Bhagwat Rai vs Gorakh Rai and Others

Mohamad Noor, J.—This appeal arises out of a redemption suit. One Girja Rai had two holdings: one of 5 bighas 12 kathas 9 dhurs in village Harpur and another of 1 bigha 8 kathas 5 dhurs in village Ekma. He by a deed, dated 17th January 1910, gave these two holdings in usufructuary mortgage to the defendants. Two years later, in the year 1912, he sold 2 bighas out of the Harpur holding to the mortgagees and then left the village for an unknown destination and has not been heard of since then. The plaintiff claiming himself to be the heir of Girja Rai, he not having heard of him for more than seven years, brought the present suit for redemption of the mortgage of these two holdings. This suit was resisted on the ground that in respect of the two bighas of Harpur holding the equity of redemption was transferred by Girja Rai to the mortgagees themselves and therefore the right of redemption was lost and further that the Bettiah. Raj, the landlord of Harpur holding, treated it as an abandoned one and settled it with Naujad Rai who sold it to the defendant who was in possession not as a mortgagee but in his own right.

The equity of redemption was lost on account of the entry of the landlord on the holding. Regarding the Ekma holding it was alleged that the same was sold for arrears of rent and was purchased by one of the defendants who under a family arrangement had nothing to do with the mortgage. The trial Court decreed the suit except in respect of two bighas of the Harpur holding. The lower appellate Court agreed with the trial Court in respect of the Ekma holding and dismissed the defendant''s appeal. The defendant''s appeal (S.A. No. 245 of 1932) to this Court in respect of it has been dismissed on 7th November 1933. The lower appellate Court however entirely dismissed the plaintiff''s suit in respect of the Harpur lands holding that Girja Rai abandoned it and that the Bettiah Raj, treating it as such, entered upon it and settled it with Naujad Rai and the latter sold it to the defendant. The plaintiff has preferred this second appeal which only relates to Harpur lands.

The learned advocate for the appellant has assailed the judgment of the learned Subordinate Judge on the ground that his decision as to the holding being abandoned was wrong in law. It is also contended that there was no change of possession. The defendant who was in possession as a mortgagee continued in possession as such. The learned Subordinate Judge when dealing with the question of abandonment says:

The question in each case is a question of intention. If a tenant leaves his village having made arrangements for the cultivation of the land and the payment of the rent during his absence, which he intends to be temporary, there would be no abandonment. But if he makes these arrangements and then leaves the village never intending to return, there will be abandonment.

The proposition is perfectly correct but there is absolutely no evidence on the record and none has been referred to by the learned Subordinate Judge to show that Girja Rai, when he left his home, had no intention to return. If a man leaves his home and does not return to it there is no presumption that he never intended to return. It may be that he left the village for a pilgrimage with full intention of coming back to his home but somehow or other either he met with an accident or suddenly died and did not return. He had also mads arrangements for the cultivation of the lands and payments of rents to the landlords through the mortgagees and the mortgagees were all along paying, the rents to the landlords.

From the fact that Girja Rai did not return no-presumption arises that he never intended to return. It must therefore be conceded that the judgment of the learned Subordinate Judge, so far as it is based upon the abandonment of the holding by Girja Rai, is not correct. But the plaintiff''s suit must fail on another ground which though dealt with by the learned Subordinate Judge, is not the main ground on which he has dismissed the suit. The plaintiff''s father Kauri Raj in a way in his application to the Bettiah Raj invited it to treat the holding as abandoned. The application was to this effect:

I most humbly and respectfully beg to bring to your kind notice that my cousin Girja Rai left the village long ago and it is not known whether he is alive,

Now when Naujad Rai sold the holding to the defendant under the kabala (Ex. B) the plaintiff himself attested it after hearing its contents. No doubt, in that sale-deed Naujad Rai purported to hold the land not under the settlement from the Bettiah Raj but as an heir of Girja Rai. Perhaps at that time Naujad Rai was supposed to be the preferential heir of Girja Rai. This is however immaterial. The fact remains that according to the finding of the learned Subordinate Judge, Naujad Rai in the presence of the plaintiff treating the holding as his own transferred it to the defendant and the defendant believing that Naujad Rai had full right to do so purchased it and paid the consideration.

The plaintiff was present at the transaction and attested the deed having heard its contents. In my opinion the plaintiff is now estopped from challenging the right of the defendants. The case is similar to Sarat Chander Deh v. Gopal Chander Laha (1893) 20 Cal 296, decided by the Privy Council. The plaintiff''s father by his application before the Bettiah Raj and the plaintiff himself by his attestation of the deed after having heard its contents led the defendant to believe that he was acquiring a good title to the land from Naujad Rai. In my opinion the plaintiff''s suit in respect of the Harpur holding has been rightly dismissed, though perhaps the ground given by the learned Subordinate Judge is not quite sound.

The ground of estoppel, which I have stated above, was however not altogether absent from his mind. The appeal is dismissed with costs.