RAM DULARE Vs. SAHDEO

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs-appellants for the recovery of possession of a fixed-rate holding, measuring 8 bighas 18 biswas situated in the village Bisora Khurd with mesne profits for the throe years preceding the suit. It appears that Bisheshar and Durga were brothers, who owned 22 bighas 10 biswas of a fixed rate holding in the village Misrapura, and 17 bighas 1 biswas of a fixed rate holding in the village Bisora. Durga died, leaving a widow Mt. Maheaha. Bisheshar died next, leaving a widow Mt. Neola. The plaintiffs are the song of the daughters of Bisheshar by Mt. Neola. Their allegation was that Bisheshar and Durga lived separately; but the Courts below found that they were joint. Anyhow the fixed rate tenancies in question were held after the deaths of Durga and Bisheshar by their widows Mt. Mahesha and Mt. Neola. Mt. Mahesha died in April, 1893. Mt. Neola died in 1912. They had in their lifetime mortgaged 2 bighas 19 biswas of land in the village Misrapura, it is said, with possession in favour of Bindeshri on the 20 October, 1885. They had similarly mortgaged 3 bighas 10 biswas of land in the village Bisora with possession in favour of Dhanpat in 1891. The remainder of the fixed-rate holding in either place was in their possession.

(2.) In 1892 zemindars of the village Misrapure filed a suit for arrears of rent for 1297 to 1299 Fasli in respect of the fixed rate holding situated in the village Misrapura, including the land mortgaged with Bindeshri, and obtained a decree for Rs. 58-1-6 to which Bindeshri and both the ladies were parties. It is alleged that a portion of the above arrears was due in respect of the land mortgaged with Bindeshri and the rest was about the remainder of the fixed-rate holding in that village, which was held by the ladies. Neither the mortgagee nor the ladies, took any steps to pay the decretal money. The result was that the zemindars got the mortgagees and the ladies ejected from the entire fixed-rate holding in the village Misrapura under Section 35 of the N.W.P. Rent Act (XII of 1881) and also took steps to realise the decretal money by the arrest of the mortgagee. The mortgagee then paid Rs. 76-2 to the zemindars and secured his release; but he did not do so till after the ladies and he himself had been ejected from the fixed- rate holding including the portion which was included in the mortgage.

(3.) Bindeshri next filed a suit for the recovery of the money paid by him to the zemindars against Mt. Neola as Mt. Mahesha had died meanwhile. That suit was decreed ex parte; and in execution of that decree he brought 17 bighas 1 biswa of the fixed-rate holding situated in the village Bisora to sale, and purchased it himself. In other words he discharged by that method a liability a portion of which was, at all events, due by himself.