestionably the mortgagee. He has made as defendants, the original mortgagor defendant No. 1, defendant No. 2, who claims to be a purchaser in execution of a money-decree obtained against defendant No. 1, and defendant No. 3, who claims to be in possession of the land and to be in possession as a landlord who ejected defendant No. 2 on the ground that the transfer in execution to defendant No. 2 was void and of no effect, and worked a forfeiture of the tenant s interest. The plaintiff, however, maintains that defendant No. 1 had a permanent transferable interest, and that the decree obtained by defendant No. 6 against defendant No. 2 was improper and collusive. The Subordinate Judge has decided both these points in favour of the plaintiff. The result then is that if that be correct--and it must be taken to be correct for the present purpose--the defendant No. 3, though he may be the landlord of this piece of land, is not in possession by virtue of a paramount title, but by virtue of a title improperly and collusively obtained by an arrangement between him and defendant No 2. In other words, his possession, on the findings of the Subordinate Judge, must be taken to rest on acquisition from defendant No. 2 and not on any paramount title. In this view of the case, it is obvious that the decision in Joggesar Dutt v. Bhuban Mohan Mitra 33 C. 425 : 3 C.L.J. 205 has no application, and the judgment of Mr. Justice Caspersz supporting that of the District Judge must be set aside. The case is sent back for re-hearing of the appeal in the lower Appellate Court, it being open to the parties to discuss the propriety of the findings of the Munsif. But, as I have already said, until those findings be set aside, they must be taken to be conclusive of the rights of the parties at this present stage.

(2.) THE appellant is entitled to the costs of the lower Appellate Court and of the High Court.