RAMASRAY PRASAD CHOUDHARY Vs. CGATKINS

JUDGEMENT

(1.) This is an appeal by the plaintiff against a judgment and decree of the learned Subordinate Judge, dated 30 July 1932, by which he has dismissed the suit of the plaintiff with respect to partition of lands measuring 34 bighas 7 kathas 14 dhurs in khatas 90 and 162 in Tauzis 1097 and 1079 in villages Matihani and Meghaul. The plaintiff claimed certain other reliefs which were decreed in his favour in part, but we are not concerned with those other matters in this appeal. The appeal relates only as to whether the suit has been rightly dismissed with respect to the land just mentioned.

(2.) The facts necessary to give an indication of the controversy between the parties are no longer in dispute and may be briefly stated as follows: On 22nd September 1890 the defendants first party or their ancestors executed a mortgage bond in favour of one Gopilal for a sum of Rupees 4350. This was a simple mortgage and certain shares in these two villages were given as security. About 13 years after that, viz. on 23 March 1903, the mortgagor, who was allowed to remain in possession, executed a lease in favour of Mr. Atkins or his predecessors, who are defendants 31 and 32 in this action, by which the mortgagor gave a lease of certain shares in the villages definitely excluding from the lease the area which is now in dispute on the statement made therein that the factory was already in possession of it in kasht right at a rental of Rs. 177-5-0 per annum. About six months after this lease, the mortgagee instituted a suit to recover his mortgage debt on 15 September 1903 and the game was decreed for a sum of about Rs. 17,000 in June of the following year Execution of this mortgage decree was effected apparently from time to time but ultimately on 30 May 1914 the property was put up to sale and purchased by the sons of the mortgagee for a sum of Rupees 40,966, which, we are informed, was the total due then under the mortgage decree. But the judgment-debtors continued in possession and no delivery of possession was taken by or on behalf of the auction-purchaser. On 22 May, 1926 the heirs of the auction purchaser, sold their rights to the plaintiff by means of three kobalas, and the plaintiff having failed in obtaining; peaceful possession of the property which he had purchased, instituted a suit (No. 37 of 1926) to recover possession of the properties described in Schedules 1 to 3 of the plaint. It is important to notice that in this action defendants 31 to 37 were not party defendants.

(3.) In this suit, we are informed that a decree was obtained in due course in favour of the plaintiff for recovery of possession against the defendants first party and he obtained delivery of possession on 8 October 1927, which has been rightly characterized by the learned advocate for the appellant as a symbolical delivery of possession. Having failed in obtaining possession of the lands which are now in controversy as well as other lands, the plaintiff then raised the present action on 12 November 1929, in which he claimed the reliefs stated above.