Sheonandan Prasad Sao v. Ugrah Sao — 1953 DIGILAW 153 (PAT)

Judgment Misra, J. 1. This is an appeal by defendant 13, Sheonandan Prasad Sao? purchaser of plot No. 1904 of Khata No. .175, in village Masaurhi Bazar, in the district of Patna. There stands a gola with parti land attached to it on this land which was originally recorded in the name of Gobardhan Sao, father of one Rangi Sao, and the plaintiff Shyamlal Sao. A suit was instituted by Bipat Singh, father of defendants 1 and 2, and Raja Singh, father of defendant 5, as. well as defendants 1 to 4 for contribution against the plaintiff, Shyamlal Sao, and his brother Rangi Sao, in the first court of Munsif at Patna. It was numbered as Money Suit No. 162 of 1925. It was decreed against all the defendants. An appeal preferred against that decree was allowed by the first appellate court, but in second appeal the High Court held that Rangi Sao was not liable to contribution, but the plaintiff Shyamlal Sao was in fact liable, and the suit was thus decreed in a modified manner. The decree-holders started execution case No. 334/30 to enforce their claim under the decree by attachment and sale of the sixteen annas interest in the gola house together with the parti land on plot No. 1904, the subject-matter of the present suit. An objection was made by Rangi Sao in the execution proceeding which gave rise to miscellaneous case No. 140 of 1930, and by order dated 81-1-1931, the executing Court held that only the right, title and interest of Shyamlal Sao, the plaintiff, in the gola was liable to be sold which was a moiety in the property, but the remaining interest belonging to Rangi Sao could not be put-to sale. The sale proclamation issued in the execution proceeding also mentioned only the right, title and interest of Shyamlal Sao, the plaintiff, as being advertised for sale. The property was sold on 11-7-1931 for rupees one thousand and purchased by defendants 1 to 12. Plaintiffs case further is that he discovered subsequently that the decree-holders, who were also the auction purchasers, managed to get the sale certificate incorrectly prepared in a fraudulent manner referring to the entire sixteen annas interest in the property as having been sold at the auction and purchased by the decree-holders. Plaintiffs case further is that he discovered subsequently that the decree-holders, who were also the auction purchasers, managed to get the sale certificate incorrectly prepared in a fraudulent manner referring to the entire sixteen annas interest in the property as having been sold at the auction and purchased by the decree-holders. There was also a symbolical delivery of possession obtained, but in fact Rangi Sao and the plaintiff remained in possession of the same. Rangi Sao, however, died leaving behind a daughter and the plaintiff was in possession of the property up to the date of the institution of the suit, plaintiff also stated that Rangi Sao and he himself executed a number of ijara deeds evidenced by Ext. P series from 1920 onwards and when defendants 1 to 12 acquired their interest in the property at the auction sale it was subject to the payment of the ijara money to the various mortgagees who held possession over portions of the property individually, but collectively were in possession of the entire house. It is alleged further that plaintiff had a cause of action as he learnt on 28-5-1945 about the fraudulent sale and dakhaldehani of the entire sixteen annas interest by defendants 1 to 12 when in fact they were entitled to remain in possession only of half of gola house on plot No. 1904. He prayed for confirmation of possession of the eight annas interest in the property and, in the alternative, recovery of possession on adjudication of the facts stated by him in the plaint. 2. Defendant 13 pleaded in bar that the suit was liable to be dismissed, because he was a bona fide purchaser for. a sum of rupees five thousand of the suit property under Ext. B dated 23-8-1941, from defendants 1 to 12. They held sixteen annas interest under the sale certificate (Ext. G) dated 10-12-1931 and were also in possession of the entire house since 11-8-1932, as shown by Ext. H. Out of the consideration of rupees five thousand, the plaintiff retained a sum of Rs. 3850.00 with him to pay to the various ijaradars and handed over the balance to the purchaser. Since defendants 1 to 12 were duly in possession and also held the sale certificate, defendant 13 acquired a good title to the house in question under the sale deed executed in his favour. 3850.00 with him to pay to the various ijaradars and handed over the balance to the purchaser. Since defendants 1 to 12 were duly in possession and also held the sale certificate, defendant 13 acquired a good title to the house in question under the sale deed executed in his favour. He pleaded that he was in possession of the house after having redeemed the various ijara deeds on 18-5-1942. The plaintiff, therefore, had no right to any portion of the suit property. 3. The learned Munsif of Patna, who tried the suit, held that the plaintiff was not entitled to recover possession of the house standing on plot No. 1904 as the house was in possession of the ijaradars who had mortgage bonds executed by Shyamlal Sao and his brother Rangi Sao. The ijara money was paid by the appellant Sheonandan Prasad Sao. who was entitled to eight annas interest in the suit property as a purchaser from defendants 1 to 12. The latter acquired eight annas interest in the property at the auction sale in 1931. Accordingly the appellant was entitled to redeem the ijara deeds of the mortgagees in possession and was entitled to retain possession of the entire gola by virtue of his right as a subrogee. The learned Munsif disallowed the claim of the defendants to hold the entire sixteen annas interest, as, in his opinion, what was acquired by defendants 1 to 12 at the auction sale in 1931 was only the moiety interest of plaintiff Shyamlal Sao, and not the entire sixteen annas interest. Accordingly, he held that the plaintiff was entitled to a declaration that he had a right to the share of his brother Rangi Sao which was exempted from sale as mentioned above. Since, however, he had not made a prayer for redemption of the interest of Rangi Sao on payment of the proportionate amount of mortgage money he was not entitled to khas possession of the house. He allowed, however, the plaintiff to recover possession of the parti portion of plot No. 1904 because in his opinion this was independent of the house which alone was mortgaged under Ext. P series, and to which alone defendant 13 can claim the right of subrogation. He allowed, however, the plaintiff to recover possession of the parti portion of plot No. 1904 because in his opinion this was independent of the house which alone was mortgaged under Ext. P series, and to which alone defendant 13 can claim the right of subrogation. Sheonandan Prasad Sao preferred an appeal against the judgment of the learned Munsif & the learned Additional Subordinate Judge of patna Who heard the appeal also affirmed the findings of the learned Munsif with this modification that the plaintiff could not be held entitled to the entire parti portion of the house but only to the extent of half of it. Since, however, there was no prayer for partition the plaintiff was entitled to joint possession of the. parti land to the extent of his eight annas interest along with defendant 13, Sheonandan Prasad Sao. But he affirmed, as I have said above, the declaration made in favour of the plaintiff by the learned Munsif that he was entitled to eight annas interest in the property as a survivor after the death of his brother Rangi Sao. The present appeal is directed against the judgment and decree of the learned Subordinate Judge. 4 The first point urged in support of the appeal by Sir Sultan Ahmad is that the Courts below erred in holding that the plaintiff was entitled to possession of the parti land which was independent of the house called the gola. According to the learned Counsel, the parti land was used for keeping carts and bullocks Which came to the gola from time to time either to deliver the grains or to carry the grains of the purchasers. It was, therefore, incorrect to say that what was mortgaged to the ijaradars was only, the house and not the parti land. He contends that the Courts below had not directed their attention to this aspect of the matter while considering the question of the subject-matter of the various ijaras. It appears that the Courts below have taken it for granted that since reference under the various ijara deeds (Ext. F series) is only to the house, it necessarily excluded the parti portion of the land. But the learned Counsel has drawn my attention to the plaint wherein the house has been described as "eight annas share out of sixteen annas share in the gola (house) with parti land". F series) is only to the house, it necessarily excluded the parti portion of the land. But the learned Counsel has drawn my attention to the plaint wherein the house has been described as "eight annas share out of sixteen annas share in the gola (house) with parti land". In the "N. B." attached to Schedule A, it is stated "Be it known that 8 annas share in the said gola with proportionate share in the parti land attached to the said gola was sold in execution case No. 334 of 1930.....". Even the amendment petition filed by the plaintiff refers to the gola with the parti land appertaining to it. It is thus clear that whenever the plaintiff has referred to the gola house refers also to the parti land as an. appurtenance to the house. The area of the parti land is stated to be about half the total area of plot No. 1904, so that it is clear that this land was never treated as independent of the house. It is still more so when it is borne in mind that the house in question has been used for a purpose which would imply that the parti land attached to the house was used for the proper transaction of the business for which the house was being used, namely, gola. It appears from this that Sir Sultan Ahmads contention that the Courts below were wrong in treating the parti land as independent of the house must prevail. The learned Subordinate Judge, on appeal, also affirmed the finding of the learned Munsif with regard to the parti land although with some modification but did not turn his attention to a consideration as to whether, in the circumstances of the case, it could be held that the land as "an appurtenance could or could not be considered as a part of the house. Whartons Law Lexicon gives the meaning of word "appurtenance" as follows : "belonging to another thing, as hamlets to a manor, and common of pasture, turbary etc.; out-houses, yards, orchards, and gardens are appurtenant to a messuage, but lands cannot properly be said to be appurtenant to a messuage". Whartons Law Lexicon gives the meaning of word "appurtenance" as follows : "belonging to another thing, as hamlets to a manor, and common of pasture, turbary etc.; out-houses, yards, orchards, and gardens are appurtenant to a messuage, but lands cannot properly be said to be appurtenant to a messuage". It must thus be held that the view of the Courts below with regard to the parti land is incorrect and the proper order to be passed in respect of the parti land as well would be" that it should be treated as a part of the ijara property and the plaintiff was held entitled to redeem eight annas interest in the ijara. He could get possession of the parti land only on redemption of that interest and was not entitled to claim, possession over it independent of his application to pay up the ijara money. 5. The next contention urged for the appellant is that the Courts below should have held that plaintiff was not entitled to claim even eight annas interest in the property as defendant 13 who was a purchaser from defendants 1 to 12 acquired interest in the entire property as their sale certificate would show. The sale certificate was the document of title of the appellants vendors upon which he could rely to support his own title to the entire sixteen annas interest in the property. Learned Counsel develops his argument with reference to Sec. 41, T. P. Act, as his clients Vendors were the ostensible owners of the pro-perty as the sale certificate would show. The appellant was a purchaser for valuable consideration and his vendors had remained in posses-sion from 1932 to 1941 when he purchased under Ext. B during which time they had paid rent for the land and had also made certain improvement as also repaired the house. In such a situation plaintiff could rely upon the possession of his vendors who had all the indicia of ownership with the acquiescence of Rangi Sao or his heir. He referred in this connection to the case of Ramabhadra Naidu V/s. Kadirlyasami Naicker, AIR 1922 PC 252 (A), wherein their Lordships of the -Judicial Committee held that where a sale certificate was unambiguous it was conclu-sive and one could not refer to the pleadings, the judgment or any other document to retract from the plain words used in the sate certificate. It must, however, be held that this authority is of no assistance in the present case, because the question is not that the sale certificate does not refer to the sixteen annas interest but that it does not effect the interest of Rangi Sao whose objection to the sale of his share in the execution proceeding was allowed by the executing Court. The sale certificate, therefore, purported to affect the property of a person who was not a judgment-debtor, and as such its unambiguous character would be of no effect against a person who was not a judgment-debtor at all, against whom the sale certificate would be held to be conclusive. The next case relied upon by Sir Sultan Ahmad is the case of --Gowree Kumul V/s. Surut Chunder, 22 Suth WR 408 (B), which apparently seems to support the argument advanced by learned Counsel in favour of the appellant. That was a case in which a Division Bench of the Calcutta High Court observed that a purchase made by a person relying upon the entry in the sale certificate was valid, and any defect in the title of the holder of the sale certificate would not vitiate in any manner the title acquired by a bona fide purchaser. But an analysis of the facts of the case would Indicate that the person who challenged the title of the purchaser from the auction purchaser was the judgment-debtor himself against whom their Lordships held that it was not open to him to raise that objection. In the present case, as I have said above, the objection is being made by a person in a capacity in which he is in no manner bound by the decree which led to the. sale and a stranger, therefore, who is dispossessed from a property or in respect of whose property a sale certificate has been obtained, cannot be bound by such a document. sale and a stranger, therefore, who is dispossessed from a property or in respect of whose property a sale certificate has been obtained, cannot be bound by such a document. His Tights will be governed by the ordinary law and if he is actually dispossessed he has to bring a suit within 12 years as he would have to do in case of dispossession by any one either on foot of a sale certificate or otherwise, and if he is not dispossessed the mere fact that somebody obtained a sale certificate in respect of his property on foot of a decree to which he is not a party will be of no avail whatsoever against him. The next decision referred to by the learned Counsel is the case of --Ramcoomar Koondoo V/s. John and Mania McQueen, 18 Suth. WR 166 (PC) (C), bearing upon the question of benami purchase at a Court sale. This, in my opinion, is not relevant to the point for consideration in the present appeal. With regard to ostensible ownership, it must be stated here that the point was not specifically raised in the written statement by the appellant nor was it pressed before the learned Munsif, nor was an issue framed thereon. Mr. Nawal Kishore Prasad I, who appears with Sir Sultan Ahmad, however, has stated to me that he argued the appeal before the learned Subordinate Judge and had. pointedly raised the question although "it finds no mention in his judgment. I think, in view of the failure on the part or defendant 13 to plead his right as purchaser from an ostensible owner and to have an issue framed thereon is fatal to the present contention raised. The relevant facts necessary to support such an argument are not before this Court and it will not be fair at this stage to allow such a contention to be raised. On merits, too, this contention would fail for another reason, because Section 41, T. P. Act, con-templates possession of the vendor who conveys his interest to an innocent purchaser. In the present case, it is obvious that all that defen-dants 1 to 12 got by virtue of the auction safe was only a right to obtain khas possession, and what was delivered to them on 11-8-1932 was merely symbolical possession. In the present case, it is obvious that all that defen-dants 1 to 12 got by virtue of the auction safe was only a right to obtain khas possession, and what was delivered to them on 11-8-1932 was merely symbolical possession. As it is admitted that the property on that date was in ijara to a number of ijaradars and it was not till 18-5-1932 that defendant 13, after purchasing the property from defendants 1 to 12, paid up the ijara money and came into khas possession. In the absence of khas possession, of "defendants 1 to 12, I am afraid, the contention with regard to ostensible ownership which is based on an equitable view cannot be accepted. Sir Sultan Ahmad, however, contends that in view of a term in the ijara deed that rent was payable by the mortgagor, and in fact it was defendants 1 to 12 who paid rent and also carried out repairs of the house, the appellant was entitled to rely upon this fact of actual possession of defendants 1 to 12, and he could not be put on enquiry to find out whether anybody else was interested in the property or not. I am not prepared to stretch the doctrine of ostensible ownership in the manner contended for, and more so because this point was not raised, as I have said, in the written statement filed by the appellant. This contention, accordingly, fails. 6. It is next urged that the acts referred to above, namely, payment of rent by defendants 1 to 13 from 1932 to 1941 and for the subsequent period" up to 1945 by defendant No. 13, constituted adverse possession by the appellant and his vendors, so that the plaintiff was not entitled to -recover possession of the property after having allowed defendants 1 to 12 to deal with it as their own for a period of more than 12 years. The Courts below negatived the argument on the ground of adverse possession as in their view defendants 1 to 12 and likewise defendant 13 remained in possession of the eight annas interest as a co-sharer, and, therefore, there could be no extinguishment of title of a co-sharer by the mere fact that some other co-sharer of hiss has been in possession. They held, accordingly that plaintiffs right was not barred. They held, accordingly that plaintiffs right was not barred. The difficulty in the way of the appellant, however, on the ground of adverse possession is that it was the ijaradars who were in actual possession of the land during the period under consideration, and it cannot be held, in the circumstances, that a co-sharer who paid rent or carried out repairs had any other right than that of contribution from the plaintiff or his brother Rangi Sao during his lifetime. In my opinion, therefore, the Courts below took the correct view in the matter and rightly overruled the contention on behalf of the appellant that he and his vendors had in any case acquired title by adverse possession over the property in suit. 7. It is next urged that the plaintiffs suit must fail on the ground that he had no locus standi to claim the share of his brother Rangi Sao as according to his own case Rangi Sao died leaving behind a daughter who is alive and who has, therefore, the preferential right to the property as against the plaintiff. The share of the plaintiff, Shyamlal Sao, was sold in execution of a decreeobtained against him by defendants 1 to 12, and it is urged that from the date of the auction sale Shyamlal ceased to have the rights of a member of the joint family, when his share in the property was sold. Reliance is placed for the proposition on a decision in the case of -- Deorao V/s. Asaram Gannu-lal, AIR 1936 Nag 203 (D), where a Division Bench expressed the opinion that the alienating coparceners interest become theoretically severed from the date of transfer, and as such he should not be regarded as having any interest left in the property which is recovered by the joint family after contest, as if he were a member of the Joint family. It is said, therefore, that in the present case as well Shyamlal Sao should be deemed to be a separate member in respect of the gola house in the suit, and the person who is entitled to the share of Rangi Sao after his death is his daughter and not the plaintiff, Shyamlal Sao, who claims the share by virtue of survivorship. Reference is also made in support of this proposition to a single Judge decision of the Madras High Court in the case of -- Lakshmanna Chet-tiar V/s. Srinivasa lyengar1, AIR 1937 Mad 131 (E), wherein it was held that a coparcener who alienated the whole or part of his undivided share will continue to be a member of the joint family with the rights of survivorship between himself and the remaining members in respect ef the family property other than what he has. transferred. Learned Counsel for the respondents, however, relies upon a decision of the Madras High Court In the case of -- Chimalakonda Ramasubbaraya Sastri V/s. Ganapathiraju Venkata Appalanarasim-haraju, AIR 1940 Mad 217 (F), wherein it was held that an alienating coparcener continues undivided even in respect of the share of the other members in the property alienated, so that on the death of any member he will succeed to his share by survivorship with the other members. Their Lordships have observed as follows : "If the correct principle is that alienation per se by a member of his share or part thereof in joint family property does not operate as a severance in status in respect of the property alienated the mere recovery of their shares by the other members would not alter the status of the family. It would therefore rest on them to signify their intention unequivocally to hold the said shares separate from the alienor. In the absence of such expression of intention, the presumption would be that they intend to hold the shares as joint family property. And the same legal consequences do not therefore follow from a suit by a plaintiff to set aside an alienation by his coparcener of a certain item of property as not being binding on him and to recover the plaintiffs share therein as would follow from a suit for partition without more." It would appear that the observation made in AIR 1936 Nag 203 (D), is not in accord with the view of law expressed in AIR 1940 Mad 217 (F), and it would also appear that even in the Madras High Court there .is certain amount of difference of opinion on the question. There is a decision in the case of -- Lakshmi Achi V/s. Narayanasami Naicker, AIR 1930 Mad 51 (G), wherein an opinion was expressed that an alienating coparcener must be regarded as separate from other co-members of the family in so far as the property which he has disposed of is concerned. The difference in the Madras High Court turns upon the view of law expressed by Bhashyana Ayyangar J., in the case of -- Aiyyagari Venkata-ramayya V/s. Aiyyagari Ramayya, 25 Mad 690 (PB) (H), which runs to the following effect: "An undivided member of a family, though he may alienate either the whole, or any part ef his undivided share will continue to be an undivided member of the family with rights of survivorship between himself and the remaining members in respect of all the family property other than what he has transferred." It is the last portion of the observation with regard to the jointness in respect of the family properties other than what has been transferres, which has been differently interpreted by the different Judges of the Madras High Court. But the better opinion seems to be based upon a consideration of the reasoning of Bhashyam Ayyangar J., in 25 Mad 690 (FB) (H), that the mere fact that there has been a sale of his share by a certain coparcener in a Hindu joint family would not indicate severance of status which was to be gathered from an unequivocal expression of intention to divide. In Madras and Bombay a coparcener can as well alienate his share in the joint family property either in whole or in part without thereby necessarily bringing about a disruption of his status as member of the joint family. It was in this view of the matter that Bhashyam Ayyangar J., held that the mere fact of alienation would not terminate the status of the coparcenary as such and in that view even the alienating coparcener would be entitled to the benefit of the right of survivorship as any other member of the joint family. Similar view was taken in the case of --Kandaswami Udayan V/s. Velayutha Udayan, AIR 1926 Mad 774 (I), to which a reference is made in the ,above Madras Case reported in AIR 1940 Mad 217 (F). Similar view was taken in the case of --Kandaswami Udayan V/s. Velayutha Udayan, AIR 1926 Mad 774 (I), to which a reference is made in the ,above Madras Case reported in AIR 1940 Mad 217 (F). I would, therefore, prefer to follow the view of law taken in AIR 1940 Mad 217 (F), as it appears to me that it is more in consonance with the principle of coparcenary as propounded in Mitakshara and was so elaborately considered by Bhashyam Ayyangar J., in 25 Mad 690 (FB) (H). Moreover, the decisions referred to by learned Counsel for the parties refer to the effect of facts of a suit by the non-alienating coparceners tc recover the joint family property. The present. however, is not one where Rangi Sao instituted the suit for declaration or recovery of possession of his share in the property. The present case is one of involuntary alienatoin of the share of Shyamlal Sao at the instance of a decree-holder, and as was held in the case of -- Gurlingapa Sat-wirapa V/s. Nandapa Chanbasapa, 21 Bom. 797 (J), that the only interest acquired by the auction purchaser was to proceed to work out his rights by partition, and so long as there was no suit for partition on the mere fact that the auction purchaser acquired the interest of a member of the joint family it cannot be urged that there was any definement of shares. In the present case, admittedly, there has been no suit for partition by the auction purchaser of Shyamlals share. If anything, the case made out on behalf of the auction purchasers is that they acquired the entire sixteen annas interest in the property so that either the purchase was good in its entirety or, in any case, it did not nave the effect of denning the shares either of Shyamlal or Rangi. On facts, therefore, the present case is distinguishable from all the cases to which reference has been made at the bar. Moreover, it seems to me that there is substance in the contention of learned Counsel for the respondents that the right of Shyamlal Sao to claim the share of Rangi by survivorship was not challenged in the Courts below and it will not be fair to permit the appellant to agitate the question in second appeal. Moreover, it seems to me that there is substance in the contention of learned Counsel for the respondents that the right of Shyamlal Sao to claim the share of Rangi by survivorship was not challenged in the Courts below and it will not be fair to permit the appellant to agitate the question in second appeal. He says further that there is no denial either in the written statement or averment in the plaint that plaintiff succeeded to the property of Rangi Sao by virtue of survivorship. Taking all the circumstances into consideration and the fact that the point has been raised for the first time in second appeal, I must bold that this contention of Sir Sultan Ahmad cannot succeed. 8. It is next contended that the suit of the plaintiff is fit to be dismissed because according to the relief granted to him the suit is one of a purely declaratory character when plaintiff could have prayed for the relief of possession as well. That not having been done, Sec. 42, Specific Belief Act, operates as a bar in the way of a purely declaratory relief being granted to the plaintiff. Reference has been made in support of this contention to the case of -- Ram Dour Rai V/s. Harnam Das, AIR 1917 Pat 62 (K). That was a case where a mortgagor instituted a suit for declaration that the act of the mortgagee in having his name recorded as the full owner of the property as a tenant in landlords serishta was illegal and that the Court should declare that the mortgagee had not acquired the light of a full owner in respect of the land. There was also a prayer that it should be declared that the plaintiff-mortgagor had a right to redeem the property. A Division Bench of this Court held that the plaintiff was entitled to the declaration in respect of the tenancy right set up by the mortgagee as indicated by his act In getting bis name recorded as a raiyat in the landlords serishta, but he was not entitled to this second relief that the plaintiff had a right to redeem the property. In my opinion, the decision does not support the argument on behalf of the appellant. In my opinion, the decision does not support the argument on behalf of the appellant. It is no doubt true that the declaration was not given to the mortgagor that he was entitled to redeem for the obvious reason that such a declaration was purely superfluous unless the plaintiff-mortgagor wanted to redeem the property on payment of the mortgage amount. His right to redeem was inherent in his status as a mortgagor and the Court, therefore, could not give a declaration of a purely theoretical character. but the relief asked for by the plaintiff that the defendants act in getting his name recorded as a raiyat was illegal was allowed. In the present case the suit was framed for declaration and recovery of possession although possession could not be granted because defendant 13 in the meantime redeemed the ijara deeds and was in possession in his right as a subrogee in place of the original mortgagees, but it could not be said that the frame of the suit was such that Sec. 42, Specific Relief Act, could stand in his way in any manner. He is entitled, therefore, to the relief asked for. 9. Lastly, it is contended that that part of the order of the Courts below, which states that the plaintiff is entitled to the property on payment of the ijara money, is beyond jurisdiction, because the plaintiffs suit is not a redemption suit. It is a suit for declaration of title and recovery of possession, pure and simple, in which the existence of the ijaras was set up by the defendants against the plaintiffs right to recover possession. It is, therefore, not open to the Courts below to make any observation as to whether the plaintiff would be entitled to get back the property on. redemption in a suit properly constituted for that purpose. I think, this contention of learned Counsel must be accepted. The nature of the suit is sucb that the Courts below were not right in passing any order which would be appropriate only in a suit for redemption. It is difficult to say what pleas win be raised by the defendants in the suit for redemption and it will be unfair to prejudge that question in the present action. The nature of the suit is sucb that the Courts below were not right in passing any order which would be appropriate only in a suit for redemption. It is difficult to say what pleas win be raised by the defendants in the suit for redemption and it will be unfair to prejudge that question in the present action. With this modification, therefore, it must be held that the appeal fails excepting in respect of the parti land which also cannot be recovered by the plaintiff in the present suit. The plaintiff must bring a regular action for redemption of the property as a whole, and it is only on payment of the proper sum equivalent to the ijara deeds that he will be entitled to get into possession of plot No. 1904 along with the house standing thereon. There will be no order as to costs, in the circumstances of the case, as there has been success for the appellant as well in respect of the parti portion of the land.