BALKARAN UPADHYA Vs. GAYA DIN KALWAR

JUDGEMENT

(1.) This is a second appeal by certain defendants in a suit for sale upon a mortgage. The mortgage was one dated May the 24th, 1893, and it was somewhat peculiar in its provisions. The mortgagors, Bhole Khan and Faulad Khan, were said to be the proprietors of a certain share in a mahal known as that of Bhole Khan in Mourn Chak English Zorawar Khan.

(2.) There was a further recital to the effect that the sir and khudkasht lands in this mahal were divided by private arrangement amongst the co-sharers and that certain specified plots had been assigned under this arrangement to the mortgagors. The deed purported, in the first place, simply to mortgage specified plots of sir and kkudkasht land with possession in return for the money advanced as consideration for the deed. There was, however, a stipulation to the effect that, if the mortgagees failed to obtain possession under the deed or were disturbed in their possession, they were to be entitled to sue the mortgagors for the recovery of their money and that in respect of this suit for recovery of money they might exercise any one of three alternative reliefs they might enforce their claim for their money against the specified plots of land mortgaged with possession under the deed or they might recover the money from the person or other property of the mortgagors or they might recover it from the zemindari share of one anna to which the specified sir and khudkasht lands were alleged to appertain. This suit was brought on 23rd of May 1910, that is to say just about seventeen years after the date of the deed, and the plaintiffs claimed to be within limitation by virtue of the special provisions of Section 31 of the Indian Limitation Act (IX of 1908) In the suit as brought the relief claimed was to recover the principal and interest by bringing to sale the specified plots of land set forth in the mortgage. A large number of defendants were impleaded besides the original mortgagors, there having been in the interval both a number of transfers and a partition of the mahal in question We are concerned with the defence set up by four of the defendants who are now the appellants before us. The case for these defendants in their written statements as originally filed was that they were not in possession of, and had no interest in, any of the plots of land sought to be sold under the plaintiff s claim and that consequently they had been unnecessarily impleaded as parties to the suit. At a considerably later stage it became clear to the plaintiffs that the suit as brought could not succeed without some sort of amendment of the plaint. This much at any rate was certain that there had been a partition in the year 1312 fasli by which the private distribution of sir and khudkasht lands amongst the co - sharers of the mahal, as it has existed in 1893, was completely set aside, and the particular plots specified in the mortgage-deed had been assigned to co-sharers other than the original mortgagors. Indeed some of them had been assigned to the plaintiffs themselves who were also co-sharers in the mahal.

(3.) Accordingly the plaintiffs, on the 4th January 1912, applied for permission to amend the plaint in various ways. They referred to this partition of 1312 fasli and stated that the original mortgagors had received certain specified plots of land in exchange for those set forth in the mortgage-deed. They also explained that, in consequence of the partition, the original share of one anna referred to in the mortgage-deed had become a share of one anna 7 pies 4 karants. They now asked the Court to give them a decree for the principal and interest of their mortgage debt, recoverable by sale both of the above mentioned share of one anna 7 pies 4 karants and of certain specified plots of land which they alleged the mortgagors had received in exchange for those set forth in the mortgage-deed. After the plaint had been amended, the defendants who are now the appellants before us filed a fresh written statement in the course of which they challenged the plaintiffs to prove that the mortgage-deed in suit had been executed for valid consideration. It also became clear at some later stage of the proceedings that the plaintiffs could not under the terms of the deed itself ask for a decree both against the specified plots of land and the zemindari share. The Court accordingly asked the plaintiffs to make a definite election between the two. The plaintiffs replied that, if the Court was of opinion that they were not entitled to a decree against both, then they would prefer to have a decree against the zemindari share only. This was done by an application dated February 29th, 1912, being the very date on which the suit was decided by the Court of first instance. The learned Munsif gave the plaintiffs a decree for principal and interest recoverable by sale of a 1 anna 7 pies 4 karants zemindari share which is in the possession of those defendants who are now the appellants before us. An appeal against this decree was filed in the Court of the District Judge and a large number of pleas were entered in the memorandum of appeal, including certain pleas impeaching the order of the first Court by which the amendment of the plaint had been permitted. It appears, however, from the order of the learned District Judge on appeal that the only points pressed before him were whether the consideration for the deed in suit had been paid to the original mortgagors and whether the plaintiffs had or had not obtained possession of certain plots of sir and khudkasht land in accordance with the terms of the mortgage-deed. These points were decided by the lower Appellate Court in favour of the plaintiffs, and it was noted in the judgment that the other points raised in the memorandum of appeal had been dropped". In the second appeal now before this Court the defendants-appellants again challenge the order of the first Court permitting the amendment of the plaint and they contend further that the finding with regard to the passing of consideration is vitiated by the fact that the burden of proof had been wrongly laid on the defendant. With regard to this latter point reference is made to a ruling of this Court in Bihari v. Ram Chander 10 Ind. Cas. 927 : 8 A.L.J. 368 : 33 A. 483. which has been discussed by the learned District Judge also. There can be no doubt that there is something peculiar and open to suspicion in the conduct of the plaintiffs in having refrained from bringing any suit on the mortgage-deed for so long a period as 17 years. The Court might have been entitled to infer from this delay with reference to the terms of the deed and the circumstance of the case generally either that there had been failure of payment of the consideration, or that the plaintiffs must in some way or other have enjoyed their interest for part at any rate of the period in question, by separate possession over some of the plots of sir and khudkasht land.