DUKHIRAM MADHU Vs. RAMLAKSHMI FALIA

JUDGEMENT

(1.) THE facts in short are that many years ago defendant 3 and another borrowed Rs. 100, from the plaintiff and executed a mortgage bond in respect of 12 bighas of the southern portion of the defendants holding of 15 bighas of land which they held at a rent of Rs. 10-9-3. It was stated in the mortgage bond that the proportionate rent of the portion mortgaged would be Rs. 8-7-0. Many years afterwards the plaintiff sued on the mortgage bond. During the progress of the suit there was an agreement between the parties to compromise the litigation. THE terms of the agreement were that the defendants would sell 10 bighas of the land to the plaintiff and mortgage 2 bighas in addition to that. But the defendants failed to carry out the agreement and thereafter the plaintiff got a mortgage decree for sale of the security. THE mortgaged land was sold in auction and purchased by the plaintiff. His case is that he could keep possession of only 6 bighas of the land, but the defendants by force dispossessed him from the rest of the land. THE plaintiff's claim is not only for 12 bighas as stated in the mortgage decree but for about 18 bighas on the basis that in a recent Cadastral Survey it was found that the defendants holding consisted not of 15 bighas but of about 25 bighas, and inasmuch as the rent of the mortgaged portion was Rs. 8-7-0, while the rent of the whole portion was Rs. 10-9-3, the plaintiff is entitled to 4/5ths of the 25 bighas.

(2.) THE first Court disallowed the plaintiff's claim for 18 bighas but gave a decree for the 12 bighas as stated in the mortgage bond. In appeal the learned Subordinate Judge has come to the conclusion on the reading of the relevant document that the plaintiff is entitled to 4/5ths of the total lands of the defendants as claimed by the plaintiff and has decreed the plaintiff's claim in full. Upon hearing the learned advocates on both sides, it is clear that the principle on which the learned Subordinate Judge has proceeded is entirely unjust and inequitable. In the bond only 12 bighas of land were mortgaged to the plaintiff. Even during the suit the plaintiff agreed to compromise the litigation on receipt of 12 bighas of land. That compromise failed by the negligence of the defendants. THEreafter the greed of the plaintiff increased and he claimed not only 12 bighas but 18 bighas and the only basis of it is that in the mortgage bond it was stated that the proportionate rent of the mortgaged land was Rs. 8-7-0 while the rent of the whole was Rs. 10-9-3. It is not correct as between a debtor and a creditor to give the creditor a larger portion than what was mortgaged to him just because of the proportion of the rent. THE plaintiff is liable to pay Rs. 8-7-0 per annum from 12 bighas of land. If the defendants hold from the landlords 25 bighas of land instead of 15 bighas, as was originally settled with them, the question may be fought out between the landlord and his tenants, the defendants. That matter has no concern with the plaintiff who lent his money on the security of 12 bighas of land bearing rent of Rs. 8-7-0 and he is not entitled to get more than that on any account. In the result, the appeal is allowed. THE decree of the lower appellate Court is set aside and that of the first Court restored with costs throughout. Leave to appeal under the Letters Patent is refused.