MUNNA LAL Vs. MAIKU LAL

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs-respondents for possession of property or in the alternative for a decree for sale thereof on the basis of the mortgage of the 12th of February 1878 The facts of the case are as follows--Shib Din and Bhup, two brothers, owned a certain property, the name of one of them only being recorded in the Government, papers. They created five mortgages upon their property. On the 27th of June 1873, a usufructuary mortgage to secure the sum of Rs. 1,000 was created in favour of one Baldeo Ahir. On the 12th of February 1878 a second mortgage, which is the basis of the present suit, was created by them also in favour of Baldeo Ahir to secure a sum of Rs. 1,422. On the 21st of March 1880 they gave a simple unregistered mortgage to Cheda Lal to cover the sum of Rs. 90. On the 14th October. 1882they gave a registered simple mortgage to one Edel, son of Baldeo, to cover a sum of Rs. 120. On the 11th of January 1885 they gave a registered simple mortgage to one Baldeo Hajam and Ors. to secure the sum of Rs. 4,000. In 1886 a suit was brought on the basis of the fourth mortgage by the mortgagee against the mortgagors without making any of the other mortgagees parties to the suit. The property was sold and purchased by the decree-holder. In 1898 Cheda Lal paid off the fifth mortgage. In 19.00 he brought a suit to redeem the fourth mortgage. He got a decree and paid up the sum due to the mortgagee. In this way Cheda Lal became the owner of the last three mortgages. In 1900 he brought a suit to redeem thefirst mortgage of 1873, the original mortgagee being dead, his son, Kalian (the father of the present plaintiffs-respondents), was made a party to the suit. He put in no defence. An ex parte decree was granted. The sum due on the mortgage was paid and Cheda Lal was formally put into possession on the 10th of December 1900. In September 1912 the present suit was brought by the plaintiffs- respondents as against the assignee of Cheda Lal to recover possession of the property on the basis of the deed of the 12th of February 1878 and in the alternative for sale of the property.

(2.) The Court of first instance treating the mortgage of 1878 as a simple mortgage gave the plaintiffs a decree for sale. On appeal the lower Appellate Court modified the decree and gave the plaintiffs a decree for possession of the property.

(3.) The defendant has appealed. The first point that he raises is that the mortgages of 1873 and 1878 really constituted one indivisible mortgage and the mortgagee not having set up his rights on the document now in suit in the former litigation, is barred by the rule of res judicata from putting it forward now.