MT KHATUN FATIMA Vs. SHIB SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit for declaration that a certain share of 5 biswas odd in village Mahnishora, mahal Abdur Rahman, in district Etah, is not liable to be sold in execution of a mortgage decree obtained by defendants 1 to 3. Both the Courts below have dismissed the suit.

(2.) The share in dispute belonged to one Abdur Rahman, who owned a much larger, share, namely, 2 biswas and 171/2 biswansis, in the aforesaid village. He mortgaged one biswa ten biswansis of his share to Baldeo Prasad. The remaining 1 biswa, 71/2 biswansis is not in dispute. It is common ground that the share which is in dispute in the present litigation is included in the 1 biswa and 10 biswani share which had been mortgaged to Baldeo. In the settlement of 1308 F. 2 biswas, 171/2 biswansis share was made a separate ma-hal of 20 biswas and the 1 biswa 10 biswani share mortgaged to Baldeo consequently became 10 biswas, 8 biswansis and 14 kackwansis. In l909 the sons of Baldeo sued on their mortgage and had the mortgaged property sold in execution of their decree. The sale of only 10 biswas was enough for satisfaction of the decree. The remaining 8 biswarasi and 14 kachwansi share was saved. The plaintiff was declared to be the purchaser of the aforesaid 10 biswas for a sum of Rs. 2,638-3-0.

(3.) By some mistake the sale certificate mentioned only one biswa as the property sold to the plaintiff. The mistake was not detected at the time, probably because 10 biswas were roughly taken to be equivalent to one biswa, as it was before 1308 F, and which was supposed to have been mentioned in the sale certificate. Mutation of names was effected in favour of the plaintiff only in respect of one biswa. The remaining 9 biswas continued to be recorded in the name of Abdur Rahman or his representatives in interest. By a deed, dated 28 June 1917, Abdur Rahman sold plot No. 124, measuring 14 bighas, 10 biswas, to the contesting defendants. The sale-deed contained an indemnity clause and a collateral security under which Abdur Rahman hypothecated a 6 biswa share for satisfaction of the vendees claim, in case they were deprived of possession of the property conveyed in the sale-deed. The vendees were ejected from plot No. 124 at the instance of some other persons. Accordingly they sued for recovery of compensation by sale of the 8 biswas hypothecated to them as a collateral security. The plaintiff was a party to that suit and objected to sale of 5 biswas 18 bis-wansis 18 kachwansis and 5 nanwan-sis, now in dispute, which could come out only out of the 10 biswas which she had purchased at the auction. The Court refused to adjudicate on her claim in that suit and passed a decree for sale in favour of the contesting respondents. The plaintiff then brought the suit, which has given rise to this appeal.