JAI NANDAN TEWARI Vs. UMRAO KOERI

JUDGEMENT

(1.) These two appeals arise out of two redemption suits between the same parties. The suits were dismissed by the trial Court on the ground that the plaintiffs had not proved the two mortgages set up. The lower appellate Court decreed the suit on the ground that although the two mortgages set up were not proved, the defendant admitted that the whole property was mortgaged under 12, and not two mortgage-deeds, of approximately the same date. The mortgagee now appeals substantially on the ground that the plaintiffs were not entitled to succeed on different mortgages to those set up by them.

(2.) There was also a question in the lower Courts of the inability of the plaintiffs to prove that they were the successors-in-interest of the original mortgagors. The lower appellate Court found that one of them was a successor-in-interest of one of the mortgagors, and this finding of fact cannot be impugned in second appeal as admitted by the appellant's counsel.

(3.) The only question that arises is whether, when in the case of usufructuary mortgage a plaintiff sues on the allegation that the property was mortgaged under two mortgages of which he gives the terms from hearsay and the defendant- mortgagee admits that he holds the property as mortgagee but under 12 mortgages, the Court is entitled to allow the plaintiff to succeed upon the admission of the defendant. I have been shown certain decisions e.g., Sahdeo Ojha V/s. Lachmina Kuar [1916] 14 A.L.J. 615. to the effect that where a plaintiff sues on a certain mortgage in respect of the laud, the admission by the defendant of the different mortgage will not entitle the plaintiff to succeed. But in these cases what the plaintiffs attempted to sue on was an original mortgage. What the defendant admitted were subsequent mortgages. These cases have no bearing on a case like this where the admission of the defendant is as to the original mortgage. I hold that a Court is entitled to allow the plaintiff to sue on mortgages admitted by the defendant even though his plaint set forth mortgages different in number and in other respects. Another question that was pleaded half-hearted by the appellant's counsel was that the status of the mortgagees had changed from that of mortgagees to that of absolute owners by reason of a compromise between the zamindar as paramount owner and the mortgagees. What is mortgaged in the suits are plots forming tenancy holding. The zamindar sued the mortgagees to recover possession on the ground that their mortgagors had left the village. The mortgagees compromised, and it was agreed that the zamindar should accept the mortgagees as tenants-in-chief. It is well-established that a mortgagee cannot deny the title of his mortgagor and set up adverse possession unless he actually leaves the holding and re-enters under a different status.