MIR WAJID ALI Vs. ALIDAD KHAN

JUDGEMENT

(1.) These two appeals arise out of a suit for redemption of four annas share in certain properties described in Schedules 1 and 2 of the plaint. The entire sixteen annas belonged in equal shares to four persons, Eshan Ali, Junab Ali, Kurban Ali and Imdad Ali, of whom the first three were brothers and the fourth was their nephew. These four persons executed an usufructuary mortgage on 26 August 1875 in respect of Schedule 1 properties in favour of Maddey Khan, father of defendants 1 to 4. Again, on 30 June 1877, the same four persons executed another usufructuary mortgage in respect of schedule 2 properties in favour of Maddey Khan. Later in 1877 Kurban Ali's 1/4 share was released and again in 1907 Imdad Ali's 1/4 share was released on payment of their respective quotas of the mortgage debt. Similarly, Junab Ali's 1/4 share was also released and it was subsequently purchased by the mortgagee.

(2.) Thus the mortgage was left only with respect to the four annas share of Eshan Ali. After Eshan Ali's death, some of his sons dispossessed the mortgagee from some of the mortgaged plots. The mortgagee then brought a suit for recovery of possession against those sons and obtained a decree with costs. The decree for costs was put in execution in Execution Case No. 80 of 1881 in which the mortgagee purchased the entire four annas share of Eshan Ali in April 1881. On 10 April 1920 the plaintiffs of whom No. 1 is a grandson and No. 2 is a great- grandson of Eshan Ali deposited 4 share of the mortgage money under the provisions of Section 83, T.P. Act; but the mortgagee appeared and denied the right of the plaintiffs with the result that the case was struck off. The plaintiffs brought the present suit for redemption on 9 April 1936. As between them No. 1 claims three annas and No. 2 one anna.

(3.) The suit was contested on various grounds but those with which we are concerned in these appeals are that Maddey Khan had purchased the entire share of Eshan Ali in 1881 in execution of his decree for costs and therefore the plaintiffs have no subsisting interest and are not entitled to redeem and that Maddey Khan since his purchase was in possession of the purchased share as a full owner adversely to the heirs of Eshan Ali and therefore acquired a title by adverse possession. There was some dispute with regard to the share of Eshan Ali, but the finding of fact is that he had four annas. It has also been found by the Courts below that Mardan Ali, grandfather of plaintiff 2, was a surviving son of Eshan Ali but he was not a party to the decree in execution of which Maddey Khan purchased the four annas share in 1881 and therefore his interest was not affected by the decree or the execution sale. It has been further found that his interest was one anna which now belongs to plaintiff 2. As regards the remaining three annas share which is claimed by plaintiff 1, the learned Munsif, for reasons which need not be stated, held that the auction-purchase of Maddey Khan was inoperative. In this view he decreed the suit and allowed redemption in respect of the entire four annas. On appeal the learned District Judge, taking a contrary view as to the effect of Maddey Khan's auction-purchase of the three annas share claimed by plaintiff 1, has held that plaintiff 2 alone is entitled to redeem his one anna share. He has made a decree accordingly. Against that decree these two appeals have been preferred, Appeal No. 5 by the plaintiffs and Appeal No. 17 by defendants 1 to 3.