HEMANTA KUMAR BOSE Vs. JITENDRA NATH PAL

JUDGEMENT

(1.) The facts giving rise to these two appeals, which arise out of two analogous suits between the same parties, may be shortly stated as follows: One Chunilal Jama-dar mortgaged certain properties to the plaintiff's father, Nagendra Kumar Bose, in the form of an English mortgage on 23 December 1929. The amount advanced on the mortgage bond was RS. 45,000. On 15 June 1932 Chunilal granted a lease of the property in suit, which was included in the mortgage, to defendant 1 for a term of 10 years, on an annual rental of Rs. 50. Nagendra obtained a decree on the basis of the mortgage instrument and in execution of the same the mortgaged properties were put up to sale and they were purchased by him on 14 March 1936. After purchase Nagendra obtained symbolical possession of the properties in due course but on attempting to take actual possession he discovered that defendant 1 was in possession of the disputed property on the basis of the lease which being in contravention of Section 65, T.P. Act, was not binding on the mortgagee. Nagendra is now dead and the plaintiff, his son and legal representative, has instituted both these suits. In Title Suit No. 149 of 1939 the plaintiff claimed to eject defendant 1 from the property in suit as a trespasser and to recover mesne profits from him from the date of his father's death till the date of actual delivery of possession. In the other suit which was registered as Title Suit No. 296 of 1940 he prayed for accounts against defendant 1 of the rents and profits which were appropriated by the latter from the date when the plaintiff's father obtained symbolical possession down to the date of his death.

(2.) Both these suits were contested by defendant 1. His substantial defence in Suit No. 149 of 1939 was that Chunilal having granted the lease in the ordinary course of management it was binding upon the mortgagee and as a lessee he had the right of redemption in respect of this mortgaged property. As he was not made a party to the mortgage suit his right of redemption was not extinguished and the plaintiff had no present right to dispossess him. In the other suit his defence was that he was not in any sense liable to account to the plaintiff for the rents and profits of the property which he realised and that the suit was not maintainable in law. The trial Judge overruled the defence in both the suits and decreed them in favour of the plaintiff. On appeal the judgment was reversed and the lower appellate Court has dismissed both these suits. It is against this judgment that these two appeals have been preferred, Second Appeal No. 1126 of 1941 being taken against the decision in Title Suit No. 149 of 1939 whereas Second Appeal No. 1127 of the same year has been filed against the decision in the accounts suit.

(3.) As regards Second Appeal NO. 1126 of 1941, the only point for consideration is whether the learned Judge was right in holding that as defendant 1 was not a party to the mortgage suit, the plaintiff was not entitled to recover possession of the property in the present suit. We may assume for purposes of this case that although the lease was in contravention of Section 65A, T.P. Act, and was not binding on the mortgagee nevertheless the lessee had a right of redemption under Section 91, T.P. Act. We might also agree with the Subordinate Judge that this right of redemption remained unaffected by reason of the lessee not being made a party to the mortgage suit. We do not think however that on that ground alone the present suit can be dismissed. As has been held in a series of decisions of which the cases in Gangadas Bhattar V/s. Jogendra Nath Mitter ( 07) 11 C.W.N. 403, Jugdeo Singh V/s. Habibullah Khan ( 07) 6 C.L.J. 612 and Nihar Mala Debi V/s. Sarojebandhu Bhattaoharjya , may be taken as examples, the purchaser in a mortgage sale in such cases can acquire the property as it existed at the date of the sale discharged of the mortgage lien but subject to the rights of those who were not made parties to the suit and he can sue for possession subject to the exercise of the right of redemption by such persons. The position undoubtedly would have been different if the equity of redemption was wholly unrepresented in the mortgage suit but that is not what has happened in the present case: vide the case in Bidhuranjan Sarkar V/s. Soleman Pramanik . The result therefore is that even on the view taken by the Subordinate Judge he should have given the plaintiff a decree for possession subject to the exercise of the right of redemption by defendant 1. It has been brought to our notice by Mr. Sitaram Banerji that the lease which was only for 10 years expired during the pendency of this appeal. The lessee therefore has no longer any subsisting interest in the property and he has not appeared before us to contest the appeal. In these circumstances we do not think that any useful purpose would be served by giving him an opportunity to redeem at the present moment. We accordingly allow this appeal and modify the judgment of the lower appellate Court. The plaintiff will be entitled to a decree for khas possession of the land in suit. The prayer for mesne profits, however, will be dismissed as the possession of defendant 1 cannot be said to be wrongful till the lease expired.