NAHAR LAL SHAH Vs. BAIJ NATH SHAH

JUDGEMENT

(1.) This appeal must, be dismissed and for the following reasons. The appeal arises out of an action brought by the plaintiff firm for a declaration that a certain Indenture of Conveyance executed in their favour, on 8 December 1921, by the first five defendants gives them an absolute right of ownership in the entirety of premises No. 187, Durmahatta Street, free from, encumbrances, and for a further declaration that a certain mortgage executed on 25 June 1921, by the said defendants in favour of the firm of Nahar Lal Shah Parnesswar Doyal Shah, who hereinafter called defendant 6, is null and void and for an order for cancellation thereof and for delivery of the said mortgage-deed and of vacant possession of a certain go-down and stable in premises No. 187, Durmahatta Street, at present occupied by defendant 6. There is a further claim for mesne profits at the rate of Rs. 300 per month from the date of conveyance.

(2.) The first five defendants did not appear to contest the suit, but the suit was resisted by defendant 6 alone. Mr. Justice Chotzner, before whom the suit came on for trial, found, on the facts as disclosed in the evidence in this case, that the plaintiff was entitled to succeed and he accordingly made the declarations asked for. The plaintiff's case was that, if the one cotta of land as described in the mortgage-deed of 25 June 1921 was not in existence and could not be identified, the registration at Arrah of the deed which included the Calcutta property referred to above was invalid.

(3.) In the written statement which was filed the contentions put forward were: first, that the mortgage of 25 June 1921 was not null and void; and secondly, that the plaintiff could not question the validity of the registration of the mortgage inasmuch as the properties which were the subject of the mortgage were, as a matter of fact, in existence and they had been sufficiently described for the purpose of registration. The plaintiff firm's contention on the other hand was, as indicated above, that there could not have been any registration whatsoever of the document of 25 June 192L, inasmuch as the property, namely, one cotta of land in village Bkona in the district of Arrah, referred to in the document, did not exist, and, even if it did exist, the description thereof was insufficient within the meaning of Section 21, Registration Act.