GOBIND SARAN SINGH Vs. RAM AUTAR SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for declaration of title and recovery of possession against the defendants who resist his claim by setting up their own title in the following circumstances: On 4 October 1896, one Lalit Narain Singh mortgaged the property in dispute to Babu Rameshwar Narain Mahtha for Rs. 8600 (by way of simple mortgage) who assigned his rights on 7 June 1900 to Mt. Narain Dei. On 11 May 1903 the mortgagor executed a second mortgage in favour of Langat Singh of the same properties covered by the earlier mortgage of 1896 (including some other properties). On 19 September 1903 Mt. Narain Dei instituted a mortgage suit against the mortgagor to enforce her mortgage rights but she omitted to implead the second mortgagee. This suit was decreed on 28th January 1904 and the decree was made final on 3 December 1904. It will be noticed that this decree was passed when the Act of 1882 containing Section 89 was in force. This decree was executed and on 22 September, 1910 Narain Dei purchased the property in dispute and obtained delivery of possession against the mortgagor on 25 November 1912. Thereafter on 18 April 1913 she sold the properties in dispute to the plaintiff for a sum of Rs. 7000.

(2.) The plaintiff as the purchaser from Narain Dei applied for mutation of names in the Land Registration Department in place of the heirs of Lalit Narain Singh and succeeded. The name of the plaintiff so mutated stood on the records of the Collector till 29 February 1928. On 27 June 1916 the plaintiff sold a portion of the property which he had purchased for a sum of Rs. 6000 to one Sheo Prasad who Sot his name recorded in place of the plaintiff and who, it appears, has been in possession ever since. On 13 November 1923 the plaintiff filed an application before the Collector for a separate account so that the payment of revenue on his behalf may be safeguarded. This was allowed by the Collector. The title of the plaintiff to the properties in suit is therefore based upon his title derived from Narain Dei in 1913 after the title had vested in her on 25 November 1912 by virtue of the execution sale of her decree of 3 December 1904.

(3.) It is now necessary to detail the transactions which constitute the title of the defendants. On 30 March 1910 the second mortgagee brought an action to enforce his mortgage of 11 May 1903, but omitted to implead either Rameshwar Narain Mahtha or his assignee Narain Dei. He impleaded the mortgagor and he also impleaded the plaintiff but in his capacity as a zarpeshgidar of one of the properties covered by that mortgage, but as the present title of the plaintiff was derived in 1913 it is unnecessary to consider the effect of his being impleaded as a party in this mortgage action.