BHUSHI RAI Vs. GANESH RAI

JUDGEMENT

(1.) The question for consideration in this case is not one free from difficulty. On ; the 13 of June, 1908, Tilak Rai, Ganesh Rai and Mahabir Rai borrowed Rs. 160 from Bhushi Rai, the plaintiff appellant, and mortgaged with possession certain occupancy plots. There was an agreement that in case the mortgagee was ejected from the occupancy holding or from any portion thereof by any act on the part of the mortgagors or their heirs or legal representatives, he would be entitled to claim possession of the occupancy holding or to recover damages at the rate of 10 maunds per bigha from the date of his ejectment, or to recover the entire money due to him, with interest at the rate of 2 per cent, per mensem from the date of his ejectment till the1 date of realization, from the person and the other property of the mortgagors, including two houses specifically described in the deed. There was a further covenant that the occupancy holding and the two houses aforesaid shall be deemed to be mortgaged and hypothecated for the repayment of the money secured by the mortgage. The occupancy holding in question was situated in chak Abdulla Khatib, alias Mauza Raziapur. The houses in question were situated in Balapur.

(2.) On the 16 of February, 1910, a deed of further charge was executed for Rs. 99-15, which provided for the repayment of the money due thereon, including interest, at the time of the repayment of the above mortgage and also mentioned that the occupancy holding and one of the houses shall stand mortgaged and hypothecated for the above amount.

(3.) On the 5 of October, 1910, there was a second deed of further charge executed for Rs. 49-15 couched in almost identical terms, with this difference that the house hypothecated for the repayment of the money due on that deed was-- the other of the two houses.