Manohar Singh vs Gosain Janki Das

Dhavle, J.—This is an appeal against a decision of the Judicial Commissioner of Chota Nagpur setting aside a decision of the S.D.O., Munsif of Chaitra and decreeing a rent suit brought by Gosain Janki Das respondent 1.

The suit was brought on the footing that plaintiff Gosain Janki Das was the landlord of the holding in virtue of a rehan of a two annas share in the village in his guru and predecessors Gosain Ghannshyam Das. Ghanshyam Das had another chela Gosain Surju Das who, in the absence of the plaintiff on a pilgrimage, got his own name recorded in the survey and settlement papers. On his return Janki Das brought a title suit in 1913 against Sarju Das, and in 1914 the sujt was decreed on compromise, the property being partitioned by metes and bounds by the civil Court amin and delivery of possession being taken accordingly, the rehan falling entirely in the share of Gosain Das. The defence of the appellant Manohar Singh the tenant was that he had actually paid rent for the years in suit in good faith to appellant Bajo Pande and Bajo''s case was that in 1969 Sambat he had purchased the equity of redemption and in 1972 Sambat had paid off the whole of the mortgage debt to Gosain Surju Das and got back from him the mortgage bond and had since then been realizing rents from the tenant Manohar Singh.

The trial Court, which does not seem to have followed the case very intelligently, held that Manohar had actually paid rents to Bajo in good faith, that Bajo had acquired the two annas share by his purchase and redemption, that plaintiff''s title was far from clear, and that his partition decree against Surju Das did not operate to create between him and Manohar Singh the relationship of landlord and tenant.

On appeal the learned Judicial Commissioner found that Bajo could not have paid off Surju at the time alleged as the mortgage bond was then in the records of the civil Court that tried the title suit between the two chela''s of Mali ant Ghanshyam Das, that even if Bajo paid to Surju the whole amount due on the mortgage, this could not affect Janki Das''s title, which was established before the alleged payment, and that Manohar Singh did not in fact pay the rent for the years in suit to Bajo Pande.

It has been contended before me that the learned Judicial Commissioner was mistaken in holding that the mortgage could not be discharged by payment to Surju Das alone, and stress is laid on the indivisibility of a mortgage; but the indivisibility of a mortgage, unquestionable as it is, will not operate to enable one of the co-heirs of a mortgagee to grant a release of the mortgage : vide Banamali Satpathi v. Talua Eamhari [1920] 5 Pat. L. J. 151: 55 I. C. 841: 1 Pat. L. T. 102. Janki Das''s title to the entire mortgage had, moreover, been established by his decree against Surju Das prior to the alleged payment by Bajo to Surju. The learned Judicial Commissioner is plainly right in observing that after the partition decree nothing that Surju could do could affect the title of the plaintiff.

The only other point pressed before me is that the statement of the lower appellate Court to the effect that the Court''s endorsement on the (rehan) document itself shows that it was filed in Court in the partition suit on 25th February 1914, is not borne out by an inspection of the document and is, therefore, based on no evidence. I cannot find the endorsement on the document, and it is possible that the date when the document was filed in the partition suit was taken from other materials (of which, there are actually some in the record.) It is, however, unnecessary to pursue the point, because whether Bajo did or did not pay Surju Das, at the time alleged the payment could not affect the title of the plaintiff Janki Das.

The appeal thus fails and must be dismissed with costs.