MT PARBATI KUER Vs. DURGA PRASAD MISSIR

JUDGEMENT

(1.) This appeal from a decision of the Additional District Judge of Motihari, reversing a decision of the Additional Subordinate Judge of the same place, by the plaintiffs, raises the question, whether in the circumstances, to be stated presently, the suit is barred under Order 2, Rule 2, Civil P.C.

(2.) The suit is for recovery of a sum of Rs. 2,500 being the balance due under a zarpeshgi deed, dated 18 October 1922 and Rs. 350 as interest thereon, or, in the alternative, for possession of the mortgaged property and for mesne profits.

(3.) The facts are not in dispute. Some of the defendants first party and ancestors of others executed the zarpeshgi deed on 18 October 1922 in suit, in favour of the plaintiffs for Rs. 9,000 hypothecating three items of properties, namely, (1) four annas interest in village Kanhaulia, (2) four annas interest in village Barbiro, and (3) 7 bighas, 9 kathas and 5 dhurs of brit lands in village Sarahawa. The zarpeshgi was for a term of three years, that is, 1330 to 1332. It appears that the first two items of property, that is to say, four annas interest in villages Kanhaulia and Barbiro along with other properties were subject to a prior simple mortgage in favour of another person, the existence of which was not disclosed to the plaintiffs. As a result of a suit instituted for the enforcement of the mortgage on the first two items of properties, there was a decree, in execution of which, these two properties were sold and purchased by the other person. The auction purchaser obtained delivery of possession, and these plaintiffs were dispossessed from villages Kanhaulia and Barbiro. They were left in possession of the brit lands in village Sarahawa. The plaintiffs thereupon instituted a money suit being suit No. 554 of 1938 against the defendants first party for recovery of Rs. 5500 being the proportionate amount of zarpeshgi money and Rs. 650 representing the income for two years of the property from which they had been dispossessed. This suit was decreed. In the judgment decreeing the suit it was stated that the plaintiffs not having claimed the entire mortgage money, which they were entitled to claim owing to dispossession from a part of the mortgage security under Section 68, T.P. Act, they would not be entitled to recover the balance of the zarpeshgi money by reason of Order 2, Rule 2, Civil P.C. It was stated in the judgment that the plaintiffs were no longer entitled to retain possession of a part of the mortgage security, namely, the brit lands in village Sarahawa. It appears that the defendants 1 party, therefore, began to interfere with the possession of the plaintiffs over the land in village Sarahawa, and succeeded in dispossessing the plaintiffs from these lands in Baisakh 1350 Fasli. The plaintiffs, therefore, instituted the present suit, as already stated, for recovery of the balance of the zarpeshgi money with interest,, and, in the alternative, for possession of the mortgaged property and mesne profits.