BHAGWAT RAI Vs. GORAKH RAI

JUDGEMENT

(1.) This appeal arises out of a redemption suit. One Girja Rai had two holdings: one of 5 bighas 12 kathas 9 dhurs in village Harpur and another of 1 bigha 8 kathas 5 dhurs in village Ekma. He by a deed, dated 17 January 1910, gave these two holdings in usufructuary mortgage to the defendants. Two years later, in the year 1912, he sold 2 bighas out of the Harpur holding to the mortgagees and then left the village for an unknown destination and has not been heard of since then. The plaintiff claiming himself to be the heir of Girja Rai, he not having heard of him for more than seven years, brought the present suit for redemption of the mortgage of these two holdings. This suit was resisted on the ground that in respect of the two bighas of Harpur holding the equity of redemption was transferred by Girja Rai to the mortgagees themselves and therefore the right of redemption was lost and further that the Bettiah. Raj, the landlord of Harpur holding, treated it as an abandoned one and settled it with Naujad Rai who sold it to the defendant who was in possession not as a mortgagee but in his own right.

(2.) The equity of redemption was lost on account of the entry of the landlord on the holding. Regarding the Ekma holding it was alleged that the same was sold for arrears of rent and was purchased by one of the defendants who under a family arrangement had nothing to do with the mortgage. The trial Court decreed the suit except in respect of two bighas of the Harpur holding. The lower appellate Court agreed with the trial Court in respect of the Ekma holding and dismissed the defendant's appeal. The defendant's appeal (S.A. No. 245 of 1932) to this Court in respect of it has been dismissed on 7 November 1933. The lower appellate Court however entirely dismissed the plaintiff's suit in respect of the Harpur lands holding that Girja Rai abandoned it and that the Bettiah Raj, treating it as such, entered upon it and settled it with Naujad Rai and the latter sold it to the defendant. The plaintiff has preferred this second appeal which only relates to Harpur lands.

(3.) The learned advocate for the appellant has assailed the judgment of the learned Subordinate Judge on the ground that his decision as to the holding being abandoned was wrong in law. It is also contended that there was no change of possession. The defendant who was in possession as a mortgagee continued in possession as such. The learned Subordinate Judge when dealing with the question of abandonment says: The question in each case is a question of intention. If a tenant leaves his village having made arrangements for the cultivation of the land and the payment of the rent during his absence, which he intends to be temporary, there would be no abandonment. But if he makes these arrangements and then leaves the village never intending to return, there will be abandonment.