MOHENDRA LAL BISWAS Vs. JAGAT CHANDRA DEY

JUDGEMENT

(1.) THIS is an appeal preferred by the plaintiffs against the decision of the learned Subordinate Judge of Chittagong, dated the 6th March 1918, modifying the decision of the Munsif of Patiya. The plaintiffs brought the suit out of which the present appeal arises to recover possession of certain plots of land and the allegations made in the plaint are these: One Ram Gopal was formerly entitled to the lands in suit. He mortgaged them in 1895 to one Ramgati. Ramgati subsequently transferred his mortgage to the plaintiffs father. The plaintiffs father then instituted a suit on his mortgage, obtained a decree and had the property brought to sale in execution thereof, and himself became the purchaser at the auction sale held, on the 7th January 1913. The present suit was contested by the defendants Nos. 6 and 15. The defendant No. 6 alleged that Ramgopal had no title to the land in Schedule 3 of the plaint in the present suit and that the defendants Nos. 6 to 13 were in possession of the land of Schedule 5 as prior mortgagees. The defendant No. 15 set up the case that he was the landlord of the property in Schedule 3, and that neither the plaintiffs nor the mortgagor had any right to any such land. The Munsif held that the plaintiffs were entitled to recover the land of Schedule 3 but he dismissed the suit as regards the Schedule 5 land. Thereupon, both parties appealed to the learned Subordinate Judge and the learned Subordinate Judge dismissed the suit as regards both the Schedules 3 and 5. Against that decision, the plaintiffs have appealed to this Court and what has been urged in the present appeal is this; that the present suit ought not to have been dismissed as regards these lands but that the Court ought to have converted it into a suit to enforce a mortgage and that the defendants might have been called upon in the present suit to redeem. The mortgage suit in which the plaintiffs father had the property brought to sale in execution was instituted under the provisions of the Transfer of Property Act and what has been found by the learned Judge in this case is that, at the time of the institution of the former mortgage suit, the predecessor of the defendant No. 6 was in possession, and, therefore, the present plaintiffs or, rather, their father by the use of a reasonable diligence could have gone to and asked the defendant No. 6 what was the nature of the right he claimed and having ascertained that, could have decided as to whether he should be joined as a party. It is not suggested that they did so and the finding of the learned Judge of the lower Appellate Court is not in their favour. What seems to me to be quite clear is this, that if it became a material question as to whether or not the plaintiffs knew at the date of the mortgage suit of this interest that is now set up by the contesting defendants, that would involve the settlement of an issue and also the determination of certain facts. It is much too late now in the Court of second appeal to ask to alter the character of the suit when the plaintiffs have been at any rate partially unsuccessful in the first Court and wholly unsuccessful in the lower Appellate Court so far as these two particular plots are concerned. THIS application, if it is assented; to, would require a remand to determine new facts and the plaintiffs, if they seriously; relied upon this point, ought to have made the application much earlier and not in second appeal. In my opinion, the plaintiffs have made out no grounds for disturbing the judgment of the learned Judge of the lower Appellate Court. The present appeal, there-fore, fails and must be dismissed with costs.

(2.) IN dismissing the appeal, I would only wish to observe this. The original number of the suit in the primary Court was 204 of 1915 and it is close upon five years after the institution of the suit that the Court is asked to alter the nature of the suit which would involve a remand to have farther issues of fact determined in a case that is pending since, 1915 and of which the value, as given in the memo, of appeal, is only Rs. 10. The learned Vakil for the appellants has advanced no arguments which would lead me to think that the interest of justice requires that this petty suit instituted so early as in 1915 should be brought to life again and sent back to the primary Court for the determination of further, issues of fact.