Patna High Court
Bariar Singh vs Durga Gir And Ors. on 29 July, 1952
Equivalent citations: AIR1952PAT476, AIR 1952 PATNA 476
JUDGMENT
1. This appeal by the plaintiff is directed against the judgment and decree passed by the Additional District Judge of Shahabad reversing those of the third Additional Subordinate Judge of the same place.
2. The facts relevant for the decision of this appeal may shortly be stated as follows. The plaintiff filed the suit for redemption in respect of 3.93 acres of land situated in village Doma Dehri Tauzi No. 3309 of the Shahabad Collectorate. His case was that he and the defendants third party are the raiyats of this holding. On the 23rd of May 1932 an area of 3 bighas 15 kathas and 17 dhurs out of the entire holding of 3.93 acres was given in usufructuary mortgage by the plaintiff and defendant No. 7 to Ramnandan Gir, father of defendants 2 to 4, and Durga Gir, defendant No. 1. Defendant No. 5 is nephew of defendant No. 1. The properties given in rehan continued to remain in possession of the family of defendants 1 to 5. According to the terms of the rehan bond the rent and other charges in respect of the holding were payable by the rehandars.
Sometime in 1934 the plaintiff came to know that on account of default of the mortgagees the holding had been advertised for sale at the instance of the landlord. The plaintiff was also in need of some more money to defray other expenses. He, therefore, approached defendant No. 1 with whom an agreement was reached, according to which the plff, executed a hand-note for Rs. 225/- in favour of defendant No. 5 at the direction of defendant No. 1 who agreed to discharge the entire decretal dues for which the holding had been advertised for sale. For satisfaction of the interest due on the handnote and for satisfaction of a portion of the principal amount the plaintiff gave the remaining area of the holding in rehan to defendant No. 1. In pursuance of the above agreement an application was filed in the certificate proceedings by defendant No. 1 for permission to deposit the entire money, but due to the fraud of the defendants 1st party the holding was sold and purchased in the name of defendant No. 5.
The case of the plaintiff further was that in order to put obstacles in his way defendants 1 to 5 brought into existence a collusive sale deed dated the 5th of May 1943 in favour of defendant No. 6 in respect of the entire area. According to the case of the plaintiff he went to tender the rehan money to the mortgagees but as they did not accept it he was compelled to bring the present suit. In the suit the plaintiff claimed a relief for redemption of the entire area, or in the alternative for damages to the tune of Rs. 4200 from defendants 1 to 6.
3. The suit was contested by defendants first and second party. According to the case of the constesting defendants, it was the mortgagors who are liable to pay the rent etc., of the holding which was sold by auction due to the default of the mortgagors themselves. They denied the alleged agreement by which the defendants first party are said to have undertaken to pay the decretal amount and save the holding from being sold. They further pleaded that defendant No. 5 was separate from defendants 1 to 4 and that defendant No. 6 was not a farzidar for the rehandars. Defendant No. 6 claimed to be a bona fide purchaser for value of the holding in question. They further pleaded that the suit was fit to be dismissed.
4. The trial court dismissed the suit. It held that defendants 1 to 5 were members of a joint Hindu family and that the purchase by defendant No. 5 was in fact a purchase by the rehandars themselves. The trial court did not accept the case of agreement set up by the plaintiff by which the mortgagee had agreed to discharge the entire decretal dues and save the holding from being sold. He also held that defendant No. 6 was not a farzidar for the mortgagees. On these findings the suit was dismissed.
5. The plaintiff thereafter went in appeal. The appellate court also confirmed the finding of the trial court to the effect that defendants 1 to 5 were members of a joint Hindu family and the purchase in the name of defendant No. 5 at the auction sale was really a purchase by the mortgagees themselves. The lower appellate court believed the case of agreement set up by the plaintiff by which defendant No. 1 had undertaken to save the holding by discharging the certificate dues. It also held that the mortgagees had committed fraud in purchasing the holding in the name of defendant No. 5 who was a member of their joint family. The lower appellate court held that defendant No. 6 was not a farzidar of the mortgagees. It, however, held that as there had been a contributory negligence on the part of the plaintiff by not making an enquiry whether the certificate debt had been discharged by the mortgagees or not, he was entitled to merely damages as against the defendants first party. In that view of the matter, the lower appellate court passed a decree for damages in favour of the plaintiff. The plaintiff has thereafter come up in second appeal to this Court.
6. The learned Counsel for the plaintiff-appellant contended that on the finding that the certificate sale was brought about by the fraud of the mortgagees who themselves purchased the properties given in rehan in the name of defendant No. 5, who was one of the members of their joint family, the court of appeal below should have held that the equity of redemption owned by the plaintiff had not been extinguished. In support of his contention he relied upon the decisions in the cases of -- 'Ram Rup v. Jang Bahadur' 30 Pat 391 and -- 'Deo Saran Singh v. Barhu Singh', AIR 1952 Pat 286. The learned counsel for the plaintiff-appellant further submitted that the term for payment of rent etc. as incorporated in the usufructuary mortgage bond in suit was similar to that of the mortgage bond which was under consideration in the case of -- 'Deo Saran Singh', above-mentioned. Learned Counsel for the appellant further submitted that even if defendant No. 6 be held not to be the farzidar for the mortgagees, he will be deemed to have purchased nothing more than the right of the usufructuary mortgagees, and as such the plaintiff was entitled to get a decree for redemption.
7. Learned Counsel for the defendant No. 6, on the other hand, contended that his client having been found not to be the farzidar of the mortgagees, the only decree that could have been passed in favour of the plaintiff, namely, a decree for damages against the original mortgagees has been passed by the court of appeal below. According to him, the plaintiff having prayed for an alternative relief and having been granted one, he is estopped from filing the present appeal. In my opinion, there is no substance in this contention. As held in the case of -- 'Amir Mahton v. Sheopujan Missir', 25 Pat 1, even if the alternative relief was granted to the plaintiff, he is not debarred from filing this appeal for possession of the properties in suit after redemption.
8. It was next contended by the learned Counsel that on the finding of the courts below to the effect that defendant No. 6 is not the farzidar of the mortgagees, his possession cannot be disturbed. I am afraid, I am not inclined to accept this argument. As I have held above, defendant No. 6 will be deemed to have purchased the right of the usufructuary mortgagee only, and he cannot be heard to say that he is not bound to give up possession to the plaintiff who is prepared to redeem the mortgage. From the evidence of D.W. 5 brother of defendant No. 6 who has not been examined, it is clear that at the time of sale the original rehan bond was handed over to him. It was the duty of defendant No. 6 to have looked into the bond and to have seen who was liable to pay the rent for the default of which the holding had been sold. D.W. 5 also admitted in his deposition that he had made no enquiry as to the title of defendant No. 5 to the lands in suit. That being the position, defendant No. 6 cannot, on any ground, resist the claim of the plaintiff for redemption of the properties in suit. In my opinion, the relief for redemption should have been granted to the plaintiff.
9. The result is that the judgments and decrees passed by the courts below are set aside, the suit for redemption is decreed and this appeal is allowed with costs throughout. The costs of both the courts below will be payable by defendants 1 to 5 and the costs of this court will be payable by defendant No. 6. The plain tiff is held entitled to get possession of the properties in suit after deposit of Rs. 1525/-
to the credit of the heirs of defendant No. 6in the trial court within three months from to day.