PARMESHWAR DAYAL AMIST Vs. RAMBRICHH SINGH

JUDGEMENT

(1.) The facts necessary for the determination of this appeal may be stated as follows: Deonarayan, Hari Charan and Kashi Singh were three brothers. They had some ancestral share in the proprietary interest in mauza Bishunpur Kashba bearing tauzi No. 338 of the Gaya Collectorate. Plaintiffs 1 and 2 are the sons of Deonarayan. The remaining plaintiffs, i.e. plaintiffs 3 to 7, are the sons and grand, sons of Hari Charan. The pro forma defendants 4 to 7 are the descendants of Kashi by his wife Mungo Kuer. Defendants 8 to 10 are the sons of Mahesh Dutt deceased who had originally 1 anna 4 dams share in the said village Bishunpur. In November 1900, Mahesh Dutt mortgaged 10 dams out of the 1 anna 4 dams share to Deonarayan. Again on 8 July 1901 Mahesh mortgaged 1 anna to Debi Prashad, father of the principal defendants 1 to 3. On 9 May 1903 Mahesh sold 12 dams out of his 1 anna 4 dams to Deonarayan, Hari Charan and Munga Kuer (widow of Kashi) in equal shares for Rs. 600 out of which Rs. 119 was set off against the dues on the mortgage executed in November 1900 in favour of Deonarayan. Mahesh also sold the remaining 12 dams share to his son Rama Nand who in his turn sold that share to his nephew Rang Bahadur.

(2.) In the meantime Mahesh had acquired by purchase an additional 12 dams share out of which he mortgaged 10 dams to Kashi Nath Ram. The latter in due course enforced his mortgage and purchased the 10 dams share. So out of the subsequently acquired 12 dams share 2 dams were left to Mahesh. In 1915 Debi Prashad sued to enforce his mortgage dated 8 July 1901 in respect of 1 anna share impleading, besides the sons of the mortgagor who was then dead, Deonarayan, plaintiffs 3 to 7, defendants 4 to 7 and also Rang Bahadur who were subsequent transferees. Deonarayan and plaintiffs 3 to 7 contested the suit, claiming priority on the basis of their mortgage of November 1900. A preliminary decree was passed with a direction that 14 dams out of the mortgaged 1 anna should be first sold free from encumbrance and in case the sale proceeds thereof were found insufficient then the remaining 6 dams would be sold subject to the prior encumbrance of November 1900. The decree was made final in September 1919 but the final decree directed the sale of the mortgaged 1 anna in it entirety without specifying the prior encumbrance in respect of 6 dams as mentioned in the preliminary decree. Debi Prashad executed the final decree and in execution purchased the mortgaged 1 anna share on 21 December 1920.

(3.) He took delivery of possession on 4 March 1922 and then got his name mutated in the Land Registration Department in respect of the purchased share. In the D Register the shares of the plaintiffs and the pro forma defendants 4 to 7 including their ancestral share were recorded as follows: As a result of the mutation effected in the name of Debi Prashad in respect of his purchased 1 anna share 10 dams were taken out of the entry No. 14 in the names of plaintiffs 3 to 7 and 10 dams out of the entry No. 15 in the names of plaintiffs 1 and 2. The plaintiffs being aggrieved by this mutation brought the suit which has given rise to this appeal. Their main allegations are that the final mortgage decree and the execution sale and the mutation proceedings were all fraudulent and they came to know of the same for the first time on 2 May, 1932. They pray for a declaration of their title to the 1 anna share in respect of which Debi Prashad got his name mutated in the D Register and for confirmation or recovery of possession thereof and in the alternative for redemption of 6 dams share out of the said 1 anna share. The suit was contested by defendants 1 to 3 who are the sons of Debi Prashad, as already stated. Their substantial defence is that the suit is barred under Section 47, Civil P.C. and by res judicata.