BHEKDHARI MAHTON Vs. RADHIKA KOER

JUDGEMENT

(1.) The facts leading up to the present appeal are these: By a mortgage deed dated 9 March 1915 one Narayan Prasad mortgaged certain properties to one Rajendra Prasad, one of the properties being mauza Chak Pahar, tauzi No. 7399. Later on one Bhagwan Hajam in execution of his simple, money decree against him purchased the interest of Narayan Prasad in the mortgaged properties and obtained possession of them. Rajendra Prasad brought a suit against Bhagwan Hajam for a declaration that the latter's purchase was subject to the mortgage in favour of the former. That suit was decreed. Rajendra Prasad then brought a mortgage suit and in due course put the mortgaged properties to sale and purchased them on 25 January 1926. Delivery of possession was formally given to him on the 16 June 1926.

(2.) Subsequently he sold five out of seven properties, which he had purchased, to the plaintiff by a sale deed dated 2 August, 1926. One of the properties so sold was Chak Pahar the subject matter of the present litigation. In the meantime Bhagwan Hajam who was in possession of the mortgaged properties by virtue of his purchase in execution of the simple money decree, fell into arrears of cesses and notice under Section 7, Public Demands Recovery Act, was served on him on 26 September 1923. Chak Pahar was sold in execution of that certificate and was purchased by one Angnu on 19 March 1924, but later on he transferred it to the present defendant. The plaintiffs not being able to get their names recorded in the Collectorate Register by expunging the name of the defendant who had already got his name recorded in respect of Chak Pahar, brought the present suit for confirmation of possession or for recovery of possession of the property; in suit, basing their title on the purchase by Rajendra Prasad in execution of the mortgage; decree.

(3.) On behalf of the defendant it was urged that the effect of the service of notice under Section 7, Public Demands Recovery Act, on Bhagwan Hajam was that a charge was created on his properties in favour of the Secretary of State for the arrears of ceases due to Government. The suit having been instituted in January 1924, some three months after the service of notice the Secretary of State was a necessary party to the mortgage suit, and Angnu who purchased the property which was subject to the charge, was not bound by the mortgage sale and the plaintiffs were not therefore entitled to recover possession from the defendant who had acquired the right, title and interest of Angnu in the village in suit. The first Court decreed the plaintiffs suit, but on appeal the learned District Judge has allowed the defendant the option of redeeming all the mortgaged properties by paying up the entire mortgage dues of Rajendra Prasad. The defendant has preferred this second Appeal.