RAMNATH Vs. HAZARILAL

JUDGEMENT

(1.) THIS is an appeal against an order of remand passed by the lower appellate Court. One Damodar was formerly an absolute occupancy tenant of fields old Nos. 150, 151, 152,162, 163/1, 163/2, 164/1, 164/2, 165, 195 and 197, total area 29.83 of mouza Tinsara. Their new numbers are 109, 132, 133, 134,160, 204, 205 and 206, area 29.83, rent Rs. 70. He mortgaged them all to plaintiff under a registered mortgage-deed, dated 10th August 1911, Subsequently he leased field No. 195=109 to one Godhan under a deed of lease, dated 25th January 1913 (Ex. P-14), for the period Samat 1970 to Samat 1984 and mortgaged the rest to him by a deed, dated 17th September 1915 (Ex. P-15). Thereafter he mortgaged on 17th February 1917 to Patiram and Barelal fields Nos. 150, 151, 152,195 and 197 without possession and fields Nos. 162, 163/1, 163/2, 164/1, 164/2 and 165 with possession for Rs. 400. In execution of his own money decree against Damodar, defendant 1 Hazarilal purchased at auction all the aforesaid fields of the aggregate area of 29.83 acres rental Rs. 70 on 27th June 1918, the auction sale being confirmed in his favour on 30th July 1918, and a sale certificate (Ex. 1-D-1) was issued to him on 14th August 1918.

(2.) IN this way after the equity of redemption had become vested in virtue of the subsequent lease, mortgages and auction sale in different persons, the mortgagee plaintiff instituted his suit No. 227 of 1918 for foreclosure of the mortgaged property on 10th September 1918 only against his mortgagor and obtained a preliminary decree for foreclosure on 7th January 1919 (Ex. D-3) and made it absolute on 16th December 1919. In pursuance of this foreclosure decree the plaintiff alleges he got possession of the property foreclosed on 30th July 1921. He admits that the delivery of possession to him was formal, so far as the fields in the possession of Godhan and Patiram were concerned, and asserts that it was actual as regards the rest. He contends that having thus obtained actual physical possession of the fields bearing old Nos. 150-152, and 197, he was illegally dispossessed by Godhan and Hazarilal from old No. 150=new No. 206, old No. 152= new No. 205, area 1.11 and 7.10 acres on 24th June 1926, and from old No. 197= new No. 160 area 2.39 in Jeth Samat 1983. He, therefore, instituted the present suit for ejecting the defendants as trespassers from the aforesaid three fields on 24th February 1927.

(3.) THE first Court recorded oral pleadings and framed a few issues of a preliminary character and fixed the case for the evidence of parties. After some evidence was gone into, the parties came to an understanding that, in case the Court held that defendant 1's right to redeem plaintiff was subsisting, he may be allowed to redeem the mortgage, in this suit, on certain terms. Issue 4 was accordingly amended and parties closed the case on the preliminary issues. As the Judge thought that the decision on the preliminary issues was sufficient for the decision of the case he proceeded to record the judgment in the case and decreed the plaintiff's suit against defendant 1 for possession and discharged the heirs of Godhan.