SHRIVALLABH BADRINATH Vs. LAXMAN VINAYAK BHAVE

JUDGEMENT

(1.) THIS appeal is connected with S.A. No. 470 of 1940. Reported in It arises out of a suit instituted by Shrivallabh against Bhave for recovery of Rs. 698 on the ground that Shrivallabh, the plaintiff, deposited Rs. 513-3-9 on 13th December 1930 during the course of sale proceedings of field survey No. 412, 10 acres 39 gunthas, rent Rs. 51-4-0 of Kasba Walgaon Jahagir, taluq and district Amraoti, in order to save the said field being sold at the instance of the Jahagirdar, who was selling it for recovery of the rent due but not paid, Shrivallabh, the plaintiff in this suit, states that he was a mortgagee of the field in suit, which is one of the four fields mentioned in S.A. No. 470 of 1940, and in order to see that the mortgage security was not impaired he made this payment on 18th December 1930. By making this payment he was subrogated to the rights of the Jahagirdar, who had already obtained a charge decree against the said field. He is therefore claiming in this suit recovery of the amount due which he paid (and which he was not bound to pay) from the defendant, who is at present in possession of the field as owner, by reason of the foreclosure in his favour in civil suit No. 8 of 1928. The amount of Rs. 513-3-9 which was deposited by the plaintiff is stated to be due on account of two decrees which were obtained by the Jahagirdar, viz., decree in civil suit No. 265 of 1929 dated 5th September 1929 and decree in civil suit No. 187 of 1928 dated 10th January 1929. Civil suit No. 187 of 1928 related to arrears for the years 1923-24 to 1927-28, and civil suit No. 265 of 1929 decided on 5th September 1929 related to rent for the year Fasli 1338 (which means 1928-29). Exhibit P-3 is a copy of the judgment in civil suit No. 187 of 1928. It shows that that suit related to arrears regarding field survey No. 412 of Kasba Walgaon jahagir for the years 1923-24 to 1927-28. The rent of this field payable every year is Rs. 51-4-0. Exhibit P-2, which is a copy of the judgment in civil suit No. 265 of 1929 shows that it was a suit for the rent of Fasli 1338 (i.e. 1928-29 A.D.). Shrivallabh was a party defendant in both these cases. Though the facts are not quite clear, Shrivallabh was joined as a mortgagee on the basis of which be instituted a suit, civil suit No. 8 of 1928. The defendant Bhave resisted this suit. He pleaded that Shrivallabh was himself the owner of the field and was under a liability to pay the assessment or rent. He had therefore no right of recovery. In any case, he stated, he was not entitled to subrogation under Section 92, T.P. Act, which did not apply to the facts of the present case.

(2.) THE Courts below have held that the plaintiff was owner by a purchase on 11-10-1926 in the name of Debulal, his own agent. They also held that the suit was not barred by res judicata. It was further held that the rent was a charge on the land, that the plaintiff did not step into the shoes of the jahagirdar, and that he was not entitled to a right of subrogation. The plaintiff 's suit was therefore dismissed. The plaintiff Shrivallabh comes up in second appeal.

(3.) THE only other question that it is necessary to decide in this appeal is whether the plaintiff is entitled to recover, at any rate, the rent which was recovered from him for the years before his purchase, viz., for the years 1923-24 and 1924-25. Shrivallabh, according to our decision, became owner in October 1926, and it was not contended before us that the rent for that year had fallen due before that date. As a result of our finding therefore the only question is whether the rent which the plaintiff paid for the years 1923-24 and 1924-25 can be recovered by him by enforcement of the charge which the jahagirdar was entitled to under Section 72(3), Berar Land Revenue Code. During the years 1923-24 and 1924-25 the defendant Bhave was not the owner in possession of the land. The plaintiff is not therefore entitled to claim a personal decree against Bhave in this suit. The main question therefore is whether the plaintiff should be allowed a charge against the property by reason of his payment to the jahagirdar. In short the question is whether he is subrogated to the rights of the jahagirdar and can enforce the right which the jahagirdar could have enforced by a suit.