DEBI PRASAD AGARWALA Vs. HAJI SYED MEHDI HASAN

JUDGEMENT

(1.) This is an appeal by the plaintiff against the decision of the learned Subordinate Judge of Shahabad dated 4 January 1937 by which he has dismissed the claim against the respondent, defendant 1, in an action arising out of a transaction of a mokarari lease by which the former sajadanashin of Khankah Sassaram granted a permanent lease to the plaintiff of a portion of the wakf property and put him in possession but of which he was dispossessed on 6th February 1928 with the result that the plaintiff claimed damages and return of the nazarana under the following circumstances.: It appears that before the former sajadanashin executed the mukarrari lease on 8 September 1925 in favour of the plaintiff reserving the rent of Rs. 6 per annum on taking a nazarana. of Rupees 2500 the then sajadanashin had already entered into a contract of permanent lease of the same property in favour of one Lachmi Ram.

(2.) After the plaintiff was put. in possession in September 1925 Lachmi Ram instituted a title suit in the Court of the Subordinate Judge of Arrah for enforcing specific performance of his earlier con-tract of lease in respect of the leasehold properties of which the plaintiff had been: put in possession under the document of 1925. The plaintiff and the former sajadanashin were both defendants in the action and they jointly resisted the claim of Lachmi Ram, but the Court, by the judgment and decree dated 15 June 1927, decreed the suit of Lachmi Ram. The appeal by the plaintiff before the District Judge of Arrah was unsuccessful, when he preferred a. second appeal to the High Court. During the pendency of the appeal in the High Court, Lachmi Ram took delivery of possession by executing his decree and thereby dispossessed the plaintiff on 6 February 1928.

(3.) The High Court ultimately dismissed the appeal on 4 July 1930. Simultaneously with the deed of mukarrari of 8 September 1925 in favour of the plaintiff, the former sajadanashin had entered into an indemnity mortgage bond bearing date 18 September 1925 to the effect that if any flaw or defect was found in the mukarrari properties and if the plaintiff was dispossessed he would be competent to recover the nazarana of Rs. 2500 together with costs and damages which the plaintiff may have to pay and incur from the properties hypothecated by the bond which were the exclusive properties of that sajadanashin.