SITI FAKIR Vs. CHAND BEWA

JUDGEMENT

(1.) This rule is directed against the decree of the Munsif, First Court, Bogra, by which the learned Munsif, acting as a Judge of a Court of Small Causes has dismissed the petitioner's suit. The suit was for recovery of a sum of Rs. 133 odd from the defendants upon certain allegations, which as far as can be made out from the arguments, are not at present disputed. The facts, shortly stated, are these.

(2.) One Samat sold seven wans of land to one Khoshi Bibi in 1315. In 325 Koshi Bibi gave in unsfructuary mortgage three-and-half wans out of the said seven wans of land to one Jamatulla and others Among these three-and-half wans of land was a plot, which, according to the petitioner, had been purchased by him in the year 1322 from one Chand Bibi. The petitioner's case was that Samat bad made an oral gift of 16 wans of land to Chand Bibi and three others and that, after the death of Samat which took place in 1318 B.S., there was a partition of the said 16 wans of land amongst the said donees, and that this particular plot fell to the share of Chand Bibi. After the mortgage aforesaid, the mortgagees, Jamatulla and others, instituted a suit against the petitioner and others, alleging that they had obtained possession under the usufructuary mortgage in respect of only one-and-half wans of land and that they could not get possession of the remaining two wans and for that reason they instituted the suit for a declaration of their usufructuary mortgage right to the said two wans of land and praying for khas possession thereof and in the alternative for a decree for sale of the mortgaged properties. In that suit the petitioner, as defendant, set up a title paramount and averred that his purchase was before the mortgage and it was not affected by the same. That litigation ended in a decree passed by the Subordinate Judge on appeal, who upheld the decree for sale made by the trial Court, but held that the petitioner would not be bound by the sale of the said two wans of land which in the said decree was described as plot 3 of the plaint of that suit.

(3.) The mortgage decree that was obtained by the said mortgagees was put into execution and in the application for execution that was filed the petitioner's name appeared as the first judgment-debtor and plot 3 was also included in the schedule of properties, the said plot being mentioned as one of the mortgaged properties and the decree was sought to be executed in respect of that property as well. An order was made for the sale of the mortgaged properties as applied for on behalf of the mortgagees, and this particular plot was advertised for sale. Upon that the petitioner paid up the entire decrial amount by putting in the's am in Court under an order passed by the executing Court which stated that the amount deposited as aforesaid should be received and that the execution case should be dismissed on full satisfaction and the decree-holder permitted to withdraw the money. Thereafter the petitioner instituted the present suit for recovery of the said sum of Rs. 133 odd from the defendants. The learned Munsif has dismissed the suit holding that the plaintiff had no right to be reimbursed either under the provisions of Section 69 or of Section 70; Contract Act. The learned Munsif has observed in his judgment that as the plaintiff's purchase had been made long; before the date of the mortgage, and am the mortgage suit was dismissed so far as it was against the petitioner, and it being; ordered in the judgment of the appellate Court in that suit that his interests in the land were not to be affected by the sale the plaintiff had no right to make, the deposit under Section 69, Contract Act. He, moreover, held that the payment, which the plaintiff made cannot be said to have been made "lawfully" within the meaning of the word as used in Section 70, Contract Act. He held that the deposit made as aforesaid by the plaintiff was a mere voluntary payment and, there fore, be was not entitled to be reimbursed. In this view of the matter the learned Munsif, as I have already said, dismissed the suit.