LAWS(PVC)-1922-12-94

PRIYA LAL Vs. BOHRA CHAMPA RAM

Decided On December 05, 1922
PRIYA LAL Appellant
V/S
BOHRA CHAMPA RAM Respondents

JUDGEMENT

(1.) The facts which have given rise to this appeal are as follows: Daya Ram made a mortgage of two properties to Jia Lal, now represented by the defendants, on the 1 of October, 1875. He made a second mortgage of one of the properties to Durga Prasad, now represented by the plaintiff, on the 8 of September, 1877. On the 28 of November, 1878, Durga Prasad sued on his mortgage, without impleading Jia Lal, the prior mortgagee, and obtained a decree for sale. In execution of this decree he purchased the property on the 20 of June, 1879, and on the 29 of July, 1891, he obtained formal possession.

(2.) On the 15 of March, 1889, Jia Lal, the prior mortgagee, brought a suit on his mortgage, but did not implead the puisne mortgagee, Durga Prasad, in the suit. He obtained a decree and in execution of his decree purchased the property on the 20 of February, 1891, and, later on, obtained possession. The position of affairs on that date was that the prior mortgagee had purchased the property without impleading the puisne mortgagee auction purchaser, and thus the rights of the puisne mortgagee, Durga Prasad, to redeem the prior mortgage of Jia Lal remained unaffected. In other words, the title obtained by the two auction purchasers remained defective. Jia Lal was liable to be redeemed by Durga Prasad, and Durga Prasad was under a liability to pay off Jia Lal before he could obtain an absolute title to the property.

(3.) On the 5 of June, 1916, Durga Prasad made a gift of the property to Priya Lai, plaintiff, and on the 23 of January, 1919, Jia Lai's son, Champa Ram, sold the property to Babu Lal. The present suit was then brought by Priya Lal, the representative of the puisne mortgagee, to redeem the prior mortgage of 1875 against Babu Lal, the representative in interest of the prior mortgagee auction purchaser. He further claimed mesne profits on the ground that the mortgage had been satisfied by the usufruct. The defence pleaded was that the plaintiff had no subsisting right to possession. It was also contended that Durga Prasad had no right to sue without payment of the prior mortgage and therefore the decree of Durga Prasad was altogether null and void, and that the present suit was barred by time. They claimed the entire amount of the mortgage and interest and contended that the claim for mesne profits was improper. Babu Lal defendant further pleaded that he and his predecessor had been in adverse possession for more than twelve years and the claim was barred by twelve years adverse possession. He denied the liability to pay mesne, profits and contested the correctness of the amount claimed by the plaintiff.