BAIJNATH PRASAD SINGH Vs. MUNESHWAR SINGH

JUDGEMENT

(1.) This is the plaintiffs appeal in an action for redemption. The plaintiff purchased the property in dispute from the original occupancy tenant. The vendor of the plaintiff had previously mortgaged the property to one of the cosharer landlords who is the respondent before this Court. That mortgage transaction took place more than 25 years ago. Just prior to the action out of which this appeal arises the plaintiff paid the mortgage money into Court, and by his action he claimed possession subject to redemption. The trial Court gave judgment for the plaintiff. On appeal however to the Special Subordinate Judge the, decision was reversed on a point which the learned advocate representing the respondent in this Court fairly admits he cannot support. The decision was based on a complete misapprehension of the law. In substance it is this. The learned Judge states that

(2.) The plaintiff is mot with another difficulty and that is that he is a cosharer landlord of the village, and under Section 20, Chota Nagpur Tenancy Act, he had no right to hold the disputed land as a tenant, but could hold it as a proprietor. It may be noted that the provisions of this Act are now analogous to the provisions of the Bengal Tenancy Act and so on.

(3.) Then proceeding to, refer to the well-known Midnapore Zamindary Company's case he said that the purchase would be held to be a purchase for the benefit of all the cosharer landlords. I need Say no more than to observe, that the learned Judge in the Court below appears to think that in the purchase by the landlord of a holding a merger ensued. That, is a complete: misapprehension of law No merger did in fact take place and the learned advocate for the respondent does not support the judgment on that point but argues another question which at any rate to some extent was dealt, with by the Court below. His contention was in the first place that the mortgage was for more than five years, and that by the provisions of the Chota Nagpur Tenancy Act a mortgage for more than five years is invalid. There was no mortgage for the plaintiff to redeem, and as it was an action for redemption and not in substance an action for possession, the action must in any event fail. It would be some what astounding to me if I had to come to the conclusion that the law of this country is such as to prevent a plaintiff, in the circumstances such as the present, from succeeding where in fact he has claimed possession subject to redemption, merely on the ground that it was in substance an action for redemption, I need only refer in this connexion to the decision in Annada Hait V/s. Khudiram Halt 1914 Cal 894. That is a decision of the Calcutta High Court and Harington, J. in delivering the judgment of the Court--a judgment which was affirmed by the Divisional Court--made this statement in, answer to the argument addressed to him: It appears to me that a suit for possession on redeeming a usufructuary mortgage is in sub-Stance a suit for possession of the, land.