SAMI NATH SINGH Vs. THAKUR PRASAD RAI

JUDGEMENT

(1.) This is a defendants appeal and arises out of a suit for possession of a 10- gandas zemindari share in village Chhatunan.

(2.) There is no controversy about the facts. Parkash Rai, the father of Defendant No. 1, mortgaged a 12-gandas share to the plaintiff who, on the basis of that mortgage, obtained a preliminary decree for sale on the 9 of December 1910. To that decree only Defendant No. 1 was a party. After the passing of the preliminary decree, viz., on the 20 of July 1911, Defendant No. 1 sold a 10-gandas share, out of the 12-gandas share mortgaged to Sukh Deo Pal, Defendant No. 2. Thereafter, on the 10 of February 1912 the plaintiff-respondent obtained a final decree on the basis of the preliminary decree of the year 1910, as against Defendant No. 1 and he did not implead in those proceedings Sukh Deo Pal. On the 28 of April 1913, after the final decree had been obtained by the plaintiff, Sukh Deo Pal, transferred the 10 gandas share purchased by him to Defendants Nos. 3 to 5. The final decree for sale obtained by the plaintiff was put into execution and the entire mortgaged property was put to sale and purchased by the plaintiff on the 29 of August 1919 and formal delivery of possession was made over to the plaintiff on the 1 of November 1919. Having got formal delivery of possession, the plaintiff applied to the revenue Court for mutation of names as against the share purchased by him, but his application, quo the 10 gandas share in the hands of Defendants Nos. 3 to 5, was rejected, on the objection of the said defendants; hence the plaintiff filed the suit giving rise to this appeal for possession of that share.

(3.) The defence to the suit was that Sukh Deo Pal, the vendee under the sale deed of the 20 of July 1911 was a necessary party to the mortgage suit, and the plaintiff not having impleaded him, the final decree and the purchase made by the plaintiff did not entitle the plaintiff to a decree for possession as against Defendants Nos. 3 to 5 who were the successors-in-title of Sukh Deo Pal, Defendant No. 2. It was further urged in the lower appellate Court that the suit was time barred.