SURAJ CHANDRA MONDAL Vs. BEHARILAL MONDAL

JUDGEMENT

(1.) This is an appeal on behalf of the defendant and the suit was one commenced by the plaintiff for recovery of khas possession of the land in suit on establishment of his title by purchase at a sale in execution of his mortgage decree. The facts lie within a short compass and are, for the most part, undisputed. The land in suit which measures one bigha odd, is a part of a bigger parcel which admittedly belonged to one Hyder Mollah in tenancy right. Hyder Mollah mortgaged the entire plot to the plaintiff in 1915. The defendant claims to have a tenancy right in the land in suit under the predecessor of Hyder Molla and then under Hyder Molla himself long before the date of the mortgage. In July 1917 the defendant purchased from Hyder Molla the equity of redemption in respect of the disputed plot which he already held as a tenant. In 1924 the plaintiff's mortgagee instituted a suit to enforce the mortgage bond, and having recovered a decree, put that decree into execution and purchased the entire property in the year 1933. The present defendant was made a party to the mortgage suit but he did not set up any tenancy right which he now claims in this suit. The plaintiff after taking delivery of possession through the Court on 11 June 1933 attempted to take actual possession and was resisted by the defendant which led to the institution of the present suit.

(2.) The defence in substance was that the, defendant had a tenancy right in the land in suit which was created long before the mortgage and was consequently unaffected by the mortgage decree and the sale. The trial Court gave effect to this contention and though the plaintiff was given a declaration of his title and was held entitled to recover rents from the defendant, his claim for khas possession and mesne profits was dismissed. An appeal was taken against this decision by the plaintiff to the lower Appellate Court and the Additional District Judge who heard the appeal reversed the decision of the trial Judge and decreed the plaintiff's suit in its entirety. It was held by the Appellate Court that as the defendant did not set up the tenancy right in the mortgage suit to which he was made a party, his defence was barred by the doctrine of constructive res judicata. It is against this decision that the present second appeal has been preferred. It seems to me that the decision of the learned Additional District Judge on this point is not correct and the judgment in the mortgage suit could not bar the defence of the present defendant under the rule of constructive res judieata.

(3.) As a general rule the ordinary scope of a mortgage suit is to out off the equity of redemption and bar the rights of the mortgagor and those who derive their title from him. A stranger who sets up a title in. dependent of the mortgage and paramount or adverse to it is not a proper party to the mortgage suit: Jajneswar Dutt V/s. Bhuban Mohan Mitra (1906) 33 Cal. 425. Cases however arise where a person who is impleaded as a defendant in a mortgage suit and is a necessary party to such a suit on the ground of his possessing an interest in the equity of redemption claims to have an independent or paramount title to the subject-matter of the suit. The question is, whether in such cases the defendant is bound to set up his paramount title as a defence in the mortgage suit itself. Almost all the reported authorities so far as this Court is concerned have given a negative answer to this question: Girija Kanta v. Mohim Chandra (1916) 3 A.I.R. Cal. 170, Asmatulla Pramanik V/s. Gamir Pramanik , Sonabunnessa V/s. Abdul Hamid and Sm. Champabati Dassi V/s. Mahomed Yakub Khan (1936) 39 C.W.N. 1100. Some of these authorities have gone to the length of saying that not only a defendant is not bound to raise such question but he is not competent to do so and the Court should not allow him to raise such a question. In the case in Sonabunnessa V/s. Abdul Hamid Suhrawardy J. observed as follows: If a defendant In a mortgage suit has a title independent of and paramount or adverse to it, he is not bound to set it up in the mortgage suit and the Court trying the mortgage suit is not justified in raising an issue of title as between him and the mortgagee....