RAJA KAMAKSHYA NARAIN SINGH Vs. RAMZAN ALI

JUDGEMENT

(1.) This appeal, which is by the plaintiff, arises out of a suit brought by him for recovery of khas possession with mesne profits, of village Mohanpur described in the schedule to the plaint, or in the, alternative, for sale of the village for recovery of the proportionate mortgage money chargeable on it under the plaintiff's mortgage bond dated 14 August 1926. The village Mohanpur forms part of Gadi Sirampur bearing tauzi No. 10 of the Hazaribagh Collectorate. Raja Wazir Narain Singh, who was the proprietor of Gadi Sirampur, mortgaged it for Rs. 1,47,000 under a simple mortgage bond dated 14 August 1926 to the Manager of the Court of Wards in charge of the plaintiff's estate, the plaintiff being then a minor. In 1929 the Manager on behalf of the plaintiff brought a suit to enforce the mortgage, and he obtained a mortgage decree on 18 September 1931. In execution of the decree, he purchased the mortgaged property on 6 April 1935 for Rs. 3,60,000, and obtained delivery of possession through Court on 16th February 1936. The Court of Wards released the plaintiff's estate to him on his attaining majority on 10 August 1937.

(2.) Subsequently the plaintiff came to know that on 20 July 1928 Raja Wazir Narain executed a dowami pattah (permanent lease) in respect of the disputed village in favour of one Mangar Mistri, predecessor-in-title of the defendants who are now in possession of the village. In the mortgage suit brought by the Manager of the Court of Wards on behalf of the plaintiff, Mangar Mistri was not made a party as the Manager was not aware of his interest. His dowami lease was not given in the ordinary course of management and is not binding on the plaintiff as it affected his mortgage which could not be fully satisfied by sale of the mortgaged property. The defendants, therefore, have no right to remain in possession of the village. With these allegations the plaintiff instituted the present suit on 14 June 1940, that is to say, within three years of his attaining majority. In Schedule B of the plaint he gave an account of the proportionate mortgage money chargeable on the disputed village. The defendants contested the suit mainly on the ground that the dowami lease was granted in the ordinary course of management and was binding on the plaintiff. They also challenged the correctness of the account given in Schedule B of the plaint.

(3.) The learned Subordinate Judge who tried the suit held that the lease in question was not granted in ordinary course of management and had the effect of impairing the plaintiff's mortgage security as his mortgage dues still remained unsatisfied to the extent of about Rs, 60,000 and that therefore the lease was not valid and binding against the plaintiff. He, however, held that the defendants had a right to redeem the plaintiff's mortgage on payment of the proportionate mortgage money, but he found that the account given in Schedule B of the plaint was not correct. He accordingly dismissed the plaintiff's claim for khas possession, but allowed the alternative prayer for a decree for sale of the village in question. According to the decree, the defendants are liable to pay Rs. 1252-12-9 for redemption, whereas the plaintiff claimed Rs. 5333-8-0. Dissatisfied with this decree, the plaintiff has preferred this appeal. There is no cross-objection by the defendants.