MAKUND SWARUP Vs. KISHUN CHAND SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff, Makund Swarup, arising out of a suit brought by him for recovery of possession over a three-fourth share of mortgagee rights in the entire 20 biswas of village Ekka Tajpur alias Sikhra and a three-fourth share of mortgagee rights in the entire 20 biswas of mauza Rasulpur. The plaintiff further claimed to recover a sum of Rs. 2,500 principal and Rupees 933-6-0 interest on account of profits for the year 1332 Fasli and a sum of Rs. 4,000 principal and Rs. 1,133-6-0 interest on account of damages for the year 1333 Fasli. There was also a prayer for the recovery of Rs. 3,750 principal and Rs. 387-9-0 interest as mesne profits for the year 1334 Fasli and Kharif 1335 Fasli. The plaintM impleaded as defendants to the suit Thakur Karan Singh, Deep Chand and Tejpal Singh; minor sons of Somraj Singh and Raghubir Singh.

(2.) The admitted facts which led to the institution of the suit may be stated. On 30 November 1904 a usufructuary mortgage was executed by Fazal Shah, Haidar Shah and Wazir Begum in favour of Makund Swarup and Ghafoor Bakhsh for Rs. 50,000, mortgaging four villages : (1) Landdoki Hasanpur, (2) Chashi, (3) Ekka Tajpur alias Sikhra and (4) Rasulpur. It was stated in the mortgage deed that Makund Swarup had advanced Rs. 30,000 and Ghafoor Bakhsh Rs. 20,000 and the former was a mortgagee of three-fifth share and the latter of a two-fifth share. This document was registered on 17 December 1904. On 24 January 1908 Ghafoor Bakhsh sold his mortgagee rights to Makund Swarup with the result that Makund Swarup became the sole mortgagee of the four villages mentioned above. On 18 August 1909 Makund Swarup executed a theka in favour of Girwar Singh and Tulsi Ram of three villages, Landdoki Hasanpur, Ekka Tajpur alias Sikhra and Rasulpur for 15 years from 1317 Fasli to 1331 Fasli, corresponding to the period from 1 July 1909 to 30 June 1924. This document is printed at p. 23 of our record. The thekadars were given the right to enter into possession over the leased property for a term of 15 years and they were required to pay a sum of Rs. 4,300 every year to Makund Swarup.

(3.) They had also to pay the annual Government revenue of Rs. 3,171. It may be mentioned that Girwar Singh and Tulshi Ram Singh, the two lessees, are first cousins, being the sons of two brothers. On 18 September 1920 Makund Swarup sold two-fifth of his mortgagee rights in all the four villages to Kishun Chand, Somraj and Raghubir. Kishun Chand was entitled under the sale deed to half of two-fifth and Somraj and Raghubir to the remaining half of two-fifth. Makund Swarup thus retained in himself three-fifth of the mortgagee rights. In the year 1922 Tulshi Ram, one of the thekadars died leaving behind him three sons, Karan Singh, Shib Singh and Naubat Singh, who became entitled to the lessee rights of Tulshi Ram. The position in 1922 after the death of Tulshi Ram therefore was that Makund Swarup had three-fifth mortgagee rights and Kishun Chand, Somraj and Raghubir had two-fifth mortgagee rights in the above mentioned four villages and Girwar Singh, Karan Singh, Shib Singh and Naubat Singh had lessee rights over three villages. It may be stated here that the village Chashi was not included in the lease and it remained in the possession of Makund Swarup and even when on 18 September 1920 Makund Swarup sold two-fifth of the mortgagee rights to Kishun Chand, Somraj and Raghubir, he did not deliver possession to the vendees of even a proportionate share in village Chashi.