GANGA SAHU Vs. KANHU LAL MARWARI

JUDGEMENT

(1.) This appeal by the plaintiffs arises out of their suit to recover possession after declaration of title over a portion of plot No. 9004 in the village of Umardaraz, Tauzi No. 1219. The plot in question has an area of 1 bigha 11 kathas 1 dhur; but the plaintiffs say that they have been dispossessed of 3 kathas 17 dhurs with a house situated thereon. The plaint alleges that the defendants who are very turbulent persons and the enemies of the plaintiffs on 20 July 1927, without any right forcibly entered the house and took possession in spite of the resistance of the plaintiffs. The defence was that the plaintiffs ancestor had mortgaged the house in suit with other properties to defendant 1 on 18 September 1908, that this defendant sued on his mortgage, obtained a decree, put the house to sale, purchased it and was put in possession. Further that on partition between this defendant and some members of the plaintiffs family the house was allotted to this defendant who has since been in lawful possession.

(2.) It is admitted that there was a mortgage and that the mortgaged property was sold up. But the plaintiffs contend that the mortgage referred to another property situated immediately to the south of the house in suit and falling entirely within plots Nos. 9038 and 9039 in village Habibpur in the zamindari of Mt. Bittu Kumri. A reference to the map prepared by the Commissioner shows that there is a house and gola forming practically one continuous block, its length being from north to south; the northern portion falling within village Umardaraz and the southern portion falling within village Habibpur.

(3.) The question therefore is whether the mortgage and the proceedings on the mortgage refer to the entire block or only the southern portion. The description in the mortgage bond was followed in describing the property in the mortgage suit and decree and in proceedings for delivery of possession and is as follows: Item 6.--1 Gola facing south, situated in mauza Habibpur, paying a ground rent of Rupees 3-13-0, lying within the zamindari of Mt. Palto Kueri and others together with all the materials and existing appurtenances thereto including residential right in 2 kathas and 5 dhurs of land. BOUNDARIES: North.--Nad (tub) and cow-shed of the executant. South.--Public road. East.--Ramdhin Sahu. West.--Abdul Mian, son of Mania Baksh, Survey Khasra Nos. 9038 and 9039, 1 kita."