SHUKR-ULLAH Vs. DILDAR

JUDGEMENT

(1.) The facts which have given rise to this second appeal are these: The appellant and some others, on whose behalf the appellant has appealed, obtained two mortgages of certain shares in a patti of 4 annas. Subsequently, it is not clear whether after the redemption of the mortgages or before the redemption, the mortgagees purchased a small share (6 pies) out of the patti. The mortgages were redeemed. After the mortgage the appellants obtained possession over certain plots of land. Presumably this possession was obtained as mortgagees and on behalf of the mortgagors. The dispute arose when the mortgage was redeemed. The mortgagees refused to give up the lands over which they were in possession as mortgagees. Their contention was that they had become co-sharers in the lands and they were entitled to keep possession as co-sharers.

(2.) The courts below gave a decree for joint possession to the plaintiffs and also a decree for mesne profits. The plaintiffs have not annealed. The contentions of the appellant are (1) that there should have been no decree for joint possession and (2) that there should have been no decree for mesne profits.

(3.) On the first point it seems to us clear that the mortgagees were bound to hand over the lands, of which they got possession in the capacity of mortgagees and in no other capacity. When the share was redeemed the whole quantity of land should have been handed back to the mortgagors. After that act had been performed it was for the parties to settle between themselves, if possible, what lands out of these should be handed back to the mortgagees as representing a fair share of theirs. The mortgagees were not at all entitled to keep possession simply because they had become co-sharers in the patti. In this view the possession of the mortgagees over the lands which they have got in the capacity of mortgagees was unlawful. The decree for joint possession was therefore a very proper one.