NEPAL RAI Vs. PARAS RAM DUBE

JUDGEMENT

(1.) This is a defendants appeal which arises out of a suit to recover possession of five plots, Nos. 201, 285, 365, 289 and 346/2, in village Ghhapra Mansur in the District of Gorakhpur. The case for the plaintiffs, as set out in the plaint, may be briefly stated as follows: On 17 October 1911, a co-sharer named Kamta, who owned 19 pies in khata khewat No. 2, executed a usufructuary mortgage in respect of the plots in suit and other plots in favour of defendants 1 and 2 and the father of defendant 3. On 25 April 1928, Lalsa, the son of Kamta who by that time had died, sold the five plots in suit along with other plots to plaintiffs. 1 and 2 and the father of the remaining plaintiff s, leaving with the vendees the money required to pay off the mortgage-deed of 17 October, 1911. The plaintiffs duly deposited this money in Court in favour of the defendants in accordance with the provisions of Section 83, T.P. Act; but the defendants refused to deliver possession of the plots in suit. The defendants pleaded inter alia that on 23 December 1921, they had purchased a five pie share in khata khewat No. 2 from Kamta and his son, Lalsa, and that they thus acquired proprietary rights in a portion of the plots in suit which admittedly appertain to khata khewat No. 2. Lalsa was, therefore, not competent to transfer the plots in suit to the plaintiffs on 25 April 1928. Finally it was contended that the plaintiffs had themselves admitted the exclusive rights of the defendants in respect of plots 201, 285 and 365 and the suit is, therefore, barred by estoppel. The remedy of the plaintiffs was to sue for partition in the revenue Court if the defendants had entered into possession of an area in excess of their share in khata khewat No. 2.

(2.) The trial Court found that the defendants, by virtue of the sale deed of 23rd December 1921, had acquired a proprietary interest in the plots in suit and that Lalsa was not competent to transfer the plots in suit to the plaintiffs under the sale deed of 25 April 1928, but that by reason of an agreement, which was entered into by the parties on 15 January 1929, and which is evidenced by a document referred to as a phatbandhi, the plaintiffs were entitled to possession over plots 289 and 346/2 only and that the defendants who had all along been in possession of the plots in suit were entitled to retain possession of the remaining plots. The suit was decreed for possession of these two plots only and for mesne profits at Rs. 15 per annum. Both parties appealed to the lower appellate Court, which dismissed the appeal of the defendants and allowed the appeal of the plaintiffs. The suit was accordingly decreed for possession of all the plots in suit together with mesne profits at Rs. 40 per annum. The learned Judge of the lower appellate Court finds that under their sale-deed of 23 December 1921 the defendants acquired no title in these specific plots. He also finds that the phatbandhi of 15th January 1929 was not acted upon and furthermore that it was inadmissible in evidence by reason of non-registration. Learned Counsel for the defendants- appellants challenges these findings of the lower appellate Court.

(3.) It is an admitted fact that the defendants entered into possession of the plots in suit under the usufructuary mortgage of 17 October 1911. On 25 April 1928 these specific plots were sold to the plaintiffs and money was left with them for redemption of the mortgage of 17 October 1911. That mortgage was duly redeemed and thus by reason of their sale-deed of 25 April 1928 and their redemption of the mortgage of 17 October 1911, the plaintiffs became entitled to the possession which had hitherto been with the defendants. The plaintiffs claim to possession cannot be defeated by the fact that on 23 December 1921 the defendants purchased a fractional five pies share in khata khewat No. 2. Moreover in that sale deed no reference whatsoever was made to the usufructuary mortgage of 17 October 1911, and no part of the mortgage money due thereunder was set off against the sale consideration. It is thus clear, as pointed out by the learned Judge of the lower appellate Court, that the sale of this five pies share in 1921 was not regarded by the vendor or the vendees as having any concern with the usufructuary mortgage of 1911. In my opinion the finding of the lower appellate Court is clearly right on this point.