Munga Lal vs Sagarmal and Another

Mohamad Noor, J.—The suit out of which this appeal has arisen was instituted by the plaintiff-respondents for recovery of one-half share in about fifty bighas of land comprised in khata No. 419 of village Murar. In the settlement record of 1904 this khata was recorded in the name of two tenants Sri Lal and Devi Prasad. Sri Lal is represented by the defendants third party and Devi Prasad and his son are the defendants second party. The plaintiffs are the purchasers of half this khata in execution of their mortgage-decree, dated 14th March 1925, based upon a mortgage executed by Devi Prasad on 10th February 1920. The sale took place on 13th November 1926, and a writ of delivery of possession was formally served on 9th August 1927. But the plaintiffs were not allowed to take possession of the land by the defendants first party who claimed to have purchased on 27th August 1920, the entire land of the khata in execution of their own mortgage decree based upon a mortgage executed by Sri Lal alone on 28th July 1911. A preliminary decree for sale in favour of the defendants first party was passed on 9th November 1919, and made final on 27th August 1920. The plaintiffs have, therefore, instituted the present suit for recovery of possession on the basis of their title.

It is clear from what I have stated that the main controversy between the parties was whether the earlier purchase of the entire holding by the defendants first party should prevail against the later purchase of half of the holding by the plaintiffs. The question depended upon the fact whether Sri Lal who mortgaged the entire holding to the defendants first party was entitled to do so, or whether in fact half of it belonged to Devi Prasad who mortgaged it to the plaintiffs. Now in the suit instituted by the defendant first party to enforce their mortgage Devi Prasad was impleaded as defendant and it was alleged by the defendants first party, plaintiffs of that suit, that Devi Prasad had attested the mortgage which Sri Lal executed in their favour. The question whether Devi Prasad had any interest in the mortgaged property or whether the whole of it belonged to Sri Lal was left undecided at the time of the passing of the preliminary decree, but the suit was dismissed against Devi Prasad. It was after the dismissal of this suit against him that Devi Prasad created the mortgage in favour of the plaintiffs. The date of the dismissal of the suit was 9th November 1918, and the date of the mortgage as already stated was 10th February 1920.

On the main issue of fact both the Courts below have held that Devi Prasad was owner of half of the holding and that Sri Lal was not entitled to mortgage the whole of it to the defendants first party. It, however, transpired in the course of the trial of the suit that the defendants first party after their mortgage and before the institution of their suit to enforce it had to pay up a decree for rent against the holding and by virtue of section Section 171, Ben. Ten. Act (now Bihar Tenancy Act) had acquired another mortgage on the entire holding in respect of the money so paid for the satisfaction of the rent decree and that in fact they had included this amount of Rs. 280-3-0 in their mortgage suit. The Courts below decreed the plaintiffs'' suit for possession subject to the payment of half of the money paid by defendant 1''s party for saving the holding from sale together with interest at 12 per cent. per annum from the date of the payment. Defendant 1''s party have preferred this second appeal.

The finding of fact about the title to half of the land being in Devi Prasad and therefore in the plaintiffs by virtue of their purchase in execution of their decree on the basis of the mortgage created by Devi Prasad, has not been and cannot be questioned in second appeal. Mr. Manuk however has urged two points in support of the appeal. One is that the suit was barred by limitation under Article 47, Lim. Act, and the second that the mortgage of defendant 1''s party by virtue of Section 171, Ben. Ten. Act, was indivisible and the Courts below were wrong in ordering the payment of half of the money only. It was also mildly contended that by virtue of the sale in execution of the mortgage decree, which included the claim of the money paid towards the satisfaction of the rent decree, the right of redemption of Devi Prasad or his transferee, if any, had become barred. In order to understand the point of limitation urged by learned Counsel it is necessary to state some more facts. After defendant 1''s party had purchased the property in execution of their mortgage decree there was some difficulty about the possession of the land, and in a proceeding u/s 145, Criminal P.C., to which Devi Prasad, the mortgagor of the plaintiffs, was a party, the criminal Court decided the question of possession in favour of defendant 1''s party on 13th June 1922. The present suit having been instituted on 8th June 1928, it was contended that it was barred by the special article of limitation already referred to. This plea of limitation was overruled by the Courts below and in my opinion they are perfectly correct. Article 47, Lim. Act, prescribes three years'' period of limitation for suits

by any person bound by an order respecting the possession of Immovable property made under the Criminal Procedure Code of 1898, or the Mamlatdars Courts Act, 1906, or by anyone claiming under such person, to recover the property comprised in such order.

It is obvious that the present plaintiffs were not parties to that criminal proceeding, and in fact they could not have been parties to it, which was instituted at a time when they had no higher right than that of a simple mortgagee and as such were not entitled to claim possession of the property. In a proceeding u/s 145 the only question which a Magistrate has to decide is the possession of the disputed property on a certain date. The question of title is outside the scope of that proceeding. At that time the only person who claimed possession adversely to defendant 1''s party was Devi Prasad, and not the plaintiffs who were only simple mortgagees. Therefore they are not bound by the order which was passed in that proceeding. The next question is whether they can be taken to be claiming under Devi Prasad who was obviously bound by that order. In my opinion the words "claiming under such person" mentioned in the article refer to those persons who claim from the person bound by the order under a title created subsequent to the order and not those who claim under a title created prior to the order. Any other interpretation will lead to anomalous results. It is obvious that the plaintiffs were not entitled to institute any suit for recovery of possession of the property within three years of the order. As I have said, the order was passed on 13th June 1922, and the plaintiffs purchased the property in November 1926, and the formal delivery of possession was issued in August 1927. In my opinion, the plaintiffs are not debarred from instituting the suit for recovery of possession as their right in the property as mortgagees came into existence on the date of their mortgage and before the order. They cannot be said to be the persons claiming through Devi Prasad who was bound by that order. The learned Counsel for the appellants referred us to a decision in Bapu Mahadaji v. Mahadaji Vasudeo (1894) 18 Bom 348, where the observations are to be found at p. 354.

That was a case under the Mamlatdar''s Courts Act, but the distinction between that case and the present one is obvious. There the plaintiff derived his title subsequent to the order from a man who was bound by the order. On the other hand there is a clear decision of the same High Court in Amu Dada v. Dhondo Raghunath (1904) 6 Bom LR 305 where the facts were exactly similar and it was held that Article 47 was not applicable. The next point urged was in respect of the order of the Courts below about the payment of only half of the money deposited by the defendants first party for the protection of the holding. No doubt, it is true that a mortgage is indivisible and is spread over the entire mortgaged property, but there are certain exceptions to this rule and one of these exceptions is mentioned in Section 60, T.P. Act. When a mortgagee acquires a portion of the mortgagor''s interest in the mortgaged property those who are interested in the remaining portion of it are entitled to claim redemption by payment of their quota only, the principle being that to the extent the interest of the mortgagor and the mortgagee is combined in one person the mortgage must be taken to have become extinguished. Learned Counsel contended that in this case the mortgage being based not upon any contract but under the statute the provisions of Section 60, T.P. Act, do not apply. Section 171, Ben. Ten. Act, only provides that the payment of money to save a holding or tenure from sale will create a mortgage by the operation of the law in favour of the man who pays it. But the rights and liabilities of the mortgagor and mortgagees will have to be governed by the law which applies to mortgages in general, and in my opinion under the circumstances of the case the plaintiffs were entitled to redemption on payment of only half of the money paid by the defendants first party.

It is true that the present suit was instituted as a suit for recovery of possession pure and simple and was not a suit for redemption, but there is nothing in law which prevents a Court from ordering possession on redemption if in the course of the trial it is found that the defendant is entitled to remain in possession of the property as a mortgagee till the mortgage is redeemed. Under these circumstances the Courts are entitled to grant a decree for possession subject to the plaintiffs redeeming the property by payment of the mortgage money. Several cases have been referred to by learned Counsel, but none of them, in my opinion, is to the point. Under a clear provision of Section 60, T.P. Act, itself the mortgage has become split up by the defendant first party purchasing half of the holding and the plaintiffs are entitled to the decree in the form in which it has been given to them by the Courts below. I have said that it was mildly urged by learned Counsel that the sale having taken place by virtue of a statutory mortgage on the whole of the property the right of redemption has become barred. The obvious answer to this contention is that in the mortgage suit of the defendants first party Devi Prasad, who had the right to redeem, was exonerated and the suit was dismissed as against him. His right of redemption was not lost, and the plaintiffs are entitled to redeem. These were the only points urged in the appeal, and none of them has any merits. I will dismiss this appeal with costs.

Rowland, J.

I agree.