JAI NARAIN SINGH Vs. GITA PERSHAD

JUDGEMENT

(1.) This is an appeal by defendants Nos. 4 and 10, arising out of a suit by certain reversioners for a declaration that a certain auction sale which took place on the 23 of July 1917 in execution of a decree dated the 10 of January 1914 is null and void and that the purchase made by Ram Ratan Singh, defendant, is not binding on them.

(2.) It appears that in 1910 a suit, numbered as 1913 of 1910, was instituted for the sale of the property in question, on the basis of an unregistered mortgage- deed alleged to have been executed on the 6 January 1895 by Ram Rup, the husband of Musammat Kunj Dei, and the father of Rudra Prasad, who was the husband of Musammat Ram Peari. In this suit were impleaded, Kunj Dei, the widow of Ram Rup and Musammat Ram Peari, his daughter-in-law. It appears that the plaintiff's father Durga Charan Pande, claiming to be the immediate reversioner interested in the property, intervened and applied to the Court to be made a party. On his application he was actually brought on the record and filed a written statement challenging the genuineness of the mortgage-deed then in suit. The two ladies also filed a joint written statement challenging the genuineness of the mortgage-deed then in suit. The two ladies also filed a joint written statement denying the genuineness of that deed and its consideration. Separate Vakils were engaged by Durga Charan Pande and by the ladies. The witnesses produced by the plaintiffs were cross-examined by both the legal practitioners and after the evidence was closed and arguments heard, the Court decreed the suit of the plaintiff, holding that the bond was proved to have been duly executed and was for consideration. The Court, however, exempted Durga Charan Pande on the ground that it was not proved that he was the immediate reversioner and that m any case he had no immediate interest in the equity of redemption which was in dispute at that time. The mortgage-decree was executed and in execution of that decree the property was sold and purchased by Ram Ratan Singh, defendant.

(3.) The present suit has been brought by Gita Pershad, the son of Durga Charan Pande, for the avoidance of that auction-sale. The Court of first instance was of opinion that, in fact, the mortgage-deed of 1895 was not a genuine document, but at the same time held that the plaintiff had entirely failed to prove that the previous suit was a collusive one or that the decree had not been obtained fairly against the widows. It accordingly dismissed the suit. On appeal the learned Subordinate Judge has come to a contrary conclusion. His findings are challenged in second appeal. The first matter which we have to consider is whether the finding of the learned Subordinate Judge, which is to be the effect that "the Munsif was wrong in arriving at the conclusion that the defence of Musammats Kunj Dei and Peari in that case was a bona fide one" can be interfered with in second appeal.