REBATI MOHAN DAS Vs. NADIABASHI DE

JUDGEMENT

(1.) This second appeal is preferred by defendants Nos. 1 and 2 in a suit for recovery of possession of certain land. At the date of the suit the defendant No. 2 was a tenant of defendant No. 1. We are informed that there is reason to believe that defendant No. 2 has since purchased the rights of defendant No. 1. As to the facts found, it appears that on the 31st March 1895, one Jamaraddi mortgaged the property in suit with other properties to the plaintiffs. The property in suit is a raiyati holding.

(2.) On the 6th May 1896 Hara Chandra Das, the father of defendant No. 1, in execution of a money-decree obtained by him against the mortgagor purchased theproperty and subsequently in the same year obtained actual possession from the Court.

(3.) In 1907 the plaintiff brought a suit upon the mortgage of 1895 against the heirs of the mortgagor and others. To that suit he did not make the father of defendant No. 1 a party. Accordingly on the 29th May 1907 Hara Chandra Das applied by a petition to be joined as a party defendant. The plaintiff opposed the application, which was rejected by the Court. The mortgage suit proceeded and in the result the plaintiffs obtained a mortgage decree in the usual form and in execution purchased the property themselves on the 9th September 1908. On the 2nd March 1909 the plaintiffs obtained symbolical possession from Court. Their subsequent efforts to obtain actual possession led to a criminal proceeding under Section 145, Criminal Procedure Code, which was decided on the 24th February 1909 in favour of defendant No. 1. The plaintiffs then instituted the present suit on the 18th June 1912. At this stage of the suit all that is claimed by the defendants-appellants is that the plaintiffs title to eject them from the disputed land is subject to their right to redeem the plaintiffs--a right which the Courts below have by these decrees concurrently refused to recognise. In denying any right to redeem in the defendants-appellants the Courts below have acted on two grounds. The first ground appears to be that they were under the impression that the defendants did not claim the right to redeem in this suit and were unwilling to redeem. The second ground which is the more substantial ground is that the defendants, if they ever had any right to redeem, are precluded from exercising that right by reason of the application which Hara Chandra Das made in the mortgage suit of 1895. I will deal first with the second of these two grounds.