JHILLAR RAI Vs. RAJNARAIN RAI

JUDGEMENT

(1.) This second appeal arises out of a suit in which the plaintiffs-respondents originally claimed damages against certain persons for appropriating a crop in certain fields and also an injunction restraining these people from interfering with their possession. At a later stage there, was a further prayer for possession over the property. The plaintiffs-respondents claimed as mortgagees in possession on the basis of a mortgage deed executed in their favour on 23 September 1929, by Madan Gopal and Radha Raman. This deed purported to create a mortgage over 5 plots, viz., 160-1, 160-2, 160-3, 160-4, and 160-5 comprising a total area of a little over 5 acres in khewat Pahalwan Singh. It appears that the mortgagors had a share of 1 anna 6 pies in this khewat and had sir rights in the 5 plots which they purported to transfer by the deed which they executed in favour of the plaintiffs. The whole area of land in the mohal was 65.8 acres, so that the area which corresponded with the share of the mortgagors was about 7 acres. In addition to the plots transferred under the mortgage the mortgagors were also in possession of certain other sir plots, the total area of their sir being 13.77 acres.

(2.) The plaintiffs alleged that they had obtained actual possession over the 5 plots mortgaged to them because their mortgagors had given up their ex-proprietary rights and that they had been in possession and had sown crops and that these crops were appropriated by some of the defendants by force in the absence of the plaintiffs. The persons in pleaded as defendants were originally Mukta Rai, Partaju Rai and Jangi Rai, but as these persons stated that they had nothing to do with the matter, three others, namely Udit Rai, Deanarain Rai and Sahdeo Rai were impleaded later. The trial Court decided that the mortgage was invalid and dismissed the suit. The lower appellate Court came to the conclusion that the plaintiffs were entitled to a decree against Udit Rai, Deonarain Rai and Sahdeo Rai for damages and to a decree for possession against, all the defendants.

(3.) The first argument which has been addressed is in support of the proposition accepted by the trial Court that the mortgage was invalid and created no rights in favour of the plaintiffs. The suggestion is that the-mortgagors were not the sole owners of the plots which they purported to. transfer and that, therefore they could not transfer them. It is no doubt true where there are several cosharers in a mohal and some one or other of those co-sharers have sir rights, that all the co- sharers are the proprietors of the area comprised in the sir and consequently, that the person whose sir it is, is not entitled to transfer the whole of the proprietary title in the land. It does not seem to me however that it necessarily follows from this proposition that the mortgage was an invalid document. It failed no doubt to transfer such part of the title as did not vest in the mortgagors, but I cannot see why it should be invalid in respect of such part of the title as did vest in them. Madan Gopal and Radha Raman had a share of 1 anna 6 pies in the mohal in which the disputed plots were situated. A co-sharer has a. share in every part of the land of which the mohal consists. As these plots were in the mohal it must be held that Madan Gopal and Radha Raman had a 1 anna 6 pies share in each of them and indeed in every part of each of them. There was no reason why Madan Gopal and Radha Raman should not transfer their shares in these specific plots.