Jadunandan Mandal v. Hitlal Mandal — 1968 DIGILAW 105 (PAT)

Judgment U.N.Sinha, J. 1. This appeal has been preferred by the plaintiffs and it has been placed for hearing before me on a difference of opinion between two of the learned Judges of this Court, Ramratna Singh, J. has held that the plaintiffs cannot recover possession of the suit land without redeeming a mortgage of the year 1917, and Anwar Ahmad, J. has held that the suit cannot be defeated on the ground that it was not framed as a suit for redemption. The learned Judges has stated the point of difference thus:- - "As there is difference of opinion, between us regarding a legal question, viz., whether the purchaser of equity of redemption of a usufructuary mortgage can obtain possession of the mortgaged property without redeeming the mortgage or not and the result of the present case depends on that question, it may be placed before the Hon ble the Chief Justice for being heard and decided by another Hon ble Judge." 2. The relevant facts are as follows: The plaintiffs alleged that one Kanchan Mandal, father of defendants 1 and 2, was the occupancy raiyat of Cadastral Survey Khata No. 1485, consisting of Cadastral Survey Plots Nos. 2440 and 2443. He had sold plot no. 2440 to Anuplal Mandal, father of the plaintiffs and plot no. 2443 to one Madhuram Singh by oral transactions. The vendees had come in possession, but the landlord, namely. Raj Darbhanga had instituted a rent suit in 1925 against the present defendants as tenants, as the holding was not transferable without the landlords consent and no consent of the landlord had been obtained for the oral transfers. A decree had been obtained by the landlord in 1926 which was put in execution. In 1928 the holding was sold and it was purchased by Anuplal and Madhuram. The sale was confirmed and Anuplal continued in possession of plot no. 2440. It was alleged that rent had again fallen due and the landlord brought another rent suit in 1929, impleading defendant no. 1 and the purchasers of 1928, This suit was again decreed and was put into execution. It was alleged that no auction purchasers had paid the decretal amount to the Raj Pleader and obtained a receipt from him. 2440. It was alleged that rent had again fallen due and the landlord brought another rent suit in 1929, impleading defendant no. 1 and the purchasers of 1928, This suit was again decreed and was put into execution. It was alleged that no auction purchasers had paid the decretal amount to the Raj Pleader and obtained a receipt from him. But their names were not mutated in the landlords Sherista, because of illegal demands of nazrana by the employees of the Raj and rent used to be paid in the name of Kanchan Mandal. Anup Mandal is said to have died in 1955 and the present plaintiffs contended that they remained in possession of plot no. 2440. It was alleged that during the recent survey and settlement operations Anuplal was recorded as a tenant with respect to plot no. 2440, with a note made in the remarks column as against revisional survey plot no. 6711 that it was in wrongful possession of defendant no. 1. Thereupon an objection was raised by this defendant under Sec.103A of the Bihar Tenancy Act and decision was given in his favour, holding that he was in possession of revisional survey plots nos. 6710 and 6711, corresponding to Cadastral Survey Plot No. 2440. Hence the plaintiffs instituted this suit, after draft publication of revisional survey records. During the pendency of the suit there was final publication and the defendants were shown in the survey record-of-rights to be occupancy raiyats of revisional survey plots nos. 6710 and 6711 of revisional Khata no. 3303. The plaint was accordingly amended and the suit at the time of trial became a suit for a declaration that the entry in the record of rights was incorrect and for a declaration of the plaintiffs title to and confirmation of their possession of the disputed land. In the alternative, the plaintiffs claimed a decree for recovery of possession. There was also a claim for permanent injunction restraining the defendants from interfering with the possession of the plaintiffs. 3. In substance, the defendants case was as follows: The alleged purchase by the predeces-sor-in-interest of the plaintiffs at the auction sale of 1928 was denied. The alleged transactions in execution of the rent suit of 1929 were denied. It was contended that in 1917 Kanchan Mandal had executed a registered Sudbharna bond in respect of plot no. 3. In substance, the defendants case was as follows: The alleged purchase by the predeces-sor-in-interest of the plaintiffs at the auction sale of 1928 was denied. The alleged transactions in execution of the rent suit of 1929 were denied. It was contended that in 1917 Kanchan Mandal had executed a registered Sudbharna bond in respect of plot no. 2440 to one Govind Singh and put him in possession. It was alleged by the defendants that they redeemed this Sudbharna in 1947 and since then they were in possession. The rent suits of 1925 and 1929 were said to be collusive and fraudulent transactions. It was contended that the case under Sec.103A had been rightly decided. They also claimed that even if the plaintiffs had any title, it had been extinguished by lapse of time, as they were never in possession. 4. This suit was decreed by the trial Court and the plaintiffs possession was confirmed and the defendants were restrained from going upon the disputed land; but on appeal, the decree has been set aside and the suit has been dismissed. The conclusions of the court of appeal below on the facts and circumstances of the case have been mentioned seriatim by Ramratna Singh, J. in paragraph 2 of his judgment. The main findings are that Kanchan Mandal had given the disputed land in usufructuary mortgage to Govind Singh on the 15th May, 1917, and the mortgagee was in possession until 1947, when the present defendants had purported to redeem that mortgage. The plaintiffs possession was not accepted all though their title to the disputed land by virtue of the auction purchase in 1928 (not by the alleged earlier oral sale) was accepted. In short, the defendants have been held to have come in possession by the purported redemption of the year 1947. 5. Upon these conclusions of the court of appeal below, Ramratna Singh, J. has held that the defendants had not legally redeemed the mortgage in 1947, although they were in possession since then. The usufructuary mortgage of the year 1917 has thus been held to be an obstacle to the success of the plaintiffs claim for possession in this suit. 5. Upon these conclusions of the court of appeal below, Ramratna Singh, J. has held that the defendants had not legally redeemed the mortgage in 1947, although they were in possession since then. The usufructuary mortgage of the year 1917 has thus been held to be an obstacle to the success of the plaintiffs claim for possession in this suit. His Lordship has distinguished a decision of Kanhaiya Singh, J., in the case of Sarjug Devi V/s. Dulhin Kishori Kuer, AIR 1960 Pat 474 , by citing other decisions in his judgment Anwar Ahmad, 3, has, on the other hand, relied upon Sarjug Devis case, holding, that, the plaintiffs are entitled to a decree for possession, ignoring the purported redemption by the defendants and without impleading Govind Singh, the mortgagee. 6. Sri J.C. Sinha, appearing for the appellants has contended that the principle laid down in Sarjug Devis case should be followed and he has also relied upon the case of Digamber Sridhar V/s. Ramratan Raghunath, AIR 1947 Bom 471, wherein a decision of the Privy Council reported in (1905) ILR 32 Cal 296, Khiarajmal V/s. Daim has been referred to. Sri Shreenath Singh appearing for the respondents has contended that Ramratna Singh, J. has rightly distinguished Sarjug Devis case, AIR 1960 Pat 474 and that on two other decisions referred to by Ramratna Singh, J., namely, the cases of Binanand Sawase V/s. Thuroo Mahto, AIR 1923 Pat 592, and Dubraj Mahto V/s. Lalji Sahai, AIR 1929 Pat 639, the plaintiffs suit for possession in the absence of Govind Singh is bound to fail, on the assumption that the Sudbharna mortgage of 1917 was still outstanding. Having heard the learned counsel for the parties I am of the opinion that the principle enunciated by Kanhaiya Singh, J. in Sarjug Devis case, AIR 1960 Pat 474 should be followed, even if the original mortgagee namely, Govind Singh is not a party to this litigation. According to Sri Shreenath Singh, there is another distinction between the instant case and Sarjug Devis case and it is this that the plaintiffs case of dispossession has been negatived. But, in my opinion this distinction will not make any difference in the facts of this case, as the defendants have contended in this suit that they were put in possession by Govind Singh, after a purported redemption. But, in my opinion this distinction will not make any difference in the facts of this case, as the defendants have contended in this suit that they were put in possession by Govind Singh, after a purported redemption. According to the defendants, the mortgage bond had also been made over to them in 1947 by Govind Singh on this purported redemption. The fact that the plaintiffs had never come in actual possession can also make no difference, as the case of the defendants before the Revenue authorities as also in this suit have consistently been a denial of the right of the plaintiffs as holders of the equity of redemption. It is clear from Exhibit E, the order under Sec.103A of the Bihar Tenancy Act, that, the defendants had claimed to be tenants in possession by virtue of redemption of the usufructuary mortgage of the year 1917. The plaintiffs title by auction sale was challenged, but of course, the question of title was left open by the Revenue authorities, in my opinion, there was no other alternative for the plaintiffs than to institute this suit for confirmation or recovery of possession as against the defendants. In my opinion, neither the decision reported in AIR 1923 Pat 592, nor the one reported in AIR 1929 Pat 639 negatives this conclusion. Both these decisions have been considered by the Bombay High Court in the case reported in AIR 1947 Bom 471 and the true criterion has been laid down therein. It has been stated that if the true owner of a property is not in possession, and his mortgagee is, the possession of another person following that of the mortgagee cannot be presumed to be without any right. He may be an assignee of the mortgagee or he may be an adverse claimant to the mortgagees right. But, in the instant case, the defendants have always been claiming as being in possession not only of the mortgagees right but also that of the mortgagor. That is to say, the defendants claim to be in possession adverse to the mortgagor and this the holders of the equity of redemption came to know in the proceeding before the Revenue authorities. Therefore, there was no alternative for them than to institute this suit against the present defendants for appropriate reliefs. That is to say, the defendants claim to be in possession adverse to the mortgagor and this the holders of the equity of redemption came to know in the proceeding before the Revenue authorities. Therefore, there was no alternative for them than to institute this suit against the present defendants for appropriate reliefs. In my opinion, the principle laid down in the case of Taru-bai V/s. Venkatarao, (1902) ILR 27 Bom 43, and followed by Kanhaiya Singh J. in Sarjug Devis case is fully applicable to the instant case. The defendants claim of the ouster of the present plaintiffs as holders of the equity of redemption has certainly made it incumbent upon the plaintiffs to institute this suit, as was stated in Tarubais case. Having given due consideration to the contentions of the learned counsel for the parties arising on the difference of opinion enumerated by the learned Judges of this Court in this case, I am of the opinion that the plaintiffs being purchasers of the equity of redemption of the usufructuary mortgage are entitled to obtain possession of the mortgaged property as against the defendants, without redeeming the mortgage in favour of Govind Singh of the year 1917, on the other facts established in this case. 7. Although I have held that the plaintiffs are entitled to obtain possession of the disputed property. The decree of the trial court cannot be affirmed, because the court of appeal below has come to the finding of fact that the plaintiffs had never come in actual possession and that the defendants were in possession since 1947. I am of the opinion, that, there is no bar to allowing the alternative prayer of the plaintiffs for recovery of possession. The appeal is, therefore, allowed and the plaintiffs suit decreed for recovery of possession of the disputed property. According to the views of both the learned Judges of this Court, the parties will bear their own costs throughout.