SRIMANTA SEAL Vs. BINDUBASINI DASI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in a suit for confirmation of possession upon declaration of title and for an injunction to restrain the execution of a decree. The subject-matter of the litigation is an occupancy holding which has been assumed to be non-transferable for the purposes of this suit. The holding belonged to a family of Kundus, and their right, title and interest was purchased on the 15 December, 1909 by one Kumud Sundari Barmani at a sale in execution of a money-decree. The sale was confirmed on the 12 January, 1910, and the purchaser obtained delivery of possession on the 30 January following. On the 16 February she assigned the holding to the present plaintiff. It appears that on the 7 July, 1909, the Kundus had executed in favour of the Shahas (the first two defendants in this litigation) a mortgage of this holding. The mortgagees instituted a suit to enforce their security and joined as defendants not only the mortgagors but also the present plaintiff. That suit was-decreed on the 27 February, 1914, and the preliminary decree was made absolute-on the 29th September, 1915. On the 14 August, 1918 the plaintiff commenced the-present litigation, substantially on the ground that the mortage was inoperative, because the holding was non- transferable, that the decree passed thereon was equally inoperative and that he had acquired a title independent of the mortgage under a settlement from the superior landlord taken on the 1 September, 1910. The Courts below have dismissed the suit. They have found that the alleged settlement by the landlord was inoperative, because at the time it was made, there had not been in fact and in law such an abandonment of the holding as entitled the landlord to re-enter. We are of opinion that it is not necessary to determine the effect of the alleged settlement by the landlord in favour of the plaintiff, because the plaintiff is manifestly incompetent to maintain this action. The plaintiff was joined as a defendant in the suit instituted by the mortgagees to enforce their security. At that time, he had a two-fold character, on the assumption that the alleged settlement taken from the landlords was operative in law. He was no doubt joined as a defendant as the purchaser of the equity of redemption. But he could also set up his title paramount derived from the landlords. THIS is clear from the decision in Hare Krishna V/s. Robert Watson and Co. (1901) 8 C.W.N. 365 which was explained in Joggeswar Dutt V/s. Bhuban Mohan Mitra (1926) 33 Cal. 425. In the case of Hare Krishna V/s. Robert Watson and Co. (1901) 8 C.W.N. 365 an action was commenced by a mortgagee of an occupancy holding to enforce the security as against the mortgagor; and Messrs. Watson & Co. who were the landlords of a part of the mortgaged holding and assignees of the equity of redemption of the rest, were joined as defendants. Messrs. Watson & Co. did not offer to redeem but set up a paramount title, on the ground that the holding was not transferable and the mortgage was invalid as against them in their character as landlords. The plaintiff did not ask that the Watson & Co. should be dismissed from the suit, but accepted their challenge; and after trial on the merits the case was remanded. He then came to this Court, and argued that the suit had been improperly framed, and that the paramount title set up by Messrs. Watson & Co. should not be investigated. Their contention was overruled. Banerjee, J., pointed out that Messrs. Watson & Co. who set up a hostile title had a two-fold character in one of which they would be entitled to redeem and to that extent they would be proper and necessary parties to the suit. In the other character, they would be entitled to raise the question, whether the mortgage was enforceable against the property in their hands. It is clear that the rule that a question of paramount title cannot be investigated in a mortgage suit is subject to exception; see the case of Bhaja Chowdhury V/s. Chuni Lal Marwari (1906). 5 C.L.J. 95 One of the exceptional cases is furnished by the litigation before us. Here, the plaintiff was a defendant in the mortgage suit. He had a two fold character. As purchaser of the equity of redemption, he was properly before the Court as settlement holder from the superior land-lord, he could set up a defence that the mortgage could not be enforced against the property in his hands. He did not take that defence and the result was that a decree was made for sale of the mortgaged property in his presence. The decree is operative against him and he will be bound by the result of the sale in execution. In the present litigation, he seeks to avoid the decree and to make it inoperative, though it was passed in his presence and is obligatory upon him. Clearly such a course is not permissible if this suit were allowed to be maintained, the only possible result would be a multiplicity of litigation.

(2.) THE result is that this suit must standi dismissed on the ground that the plaintiff is not competent to maintain it. THE appeal will be dismissed with costs, thought not for the reason assigned by the Subordinate Judge.