JAGMOHAN DAS Vs. PARSHOTAM DAS

JUDGEMENT

(1.) This is a plaintiff's appeal and is directed against an order returning the plaint to the plaintiff for presentation to the proper Court. The material facts are these. One Mirza Ali Husain Khan was owner of seven villages: 1. Bhourapur, 2. Sukhmapur, 3. Pitambarpur; 4. Banwaripur, 5. Saloula Khurd; 6. Dayanatpur and 7. Badshahpur Gahar, all situated in the district of Cawnpore. His estate was taken over by the Court of Wards in 1895. There were debts to pay and on 14 August 1896 the Court of Wards executed a simple mortgage hypothecating the villages of Dayanatpur and Badshahpur Gahar in favour of the Maharaja of Balrampur for Rs. 27,000. Ali Husain Khan died in 1907, leaving his daughter, Mt. Bakhtawar Begam, as his heir and representative. In 1908 the estate was released in favour of Bakhtawar Begam. One Husaini Begam laid claim to four of the villages which Bakhtawar Begam had inherited1 from her father, namely Banwaripur, Saloula Khurd, Dayanatpur and Badshahpur Gahar. Husaini Begam's claim was decreed by this Court. Bakhtawar Begam appealed to His Majesty in Council and stood in need of funds. So on 27 July 1910 she executed a deed of sale in favour of the appellant's brother, conveying to him an eight annas share in the four villages which had been decreed in favour of Husaini Begam. She also stipulated under this sale deed that she herself would be responsible for the payment of half of the money due to the Maharaja of Balrampur under the mortgage deed dated 14th August 1896 and that the vendee would be responsible for the payment of only the other half. The vendee also joined Bakhtawar Begam as a party appellant in the proceedings. The appeal was eventually allowed by their Lordships of the Privy Council and the claim of Husaini Begam was dismissed. By partition between the plaintiff and his brother the property purchased under the sale deed dated 27th July 1910 fell to the lot of the plaintiff. On 12 March 1915 Bakhtawar Begam executed a subsequent mortgage in favour of defendant 1 Parshotam Das, and of the father of defendant 2, mortgaging the remaining half of the villages. Dayanatpur and Badshahpur Gahar, along with certain other property some of which was situated in the City of Lucknow.

(2.) In 1915 the Maharaja of Balrampur filed a suit for enforcement of the mortgage of 14 August 1896 and impleaded Bakhtawar Begam, the present plaintiff-appellant, and the subsequent mortgagees under the deed dated 12th March 1915, namely defendant 1 and the father of defendant 2 of the present suit as defendants. A final decree for sale was passed in 1918, execution was taken out and the property was ultimately sold. Neither Bakhtawar Begam nor the subsequent mortgagees under the mortgage deed dated 12 March 1915 paid anything in satisfaction of this decree of the Maharaja of Balrampur. The plaintiff on 14 January 1921 and on 22 July, 1924 had to pay certain sums of money in order to save the property. By these payments he saved not only the property which belonged to him under the sale deed of 27 July 1910 but also the remaining property. In 1927 a suit was filed by the subsequent mortgagees under the mortgage deed dated 12 March 1915, that is, the present defendant 1 and the father of the present defendant 2 in the Court of the Subordinate Judge of Lucknow, for foreclosure. The plaintiff-appellant, Jagmohan Das, was also impleaded as a defendant in that suit. It is stated in para. 10 of the present plaint that the plaintiff was directed in that case to bring a separate claim in respect of the amount which he had paid in satisfaction of the decree of the Maharaja of Balrampur. So the suit out of which this appeal has arisen was filed by him on 1st August 1931 in the Court of the Subordinate Judge of Cawnpore for the recovery of half of the amount paid by him, together with interest, his case being that he was liable to pay only half of what he had paid and that defendants 1 and 2 were responsible for the payment of the other half. It was prayed that in default of payment of the sum claimed by the defendants an eight annas share in villages Dayanatpur and Badshahwar Gahar, other than the share belonging to the plaintiff, may be sold by auction. The case of the plaintiff is that by paying off the prior mortgagee the Maharaja of Balrampur, he has been subrogated to the rights of the prior mortgagee and is entitled to realize the sum claimed by sale of the properties mentioned above. As has already been mentioned, these villages Dayanatpur and Badshahpur Gahar are situated in the district of Cawnpore. The suit was first dismissed by the Court below on 3 September 1932 on the ground that it was barred by limitation. The plaintiff filed First Appeal No. 412 of 1932 in this Court. That appeal was allowed. It was held by this Court that the suit was not barred by limitation and the case was remanded to the Court below for trial on the merits. The judgment of this Court is dated 31 May 1937. When the case was taken up by the Court below on remand, a plea was raised by some of the defendants that the Court at Cawnpore had no jurisdiction to hear the suit as some of the defendants were agriculturists within the meaning of the U.P. Agriculturists Relief Act, and Section 7 of that Act was relied upon. It was pointed out that all the defendants were residents of Lucknow and it was urged that the suit should have been filed in the Court at Lucknow.

(3.) The finding of the learned Civil Judge is that one of the defendants, namely Nawab Asaf Mirza, defendant 3, is an agriculturist as he is an exproprietary tenant in the villages Sukhmapur and Badshahpur Gahar and pays Rs. 3-12-0 on account of the tenancy in Sukhmapur and Rs. 3-8-6 on account of the tenancy in village Badshapur Gahar as rent. Nawab Asaf Mirza is the son and one of the heirs of Bakhtawar Begam who died on 30 September 1926. The Court below has accepted this argument, and has returned the plaint to the plaintiff for presentation to the proper Court, as has been mentioned above.