SOBHA RAM Vs. TURSI RAM

JUDGEMENT

(1.) This is a plaintiff s, appeal arising out of a suit for recovery of possession of immovable property and mesne profits. The plaintiff also offered to let the defendants Nos. 1 and 2 redeem him if they chose to do so.

(2.) The facts of this case are as follows :--On the 5 of July, 1889, a mortgage- deed was executed by one Dharamjit ostensibly in favour of Tursi It is not now disputed that this Tursi was benamidar for Sobha Earn, the real mortgagee. On the 27 of July, 1896, Dharamjit sold the equity of redemption in the mortgaged property to Ganga Earn and Dhanwant. It may be stated that although the sale- deed stood in the name of these transferees, the mutation of names was subsequently effected in favour of the sons of these persons. It is not necessary at this stage to state all the circumstances under which the mutation of names was effected in that way, as that question has not been gone into by the court below.

(3.) On the 20 of December, 1909, Sobha Ram, the real mortgagee, brought a suit for sale against the mortgagor, Dharamjit, as well as his transferees, Ganga Ram and Dhanwant. He also impleaded a prior mortgagee, Badri. The sons of Ganga Ram and Dhanwant were, however, not impleaded. It appears from the judgment in that case that the position taken up in defence by Ganga Ram and Dhanwant was to put the plaintiff to strict proof of his allegations. It does not appear that there was any suggestion thrown out that the suit was defective on account of any non-joinder. The suit terminated in a decree for sale on the 6 of June, 1910, and the appeal preferred to the High Court by Ganga Ram and Dhanwant was also ultimately dismissed. On the 20 of August, 1913, in execution of the mortgage decree for sale, the property was put up for sale and purchased by the decree-holder Sobha Ram himself. The sale was confirmed and the sale certificate was granted to the decree-holder purchaser later on. The record of that proceeding is not before us, but it appears that after the sale had been confirmed, the auction-purchaser put in an application,- which, however, is not on the record, purporting to be under Order XXI, Rule 95. In this he impleaded Tursi Ram and Chhedu, the sons of Ganga Ram and Dhanwant, judgment-debtors, alleging that these latter persons were in possession of the property on behalf of their respective fathers. Objections were raised by the sons mainly on the ground that they were in possession of the property on their own account and were holding it under some sort of partition with their fathers. The learned Subordinate Judge, who had this application before him, came to the conclusion that Tursi Ram and Chhedu were in possession on their own account and not on behalf of the judgment debtors. He accordingly dismissed the application on the 3 of July, 1914.