NARAIN PANDEY Vs. SURAJBHAN LAL

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiffs for the redemption of a mortgage. The suit was dismissed by the Court of first instance but decreed on appeal. The case of the plaintiffs was that sometime in the year 1876 certain proprietors of village Bara had orally mortgaged 35.26 acres to the ancestors of the principal defendants for a sum of Rs. 291. The defence was that there was no such mortgage and that the principal defendants were in possession of the property in absolute right. The main questions which were debated in the Courts below were (1) whether in fact there was a mortgage, (2) whether the suit of the plaintiffs was instituted within the period of limitation. On the first point) both the Courts are agreed that the disputed land had in fact been mortgaged to the ancestors of the principal defendants. The Courts below, however, differed as to the date of the mortgage and consequently on the question of limitation. The trial Court held that the mortgage transaction had taken place more than sixty years before the institution of the suit (that is to say, long before 1876) and so the suit was barred by limitation. The lower Appellate Court has accepted the case of the plaintiffs in its entirety.

(2.) The only argument which was addressed to me on the question of limitation was that the lower Appellate Court had not given due effect to an admission made by the plaintiffs before the survey authority and that it had overlooked certain statements made in Exs. D and D-1 which were judgments pronounced in certain criminal proceedings in the year 1880. These documents have been referred to by the learned Subordinate Judge and I do not think that any question can legitimately arise on the basis of these documents. As to the decision of the Revenue Officers (Ex. 10) stress was laid on the fact that the statement in that judgment to the effect that the mortgage deed is said to have been executed over a century ago should have been treated by the lower Appellate Court as an admission by the plaintiffs or their predecessors-in-interest. This contention, however, deed not appear to me to be sound. In the first place there was no record before the learned Subordinate Judge of the actual statement which might have been made by the plaintiffs or their processors-in-interest before the Settlement Officer; and in the second place even in this order (Ex. 10) the Settlement Officer does not clearly say that it was stated before him by the plaintiffs or their predecessors-in-interest that the mortgage deed had been executed over a century ago. Besides, the learned Subordinate Judge has considered these documents and the construction placed by him not being an unreasonable one, no point arises in second appeal. It appears to me, therefore, that the decision of the learned Subordinate Judge so far as it relates to the date of the mortgage cannot be disturbed.

(3.) The next contention which is put forward on behalf of the appellant is that certain persons who ought to have been joined as defendants have not been so joined. It is stated in the plaint that all the persons who according to the plaintiffs were interested In the property as the successors-in-interest of the original mortgagors were impleaded. The defendants in their written statement stated among other things as follows : "The suit is not tenable without impleading all the proprietors of the mousa by the plaintiffs." This statement is obviously vague and it was contended on behalf of the respondents that it was based upon a misapprehension of paras. 1 and 9 of the plaint. In my opinion, the defendants should have specifically stated who were the persons who ought to have been impleaded as defendants but have not been impleaded. Notwithstanding the vagueness in their statement, an issue was raised in the case as to whether the suit was bad for defect of parties. Neither of the Courts below unfortunately investigated the question as to whether there had been any omission on the part of the plaintiffs to implead any persons who were necessary parties. The Court of first instance assumed that some of the proprietors had not been made parties and dealt with the legal aspect of the question as follows : The question of non-joinder is governed by the provisions of Order I, Rule 9, which provides that no suit shall be defeated by reason of non- joinder of parties. Order XXXIV, Rule 1, which deals with mortgage and joinder of parties is subject to Order I, Rule 9. Thus we find that though the suit may be bad for defect of parties but the defect is not fatal to the suit.