BHAGWANTRAO Vs. SUBHKARAN

JUDGEMENT

(1.) THIS appeal arises out of a suit for possession of a field in mouza Dhondwada in the Betul District. A decree for possession was granted in the trial Court, but on appeal by the second defendant the District Judge set aside the decree and dismissed the suit. The plaintiffs have, therefore, preferred a second appeal. The field in suit No. 131 in mouza Dhondwada, is now recorded as an occupancy field, but it was originally part of the sir land. The village belonged to Baliram and Krishnaji. They mortgaged it to the plaintiffs' predecessor in 1915 and in 1917 they again mortgaged it to Manakchand, father of defendant 1 Kasturchand. In 1923 the plaintiffs sued upon their mortgage, and impleaded Kasturchand as a puisne mortgagee. In the same year, Kasturchand also sued upon his mortgage, but did not make the plaintiffs parties to the suit. On 30th November 1923 the plaintiffs obtained a preliminary decree for foreclosure, and on 17th June 1924 they applied for a final decree. In the meantime, however, Kasturchand had obtained a final decree on 24th June and on 21st July 1924 Baliram and Krishnaji surrendered their occupancy rights in the sir land to Kasturchand in consideration of Rs. 950 in cash and an old debt of Rs. 750. On 25th July Kasturchand applied for time to pay off the plaintiff's decree and on 6th August the Court granted him time up to 26th August. On 9th August Kasturchand granted a lease of the field to defendant 2 Subhkaran. Kasturchand, however, failed to pay the amount of the plaintiffs' decree, and on 30th August the decree in favour of the plaintiffs was made absolute. The plaintiffs filed their suit for possession of the field on 6th May 1925 claiming that the surrender of the fields by Baliram and Krishnaji during the pendency of the proceedings for making their decree absolute was an accretion to the mortgaged property, of which they were the prior mortgagees, and that, therefore, it passed to them along with the village under their foreclosure decree.

(2.) AFTER defendant 2 Subhkaran had been impleaded, the plaintiffs contended that the lease of the field by Kasturchand in favour of Subhkaran was nominal and without consideration and was executed only to save the land from falling into their hands. The trial Court held that the field surrendered was an accretion to the mortgaged property and the plaintiffs were entitled to possession and further that the lease was nominal, bogus and fraudulent. The finding as regards the lease was upheld by the lower appellate Court, but it was held that the fi9ld in suit was not an accretion to the mortgaged property and therefore the plaintiffs were not entitled to it by virtue of their decree, or, if they were entitled they could only obtain possession on payment of the cost of the acquisition'. The plaintiffs' claim was therefore, dismissed.

(3.) FOR the respondents reliance was placed upon the rulings in Robert William Anderson v. Bank of Upper India Ltd. [1915] 37 All. 390 and Sivananjiah v. Sithay Goudar A.I.R. 1921 Mad. 627 but I think those rulings can be distinguished. In Robert William Anderson v. Bank of Upper India, Ltd. [1915] 37 All. 390 the case referred to a purchase of a shop with the stock and goodwill and there is no analogy, strictly speaking, between such a purchase and a surrender or acquisition of immovable property. In the case in Sivananjiah v. Sithay Goudar A.I.R. 1921 Mad. 627, the mortgagor's share was sold in auction and, therefore, his interest had ceased to exist and the acquisition was made after his interest had ceased to exist; In the present case the property had been foreclosed and mortgagor had lost his proprietary right in the sir land, but he still retained under the law the right of an occupancy tenant in the field in suit. That was a valid and subsisting right and he surrendered that right to Kasturchand. That surrender was an acquisition made by Kasturchand, whilst the plaintiffs' mortgage was still in existence and, therefore, the property acquired became an accretion to the mortgaged property. I am of opinion that the suit was rightly decided by the trial Court and that the decree of the lower appellate Court is wrong. The decree of the lower appellate Court, therefore, is set aside, and instead the original decree of the trial Court granting the plaintiff's possession of the field in suit is restored. All costs of the appeal in both Courts and in the original suit will be borne by the defendants-respondents.