JAGAT MOHAN NATH SAHI DEO Vs. SHEONARAIN MARWARI

JUDGEMENT

(1.) This is an appeal by the plaintiffs of whom No. 1 is the husband of No. 2. The suit is for recovery of Rs. 5100 as damages primarily for breach of contract. The contract is embodied in a usufructuary mortgage bond dated 20 March 1929 executed by the plaintiffs in favour of defendants 4 and 5, who are father and son. The mortgage is in respect of eight out of nine villages comprising a tenure known as Hurhuri lot which is held by plaintiff 1 as a khorposbdar under the Maharaja of Chota-Nagpur. Plaintiff 1 in his turn created a subordinate tenure in favour of his wife, plaintiff 2, by way of khorposh in respect of the tight villages under mortgage. For his tenure, plaintiff 1 has got to pay Rs. 50 as rent and Rs. 357-1-4 as cess per year to the superior landlord, the Maharaja, and plaintiff 2 for her sub- tenure is supposed to pay a rent of Rs. 5 a year to plaintiff 1.

(2.) According to the plaintiffs the real mortgagees are defendants 1 to 3 who are father and sons forming a joint Mitakshara family, defendants 4 and 5 being their benamidars. There was a decree obtained by the Maharaja against plain, tiff 1 for arrears of rent and cess of the Hurhuri lot for the Sambat years 1984, 1985 and 1986, the amount of the decree being Rs. 1800 including oosts and interest. The plaintiffs case is that defendants 1 to 3 being the mortgagees in possession were under the obligation to pay the rent and therefore to pay off the decree but they intentionally and fraudulently did not do so though, when asked by the plaintiffs, they promised they would. In execution of the decree, the tenure was put to sale and was purchased by defendants 1 to 3 and another person who has been made defendant 7 in the suit. To set aside that sale, the plaintiffs had to deposit Rs. 1800 as the decretal amount together with compensation Rs. 2300. It is further alleged that the plaintiffs had to raise the money by selling some of their properties at a loss which has been estimated at Rs 1000. The plaintiffs claim consisting of the above three items comes to Rs. 5100. "Defendant 6" is not a person but mere name in which defendants 4 and 5 are said to have carried on their business. Defendants 7 and 8 are relations and of these No. 8 is an under- tenure-holder of one of the villages in the tenure; they have been impleaded as being co-conspirators in the league formed by the other defendants to deprive the plaintiffs of their property. The claim against them has however been dropped in this appeal and no further reference to them is necessary.

(3.) The suit was contested by all the defendants practically on the same line. Their defence mainly is that they were not liable to pay the rent, that defendants 4 and 5 are the real mortgagees and defendants 1 to 3 have no connexion with the mortgage and that what was mortgaged was really the interest of plaintiff 2 alone for which the rent payable was Rs. 5 only. The learned Subordinate Judge has given effect to the defence and dismissed the suit.