MUNGA LAL Vs. SAGARMAL

JUDGEMENT

(1.) The suit out of which this appeal has arisen was instituted by the plaintiff- respondents for recovery of one-half share in about fifty bighas of land comprised in khata No. 419 of village Murar. In the settlement record of 1904 this khata was recorded in the name of two tenants Sri Lal and Devi Prasad. Sri Lal is represented by the defendants third party and Devi Prasad and his son are the defendants second party. The plaintiffs are the purchasers of half this khata in execution of their mortgage-decree, dated 14 March 1925, based upon a mortgage executed by Devi Prasad on 10 February 1920. The sale took place on 13 November 1926, and a writ of delivery of possession was formally served on 9 August 1927. But the plaintiffs were not allowed to take possession of the land by the defendants first party who claimed to have purchased on 27 August 1920, the entire land of the khata in execution of their own mortgage decree based upon a mortgage executed by Sri Lal alone on 28 July 1911. A preliminary decree for sale in favour of the defendants first party was passed on 9 November 1919, and made final on 27 August 1920. The plaintiffs have, therefore, instituted the present suit for recovery of possession on the basis of their title.

(2.) It is clear from what I have stated that the main controversy between the parties was whether the earlier purchase of the entire holding by the defendants first party should prevail against the later purchase of half of the holding by the plaintiffs. The question depended upon the fact whether Sri Lal who mortgaged the entire holding to the defendants first party was entitled to do so, or whether in fact half of it belonged to Devi Prasad who mortgaged it to the plaintiffs. Now in the suit instituted by the defendant first party to enforce their mortgage Devi Prasad was impleaded as defendant and it was alleged by the defendants first party, plaintiffs of that suit, that Devi Prasad had attested the mortgage which Sri Lal executed in their favour. The question whether Devi Prasad had any interest in the mortgaged property or whether the whole of it belonged to Sri Lal was left undecided at the time of the passing of the preliminary decree, but the suit was dismissed against Devi Prasad. It was after the dismissal of this suit against him that Devi Prasad created the mortgage in favour of the plaintiffs. The date of the dismissal of the suit was 9 November 1918, and the date of the mortgage as already stated was 10 February 1920.

(3.) On the main issue of fact both the Courts below have held that Devi Prasad was owner of half of the holding and that Sri Lal was not entitled to mortgage the whole of it to the defendants first party. It, however, transpired in the course of the trial of the suit that the defendants first party after their mortgage and before the institution of their suit to enforce it had to pay up a decree for rent against the holding and by virtue of section Section 171, Ben. Ten. Act (now Bihar Tenancy Act) had acquired another mortgage on the entire holding in respect of the money so paid for the satisfaction of the rent decree and that in fact they had included this amount of Rs. 280-3-0 in their mortgage suit. The Courts below decreed the plaintiffs suit for possession subject to the payment of half of the money paid by defendant 1's party for saving the holding from sale together with interest at 12 per cent. per annum from the date of the payment. Defendant 1's party have preferred this second appeal.