PIAREY LAL Vs. RAM CHANDRA

JUDGEMENT

(1.) This is a plaintiff's appeal and arises under the following circumstances: The plaintiff. Pairey Lal, is the son of one Bhoj Raj. The latter had two houses. His brother, Mangal Sen, mortgaged a house that belonged to him to Mewa Ram on the 6 August 1904, The northern boundary of Mangal Sen's house was given in the deed as the houses of Bhoj Raj and Hatta Mal. In execution of a decree obtained by Mewa Ram on foot of this mortgage, Durga Das purchased the house. Bhoj Ram entered into a contract with Durga Das to transfer the house to him Eventually a suit was brought by Bhoj Raj for specific performance of the contract of sale, and he obtained a decree on the 2 May, 1905. In this decree the northern boundary of the house is shown as the house of Hatta Mal and Bhoj Raj.

(2.) Bhoj Raj mortgaged the same house to Mewa Ram on the 16 January 1906 and in this mortgage the northern boundary of the house mortgaged is shown as the houses of Hatta Mal and Bhoj Raj. Mewa Ram obtained a decree on foot of his mortgage, and in both the preliminary and the final decrees the northern boundary of the house was shown as the house of Bhoj Raj and that of Hatta Mal. To that suit the plaintiff was a party, although a minor. In execution of this decree one of the houses of Bhoj Raj was put up for sale and bought by the predecessor-in- interest of the respondent on the 5 May 1909; but both in the sale proclamation as well as in the sale certificate the northern boundary of the house sold was given as the house of Hatta Mal.

(3.) On the 30 July 1909, the predecessor-in-interest of the respondent took possession of the two houses of Bhoj Raj. The plaintiff's case was that, when he was a minor of tender years, his lather left for Calcutta and took him there along with the other members of his family. His father died about eight years before the suit in Calcutta and the plaintiff was still a minor. When he "matured in senses," he came to know that his father's house was at Aligarh; and at Aligarh on enquiry he found that the defendant had taken possession wrongfully of a house which was the joint property of his father and himself. He therefore claimed possession of the property and mesne profits. I may mention that Bhoj Raj, as a matter of fact had two houses which he had got from his father and the house which was mortgaged was a house which had been given to his brother, Mangal Sen, by his father. The correct description of the northern boundary of the house, which was mortgaged, would be the house of Bhoj Raj and the house of Hatta Mal. From the map filed and admitted it would appear that to the north of the house of Bhoj Raj and Hatta Mal there is another house of Hatta Mal, and the claim relates to the ancestral house of the plaintiff, the northern and eastern boundaries of which are the houses of Hatta Mal.