NET LAL SAH Vs. UCHESHWAR JHA

JUDGEMENT

(1.) This appeal by the defendant arises oat of a suit instituted by the plaintiff to recover the amount which he deposited in a proceeding under Section 171-A, Bihar Tenancy Act, in the circumstances about to be narrated. The appeal has been argued with great ability by Mr. Sarkar, but, having considered the matter in all the aspects, I do not find that the appellant is entitled to any substantial relief.

(2.) The undisputed facts are that one Harihar Mandal executed two usufructuary mortgages on 27 February 1923 in favour of certain persons. One was for Rs. 5,000 and the land given in security was 37.55 acres of a holding in khata No. 88 (ka) (which has an area of 46.83 acres with an annual rental of RS. 228-4-3 including cess, and this rental included the rental for two other khatas also), and the mortgagees had to pay Rs. 185-6-0 as the rent due to the landlord out of the annual rental of Rs. 228-4-3. By the second mortgage for Rs. 1,000, the remaining 8.78 acres of land was given in security, and the mortgagees had to pay the balance of Rs. 42-14-8 as rent due to the landlord. The mortgagees remained in possession for about thirteen years, when, on 2l April, 1936, Harihar executed another usufructuary mortgage in respect of a part of the holding in khata No. 88 (ka), that is to say, 44.29 acres, in favour of the plaintiff for a sum of Rs. 7,000, the plaintiff agreeing to pay under the contract Rs. 211-11-0 as rent to the landlord. Out of Rs. 7,000, Rs. 1,000 was paid to Harihar in cash and the balance was retained by the plaintiff to redeem the two earlier usufructuary mortgages of 1923. On 5 May 1936, the plaintiff redeemed one of the mortgages, namely, that for Rs. 5,000, and came in possession of 37.65 acres of land. Before the plaintiff redeemed the second mortgage for Rs. 1,000, the landlord filed a rent suit in September 1987, to recover arrears of rent for 1341 to 1344 Fasli, which had not been paid to him either by the-mortgagor or by the mortgagees, and the rent suit covered the period when the plaintiff was in possession of the 37.55 acres of land.

(3.) On 11 January 1910, the plaintiff redeemed the second remaining mortgage for Rs. 1,000, but, instead of paying the zarpeshgi amount he adjusted the amount due to the mortgagees against the amount that the mortgagees had- agreed to pay as rent to the landlord. We are informed that, in the result of the accounting, Rs. 33 was received by the plaintiff, By this transaction, the plaintiff undertook to pay the arrears of rent due to the landlord. On 8 April 1940, the defendant-appellant purchased the entire holding from Harihar. In the same year, the landlord started execution of his rent decree, and the holding was advertised for sale on 6 November. At this stage, the appellant made an application to deposit the decretal amount and costs advertised in the sale proclamation, and was allowed to make a deposit on 22 November, 1940 and on his application, the delivery of possession of the entire holding was actually ordered to be given to him in November of that year. We are informed that the defendant actually took delivery of possession. Thereupon, the plaintiff on 2 December, filed art- application objecting to the delivery of possession, and on 17 December, he made a prayer that he may be allowed to deposit the entire decretal amount together with fifty per cent, compensation, so that the possession which had been delivered to the defendant may be re-delivered to him. He also prayed that the amount which he would deposit should not be allowed to be withdrawn by the defendant before the plaintiff's objection as to the right of the defendant had been decided. This application was allowed, and, on 2l December, 1940, the Court decided summarily that the defendant was entitled to make a deposit and to get some compensation. But the amount of compensation would be determined later. On 23 December, the plaintiff agreed that the possession should be given to him and the defendant should be allowed to withdraw the entire amount, but "the size of the compensation" payable to the defendant, to adopt the language of the learned Munsif, would be decided later. It is regrettable to find that three years had been allowed to elapse before the question as to how much compensation was to be paid to the defendant could; be considered by the successor of the Munsif who had passed the previous orders. On 5 June 1943, the learned Munsif thinking it was a very complicated matter, referred the parties to-the civil Court. Hence, the plaintiff instituted a suit on 6 May 1944, for the recovery of the amount of compensation which the defendant had withdrawn, that is to say, Rs. 551-14-0. He also claimed interest on that sum together with two other items.