Narain Mishra v. Mahanth Mishra — 1952 DIGILAW 40 (PAT)

Judgement SARJOO PROSAD, J. :- These two appeals arise out of the same judgments of the two Courts below. Second Appeal No. 2357 of 1948 has been preferred by the defendant No. 1 to the suit to which these appeals relate. The other appeal (Second Appeal No. 108 of 1949) has been preferred by the defendant third party, the landlord of the lands in dispute. The dispute relates to two plots of lands described in the survey by plots 2620 and 2137 of khata No. 299 of village Bargaon covering an area of 7 bighas 4 dhurs. The lands in question admittedly were the kasht lands of one Chunchun Jha but the landlord in execution of a rent decree against the tenant got the holding sold and purchased it himself, and thereafter settled the lands with Kusheshwar, son of the said Chunchun Jha. In August 1921, Kusheshwar sold the lands to Jageshwar Jha, defendant No. 10, the defendant fourth party in the suit. This sale was recognised by the landlord and Jageshwar was recorded as a raiyat in the landlords office. The plaintiffs case is that this Jageshwar Jha was a benamidar of the plaintiffs, and that the plaintiffs were the real purchasers of the disputed lands, and it appears that on the 25th of July 1928 Jageshwar Jha executed a deed of bajidawa or relinquishment in favour of the plaintiffs in respect of these lands. The plaintiffs on the 3rd August 1928 executed a mortgage bond with respect to these lands in favour of two brothers Sudhakar Misra and Bidyakar Misra for a sum of Rs. 800/-. Sudhakar is defendant No. 2 in the suit and Bidyakar being dead, his heirs and legal representatives defendants 3 to 8 were made parties to the action, defendant No. 7, Bijender, being one of the heirs. The mortgage in question related not only to these lands but to certain other lands which were hypothecated to the mortgagees for the payment of the debt. The plaintiffs alleged that subsequently the mortgagees were put in possession of the mortgaged property, and, out of the consideration for the mortgage, a sum of Rs. 50/- was left in the hands of the mortgagees in order to pay off the arrears of rent due to the landlord. The plaintiffs alleged that subsequently the mortgagees were put in possession of the mortgaged property, and, out of the consideration for the mortgage, a sum of Rs. 50/- was left in the hands of the mortgagees in order to pay off the arrears of rent due to the landlord. The facts, however, show that the landlords dues remained unpaid, and in consequence the landlord sued for rent the recorded tenant Jageshwar Jha, obtained a decree in September 1929 and in execution of that decree, the lands were sold and purchased by the appellant, defendant No. 1. The plaintiffs allege that the liability to pay the rent was on the mortgagees and the plaintiffs were unaware of the rent suit decree or the execution proceedings or the sale held thereunder. They, therefore, said that they being ignorant of these proceedings in due course paid up the mortgage dues on the 20th of January 1939, to the mortgagees who accepted the payment and even delivered possession of the mortgaged property to the plaintiffs including the disputed lands; but in November 1941, the mortgagees began to interfere with the possession of the plaintiffs and claimed the lands in suit. It is only then that the plaintiffs on enquiry discovered, according to the allegation in the plaint, that a rent suit had been filed by the landlord in which a decree was obtained and in execution whereof the lands had been sold and purchased by the defendant No. 1. The plaintiffs challenge the rent suit, the decree and the execution proceedings as being collusive and fraudulent to defeat their interest; and they further allege that the lands were purchased at the auction sale by the mortgagees themselves in the name of the defendant first party who is their relation. On these allegations the plaintiffs filed the suit for declaration that they were not bound by the decree in the rent suit or the sale in execution thereof and for confirmation of possession, or, in the alternative, for recovery of possession of the disputed lands. They also prayed that in case it was held that the mortgage bond, dated the 3rd of August 1928, had not been redeemed, the plaintiffs should be allowed to redeem the same. 2. They also prayed that in case it was held that the mortgage bond, dated the 3rd of August 1928, had not been redeemed, the plaintiffs should be allowed to redeem the same. 2. The suit was contested by the defendant No. 1 - the auction-purchaser, defendants 3 to 7 of the second party - the mortgagees, and the defendant third party - the landlord. Defendant No. 2 of the second party does not appear to have entered any contest. These various sets of defendants filed separate written statements. The defendant first party contended, inter alia, that the plaintiffs had no cause of action; that Jageshwar Jha, the recorded tenant was not the benamidar of the plaintiffs, that the mortgagees were not in possession of the lands in suit, and there was no liability or default on their part to pay the landlords rent; that the rent suit decree and the execution proceedings which followed were legal and valid; that the auction purchase by this defendant was in his own rights and not as a benamidar for the mortgagees; and that all the allegations of the plaintiffs to the contrary were false and unfounded. He also contended that the suit was barred by limitation. The defendants 3 to 7 denied the alleged redemption of the mortgage bond by the plaintiffs and they further supported the case of the defendant first party that he was not a benamidar of the mortgagees. The landlord, defendant third party, stated that the suit had been properly instituted by him against the recorded tenant and that there was no collusion or fraud on his part, and therefore the plaintiffs had no right to sue this defendant. 3. The learned Munsif who tried the suit dismissed the same disbelieving almost the entire case of the plaintiffs in a fairly elaborate judgment. He held that Jageshwar, defendant fourth party, was not the benamidar of the plaintiffs. He also disbelieved the case of the plaintiffs that by a subsequent oral agreement the mortgagees had come in possession of the mortgaged property and were entitled to satisfy the interest due out of the usufruct or that any sum of money was left with the mortgagees for payment of the outstanding dues of rent to the landlord, or that there was any liability on the part of the mortgagees to pay the landlords rent. He held, on the contrary, that the mortgagees were not bound to pay the rent and they did not make any default, that there was no fraud in the rent suit or in the execution proceedings either on the part of the landlord or on the part of the mortgagees, and that the sale in execution of the decree in favour of the defendant No. 1 was binding upon the plaintiffs and conveyed a good title to the purchaser - the defendant No. 1 who was not a benamidar of the mortgagees. He also found that the plaintiffs suit was barred by limitation. In regard to the allegation of the plaintiffs that the mortgage bond had been redeemed by payment on the 20th January 1929, he found in favour of the plaintiffs, but at the same time he held that the plaintiffs had not come into possession of the disputed lands as alleged by them. 4. On appeal, the lower appellate court has reversed all those findings of the learned Munsif which were against the case of the plaintiffs, except in regard to the allegation of fraud and collusion on the part of the defendant third party, the landlord; and has accordingly decreed the suit declaring the title of the plaintiffs to the disputed lands and confirming their possession. Most of these findings are findings of fact which could not be challenged in second appeal before this Court, but Mr. Kamala Kanta Varma appearing on behalf of the appellant raised various points in support of the appeal. 5. He has contended, in the first place, that no evidence was admissible to prove that the mortgagees had been put in possession of the mortgaged property, and Section 92 of the Evidence Act was a bar to the admissibility of any such evidence. He contends that the mortgage bond was admittedly a simple mortgage bond under which the hypothecated properties did not pass into possession of the mortgagees but remained in possession of the mortgagors who were under a personal covenant to pay the mortgage dues, and any evidence to show that the mortgagees had coma into possession of the mortgaged property was in contravention of the terms of the bond, and as such had to be ruled out of evidence. In support of his contention, he relied upon various decisions: FEROZ SHAH v. SOHBAT KHAN, 60 Ind App 273 (PC), KALI DEEN SINGH v. JAGDAT PATHAK, AIR 1930 All 440, and KHUB LAL v. BECHAN MANDAL, 21 Pat LT 437. In my opinion, it is unnecessary to examine these decisions in any detail because they have not much relevancy to the point under consideration. The two courts below were justified in taking evidence on the point whether or not the mortgagees had actually come into possession of the mortgaged property. Such evidence was not in contravention of the terms of the mortgage bond but they were only necessary to prove the fact that the mortgagees had actually taken possession of the mortgaged property. Such evidence is not for the purpose of contradicting, varying, adding to or subtracting from the terms of the mortgage bond, and Section 92 of the Evidence Act does not shut out any such evidence. If the fact is as it has been in this case, that after the execution of the mortgage bond in question, the mortgagees actually came into possession of the mortgaged property, I do not see why this fact which has nothing to do with the terms of the mortgage bond, cannot be proved by adducing evidence in the case. There may be much strength in the contention of the learned Counsel that evidence of this nature does not come under proviso (4) of Section 92 of the Evidence Act, because if it were to be regarded as an evidence of a subsequent oral agreement modifying or rescinding the terms of the contract, it would not be permissible, the contract in the present case being a registered contract. But as I have said, proviso (4) to Section 92 or Section 92 itself has nothing to do with the present case where what was sought to be proved is the factum or possession of the mortgaged property by the mortgagees. Instances are too numerous to mention that in such cases evidence of this nature has been entertained; see, for instance : KAMALA SAHAI v. BABU NUNDAN, 11 Cal LJ 39, RAMAWATAR SINGH v. TULSI PROSAD SINGH, 16 Cal WN 137; RAM BAKSH v. DURJAN, 9 All 392, as also MADARI v. BALDEO PROSAD, 27 All 351, a Full Bench decision of the Allahabad High Court. I may also refer to two other decisions of the Madras High Court, viz., LAKSHMINARASIMHA v. RAGHAVAMMA, AIR 1936 Mad 380 and V. KRISHNASWAMI RAO v. R. SRINIVASA DESIKAN, AIR 1937 Mad 261. The case last referred to is a decision by the eminent Judge Varadachariar, J. In that case, the suit was by the mortgagee for sale of the mortgaged property, and the mortgagor pleaded that there was an oral agreement between him and the mortgagee resulting in the settlement of the mortgage dues at a certain amount and also that a certain property should be sold to the mortgagee in full discharge of the mortgage debt. It was held that the mortgagor was entitled to adduce evidence to prove the oral agreement. In discussing Section 92 his Lordship pointed out : "The main clause excludes evidence of any oral agreement for the purpose of contradicting, varying, adding to or subtracting from the terms of a contract, etc. proved in the manner provided for by Section 91. The provisos introduce certain exceptions (or apparent exceptions) and to prov. 4 there is an exception. The language of the exception in the proviso does not of itself prohibit or exclude any kind of evidence; it merely excludes the benefit of the proviso in the excepted cases; with the result that in these cases the prohibition contained in the main part of the section will apply. We have accordingly to consider whether the oral agreement alleged in the written statement contradicts, varies, adds to or subtracts from the mortgage document. "It is settled by a long line of authority - and Mr. Bhashyam does not deny - that a debtor may plead and prove an actual discharge in a manner or on terms different from those contemplated by or provided for in the document evidencing the debt. But relying on the distinction drawn in the cases between a discharge and an agreement to give a discharge in future, he maintains that in the present case the alleged contract to take a sale of a portion of the hypotheca in satisfaction of the debt amounts to nothing more than an agreement to give a discharge if and when the sale is completed and is therefore within the prohibition contained in Section 92. This argument seems to us to rest on a misapprehension of the legal effect of the contract of sale in such cases." I therefore hold that evidence was admissible to show that the mortgagees had subsequently come in possession of the mortgaged property, and that the interest payable on the simple mortgage bond in favour of the mortgagees was to be satisfied out of the usufruct of the mortgaged property. That being so, the mortgagees took possession of the mortgaged property during the continuance of the mortgage, and in the absence of a contract to the contrary, they were liable to pay the rent accruing due in respect of the mortgage during such possession under Section 76(c) of the Transfer of Property Act. The finding of the learned Subordinate Judge, therefore, based as it is upon the evidence adduced on the point cannot be challenged in appeal before this Court. It is true that the learned Subordinate Judge has found in favour of the plaintiffs as did the learned Munsiff that Rs. 50/- was not left with the mortgagees to pay the arrears of rent to the landlord, but nonetheless there was a liability on the part of the mortgagees to pay the rent due during the continuance of the mortgage, they having come in possession of the mortgaged property; and therefore they having defaulted in payment of such rent, they could not take advantage of any such default to purchase the property in the name of the defendant No. 1, who also has been established to be a benamidar of the mortgagees. The point has been fully discussed by me in a recent decision of this Court in DEO SARAN SINGH v. BARHU SINGH, Second Appeal No. 2123 of 1948 (Pat) decided on the 19th of February 1952. 6. Mr. Varma next challenged the finding of the learned Subordinate Judge that defendant No. 1, auction-purchaser, was not a benamidar of the plaintiffs. In this connection, he referred to the findings of the learned Munsiff and argued that the learned Subordinate Judge has not dealt with all the reasonings of the learned Munsif before reversing his finding. I have carefully examined the decision of the learned Subordinate Judge on the point, and I find it difficult to accept the contention of Mr. Varma. In this connection, he referred to the findings of the learned Munsiff and argued that the learned Subordinate Judge has not dealt with all the reasonings of the learned Munsif before reversing his finding. I have carefully examined the decision of the learned Subordinate Judge on the point, and I find it difficult to accept the contention of Mr. Varma. It is quite obvious that the learned Subordinate Judge has applied his mind to the evidence and referred to some of the salient circumstances for coming to the conclusion that the defendant No. 1, who was the wifes brother of one of the mortgagees, Bidyakar Misra, was merely a name-lender for the mortgagees at the auction-purchase, and in second appeal I find no reason to interfere with this finding of the learned Subordinate Judge. 7. The learned Counsel has next contended that the learned Subordinate Judge should have held that the suit was barred by limitation as governed by Art. 12 or Art. 95 of the Limitation Act. The learned Subordinate Judge points out that the suit in substance is a suit for declaration of title and confirmation of possession, or, in the alternative for recovery of possession, and the appropriate article applicable to such a case was either Art. 142 or Art. 144 of the Limitation Act which prescribes a period of 12 years from the date of the cause of action. The plaintiffs alleged that after the payment of the mortgage dues in January 1939 they came in possession of the mortgaged property including the disputed lands but in November 1941 the mortgagees started interfering with the plaintiffs possession. This case of the plaintiffs, though disbelieved by the learned Munsif, has been accepted by the learned Subordinate Judge, and I do not see how we can in second appeal come to a contrary conclusion however unsatisfactory the finding may be. The learned Subordinate Judge having found that the plaintiffs had come into possession of the disputed lands after the redemption of the mortgage in 1931 was right in holding that the suit was not barred by limitation, and in my opinion, his decision on the point cannot be successfully assailed. 8. The learned Subordinate Judge having found that the plaintiffs had come into possession of the disputed lands after the redemption of the mortgage in 1931 was right in holding that the suit was not barred by limitation, and in my opinion, his decision on the point cannot be successfully assailed. 8. The only other point which remains to be considered and which perhaps requires a most serious consideration is the question that Bijendra, defendant No. 7, was not impleaded as a party to the appeal before the lower appellate court. The learned Counsel for the appellant contends that in the absence of defendant No. 7, who was a necessary party to the appeal, the appeal was incompetent and had to be dismissed because otherwise it was bound to lead to a conflict of decision as it was done in the present case. It is to be remembered that the learned Munsif had found that the mortgagees had not come in possession of the mortgaged property, that there was no liability on their part to pay the landlords rent, that they had not committed any default in the payment of the mortgage dues, and that the defendant No. 1, the auction-purchaser, was not their benamidar. On these findings, the learned Munsif had dismissed the suit in favour of the mortgagees. These findings were in favour of the defendant No. 7, and the decree dismissing the suit had become absolute so far as he was concerned. In order to have the decree set aside, and to get those findings reversed it is contended that it was quite necessary to implead as a party to the appeal the defendant No. 7 as well, and that not having been done, the appeal was incompetent and should have been dismissed on that account. Reliance has been placed in this context upon a decision of this Court in RAJESHWARI PD. v. SAHEB SINGH, AIR 1939 Pat 198, where it was held that in a case where a decree is obtained in the names of individual members of a joint family the question of representation does not arise and an appeal against that decree must be preferred against all the persons in whose name the decree stands, and if one of them is given up in appeal, the appeal could not proceed against the remainder, and as such it had to be dismissed. The decision in question strongly supports the contention of the learned Counsel. In my opinion, the absence of defendant No. 7 as a party to the appeal in the court below rendered the appeal incompetent and no decree reversing the decision of the learned Munsif could be passed as against the other mortgagees to the suit even assuming that the defendants 3 to 8 were all members of the same family and impleaded in the suit as heirs and legal representatives of the deceased mortgagee Bidyakar Misra. Mr. De on behalf of the respondents contends that it was not necessary to make the mortgagees parties to the appeal at all because the learned Munsif had already found in favour of the plaintiffs in regard to the redemption of the mortgage bond: therefore, no question of redemption at all arose in the case, and the suit in the appellate stage should be treated as merely a suit for declaration of title and recovery of possession as against the defendant No. 1. the benamidar of the mortgagees who could be sued in that capacity. It is contended that the suit as such could have been instituted against the defendant No. 1 alone and consequently the right to sue survives in favour of the plaintiffs against the defendant No. 1 even in the absence of the mortgagee defendant No. 7. If the allegation were that the defendant No. 1 was interfering with the possession of the plaintiffs in spite of the redemption of the mortgage bond, perhaps there would be some justification for this contention. The allegation, however, is, as it appears from a perusal of the plaint, that the mortgagees, Sudhakar Misra, were interfering with the possession of the plaintiffs and had set up a hostile title in themselves on the basis of the purchase made in execution of the rent decree. That being so, I do not see how it could be possible for the plaintiffs to get a decree for recovery of possession or confirmation of possession as against the defendant No. 1 alone without suing the mortgagees themselves against whom they actually alleged a cause of action. That being so, I do not see how it could be possible for the plaintiffs to get a decree for recovery of possession or confirmation of possession as against the defendant No. 1 alone without suing the mortgagees themselves against whom they actually alleged a cause of action. The defendant No. 7 was, therefore, a necessary party to the suit even for declaration of title and recovery of possession, and all the more so a necessary party to the appeal when the plaintiffs suit had been dismissed in his favour and the adjudications which they claimed had been made against them by the learned Munsif. The plaintiffs themselves made him a party to the suit and did not purport to sue only the head member or karta of the joint family as representing the interest of the heirs of the deceased mortgagee, Biduakat Misra. They cannot, therefore, now claim that the other heirs of Bidyakar Misra sufficiently represented that interest, and, therefore, defendant No. 7, Bijendra, need not have been made a party to the appeal at all. The decision relied upon by the in AIR 1939 Pat 198 (Supra) negatives such a contention. The other reason which, in my opinion, also supports the contention of the learned Counsel for the appellant on this point is that the plaintiffs in the plaint made a prayer that they should be held entitled to the reliefs on payment of Rs. 251/-, the cost incurred by the mortgagees in paying up the decree in the rent suit with interest as a part of the mortgage amount. This was necessary in view of the fact that the declaration, that the purchase made by defendant No. 1 on behalf of the mortgagees would enure to the benefit of the mortgagors and would not affect their right of redemption could only be granted in their favour subject to payment of the cost incurred by the mortgagees in paying up the rent decree and acquiring the lands in suit by virtue of their purchase; see DEONANDAN PRASHAD v. JANKI SINGH, 44 Ind App 30 (PC). The learned Subordinate Judge appears to have lost sight of this factor in making a declaration in favour of the plaintiffs. The learned Subordinate Judge appears to have lost sight of this factor in making a declaration in favour of the plaintiffs. As far as I can see from the plaint, the plaintiffs only claimed that they had paid up the mortgage dues but they had not claimed that they had also paid up the amount to which the mortgagees were entitled in paying up the rent decree and acquiring the property in the name of defendant No. 1. This amount they were certainly bound to pay with interest thereon, and it was for this reason that they made a prayer to that effect in their plaint. This prayer could be granted to them only if all the mortgagees who were parties to the suit in the court below had been made parties in the appeal. These reliefs were evidently refused to them by the trial court, and so far as the defendant No. 7 is concerned, the decision of the trial court has become absolute in his favour. Now, it would lead to conflict of decisions if a decision to the contrary effect is given as against the other mortgagees who are parties to the suit. For these reasons I have no option but to hold that the defendant No. 7 was a necessary party to the appeal before the court of appeal below, and he not being impleaded as a party, the appeal was incompetent and should have been dismissed on this ground alone. I regret that the matter has to be decided against the plaintiffs on this technical basis alone, but the ground was vital to the maintainability of the appeal, and I see no escape from the position that the appeal before the learned Subordinate Judge in the absence of defendant No. 7 could not be entertained and allowed. It is true that defendant No. 7 is not a party to this appeal either, but that does not matter; the other defendants are entitled to challenge the decree of the court below on the point without making defendant No. 7 a party to this appeal. It was really for the plaintiffs who were in the court below, to see that their appeal was properly framed and that all the necessary parties were on the record. 9. It was really for the plaintiffs who were in the court below, to see that their appeal was properly framed and that all the necessary parties were on the record. 9. For these reasons, the decree of the learned Subordinate Judge is set aside and that of the trial court restored, but in the circumstances I do not feel that the defendants should be allowed any costs of the litigation throughout. 10. The position of the defendant third party who is the appellant in Second Appeal No. 108 of 1949, however, stands on a different footing. So far as he is concerned, the trial court very definitely found that there was no collusion on behalf of the landlord in instituting the rent suit against the recorded tenant or in obtaining the decree or even in proceeding to execute the same and getting the disputed lands sold. The plaintiffs, therefore, had no justification for dragging this defendant in the litigation, and the learned Munsif was, therefore, justified in dismissing the suit against him with costs. The learned Subordinate Judge on appeal has not reversed this finding of the learned Munsif so far as defendant third party is concerned. That being so, obviously he should not have decreed the suit with costs even as against this defendant as the decision of the learned Subordinate Judge does not indicate that the defendant third party was exempted from any liability for the costs. On the contrary, the proper decree should have been to dismiss the suit with costs as against this defendant. That is why the plaintiffs have not seriously contested this appeal which should, therefore, be allowed with costs throughout in favour of the defendant third party alone. 11. RAMASWAMI, J. :- I agree. Order accordingly.