MAKHAN LAL Vs. SOHAN LAL

JUDGEMENT

(1.) This is a plaintiff's appeal. The plaintiff Makhan Lal was in possession of certain land under a usufructuary mortgage, having acquired by purchase the rights of the original usufructuary mortgagees. The defendants obtained a mortgage on 14 July 1925, of the right, title, and interest of one Tika. Tika on 18 December 1909, mortgaged the property to Makhan Lal. Suits were brought on the two mortgages. On 5 August 1919, the prior mortgagee instituted a suit for sale (No. 480 of 1919) without impleading the puisne mortgagee. A preliminary decree was passed which was followed by a decree absolute and the property was sold by auction and purchased by the prior mortgagees. The plaintiff in the year 1921 instituted a suit (No. 1250 of 1921) for sale on his mortgage of 18th December 1909, and obtained a decree. He did not implead the prior mortgagee. When the plaintiff went to the revenue Court to get his name recorded as owner of the property his application was dismissed on the ground that an order of mutation has already been passed in favour of the defendants prior mortgagees.

(2.) The present suit is for the following relief: On the establishment of the plaintiff's right and on declaration that no right has accrued to the defendants as against the plaintiff in respect of the right as a mortgagor of 9.20 acres out of 26.18 acres of land entered in the khewat as holding No, 10 and of 3,10 acres out of 10,74 acres entered in the khewat as holding No. 11 situate in mauza Bhura Sani mahal Ghair Khwahindgan former pargana Mahaban, and recent pargana Mat, district Muttra, the plaintiff may be awarded possession over the said property.

(3.) It is not denied that the usufructuary mortgage still subsists and that the plaintiff is in possession as usufructuary mortgagee of the property. Various defences were raised which have been repelled by the Court of first instance, but the plaintiff's claim was decreed subject to his paying Rs. 1850-7-4, the amount of the principal and interest under the mortgage of 14 July 1925. The plaintiff went up in appeal and the appeal was dismissed by the learned Additional Subordinate Judge. There was a cross-appeal by the defendants but that appeal was also dismissed.