ABDUL BARI Vs. AMIRJAN

JUDGEMENT

(1.) The plaintiffs instituted the suit out of which this appeal arises for setting aside a decree passed in a mortgage suit on the ground that it was fraudulently obtained, and for other reliefs.

(2.) In 1886, two persons Uzir Ali and Khadim Ali executed a mortgage in respect of lands of Schedule 1 to the plaint. In 1892, Uzir Ali alone executed a document, in respect of the lands of Schedules 1 and 2 to the plaint, the exact character of which is disputed in the present suit. The interest of the mortgagee under the document of 1886 ultimately passed on to one Asgar Ali who in 1890 instituted a suit, being suit No. 25 of that year, on the basis of the said mortgage, obtained a decree and in execution thereof purchased the lands of Schedule 1 and then sold them to the predecessors of the present defendants.

(3.) The plaintiffs who are the heirs of Uzir Ali at first instituted suit No. 636 of 1920, practically ignoring the mortgage of 1886 and praying to redeem the lands of Schs. 1 and 2, treating the document of that year as a mortgage. The claim was opposed on the ground that the defendants were in possession under purchase from Asgar Ali who had obtained the decree under the mortgage of 1886 as aforesaid. The plaintiffs then withdrew that suit with liberty to bring a fresh one. Then the present suit was filed.