RAM CHANDRA Vs. JAITH MAL

JUDGEMENT

(1.) The suit, which has given-rise to this appeal, was brought by the plaintiff- respondent for declaration of right and for "absolute possession" of the property in dispute on the allegation that the plaintiff was the real mortgagee under a deed, dated 12 June 1872, which stood ostensibly in the name of Ganga Bishan, and that the purchase of it by the latter in 1875 in enforcement of that mortgage was on behalf of the plaintiff, who has ever since been in adverse possession thereof. The cause of action, on which the plaintiff's suit is founded, is refusal by the defendant, the son of Ganga Bishan, to pay profits to the plaintiff. Both the lower Courts have decreed the plaintiff's suit. The plaintiff has preferred the present second appeal. The following pedigree will explain the position of the parties and other persons whose names occur in the narrative of the case:

(2.) It has been found by both the Courts below that the mortgage-deed, dated 12 June 1872, executed by one Chain Sukh ostensibly in favour of Ganga Bishan, was in favour of the plaintiff and Badri Das, to whom the mortgage money in fact be. longed. It is however not denied that Ganga Bishan brought a suit on foot of the mortgage for sale of the mortgaged property and purchased it himself in 1876. Ganga Bishan died in 1879, leaving his son Param Sukh, who was impleaded in the present suit as defendant 1. He died during the pendency of the litigation and is now represented by his adopted son, Earn Chandar, the respondent. Mutation of names was effected in favour of Ganga Bishan, and after his death, in favour of his son Param Sukh Das. Ram Chandar's name now stands recorded in place of his father and grandfather.

(3.) If there had been nothing else in the ease, the plaintiff's claim would have been clearly untenable in view of Section 66, Civil P.C., which was pleaded by the defendant and has been strongly relied on before me. The plaintiff however pleaded that he and Badri Das were minors at the time when the mortgage deed of 1872 was executed and their affairs were managed by Ganga Bishan, who took a mortgage-deed for the benefit of the plaintiff and Badri Das. It is also alleged that, in spite of the auction sale and mutation of names following it, Ganga Bishan acknowledged the right of the plaintiff and Badri Das, for whom he had purchased the mortgaged property and paid the entire profits to them. In other words, according to the plaintiff's allegations, though Ganga Bishan was declared to be the auction purchaser, he managed the property for the plaintiff and Badri Das, and paid the entire profits of the property to them, treating himself as a mere manager on their behalf. At a partition between the plaintiff and Badri Das this property was allotted solely to the plaintiff, a fact which is not denied by Badri Das, who is defendant 2 in the case. According to the plaintiff, this state of things continued for a considerable length of time, and his right was not questioned till three years before the institution of the suit, when profits were withheld from him. On these allegations the plaintiff, who claims to be in possession at least constructively, seeks a declaratory relief coupled with what he calls "absolute possession," which I take to mean that he is in possession but mu. tation of names stands in the name of the defendant, who for that reason is entitled to collect rents. Both the lower Courts decreed the plaintiff's suit and found that Ganga Bishan, who was the uncle of the plaintiff and Badri, managed their property during their minority and that the money advanced under the mortgage deed of 1872 belonged to them. It has been definitely found by both the Courts below that Ganga Bishan and Param Sukh paid to the plaintiff and Badri all the profits of the property after the auotion sale down-to the year 1899, i.e., for nearly 23 years, during which time their right was acknowledged unconditionally. In Sambafc 1956 the plaintiff left for Calcutta, where he resided for 15 years. There is no finding that during this period the plaintiff received profits from the defendants.