ASAD ALI Vs. BUJRUS MEHER BIBI

JUDGEMENT

(1.) This was a suit for redemption which was decreed by the first Court. The lower Appellate Court has, I think, intended to affirm the findings of the first Court, but has held that the suit was barred by the provisions of Section 66 of the Code of Civil Procedure, and has, therefore, dismissed the suit. Now, as regards the applicability of Section 66, it is to be noted that the sale and purchase to which the defendant sought to make it applicable took place in. 1895, when the old Code was in force. There is no doubt, upon the findings of fact arrived at by both the Courts, that, at that time and afterwards and until the passing of the present Code, the plaintiff had a vested right of redemption. Now, there is also no question as to that if the present Code governs the case then Section 66 is applicable. However, as the law then stood the section was only applicable to the certified purchaser; as it is now amended it applies also to persons standing in the shoes of the purchaser. Formerly, according to the decisions of this Court and of the Madras High Court, it was held that Section 317 applied only to suits against the certified purchaser and not to suits against persons who derived title from him, such as his assignee or heir. According to the law in this Court under the preceding Code, the appellant is entitled to succeed, but if the ease comes under the present Code then he fails. As this is a suit for redemption, the plaintiff had before the passing of the present Code a vested right to redeem. We ought not to assume, in the absence of any express words to that effect, that that right was taken away from him by the provisions of Section 66 of the Code of Civil Procedure. In my opinion, therefore, Section 66 does not apply to this. suit. Then, however, it has been said that the findings of fact are not sufficient, and it has been argued that, if, as has been found, Guran All was a benamidar for the mortgagor, the latter allowed Guran Ali for a period of 16 years to hold possession of this property or allowed it to be believed that Guran Ali was the real purchaser under the sale of 1895, and that being so, and Lal Mea being, as it is contended, a bona fide purchaser for value, his rights exist. The first Court has come to distinct findings upon this argument and has held that Lal Mea was a creature of the mortgagee and that the conveyance of 1911 was brought about by the contrivance of this man to prevent Guran Ali from setting up a title to the land in suit which has all along been in his possession as mortgagee. And though there is not so explicit a finding by the District Judge in his judgment, there is a finding which seems equally sufficient, namely this, that the property has never been in possession of Guran Ali or Lal Mea and it remained throughout in possession of the mortgagee. If the property had all along been in possession of the mortgagee it is not possible to hold, under the circumstances, that Lal Mea could have supposed that Guran Ali had any title to it, seeing that his certificate of purchase was in 1895, 11 years after the sale to Lal Mea, and thereafter the property was held by the mortgagee.

(2.) Under these circumstances, I would decree this appeal, reverse the judgment and decree of the lower Appellate Court and restore those of tlio Court of first instance, with costs of this Court and of the lower Appellate Court. Richardson, J.

(3.) I agree.