JUDGMENT : S.K. Ray, J. - This is a Defendant-1's second appeal from the reversing judgment dated 4-9-1964 of Sri S.N. Misra, 3rd Additional subordinate judge, passed in Title Appeal No. 108/61 of 1963-64 decreeing the Plaintiff's suit. 2. Plaintiff filed the suit for declaration that the decree passed in mortgage-suit No. O.S. 35 of 1943 is fraudulent, and for a declaration that the sale of the disputed property held on 16-4-1956 in execution case No. 73/49 (proceeding for executing the mortgage-decree) is void and illegal, and for a permanent injunction restraining Defendant-1 not to proceed further in execution. 3. It is necessary to set out the history of the Plaintiff's The father of the Plaintiff (Narasing Sahu) purchased the case. Dar-pattadari right in plot No. 510 appertaining to Dar-pattadari Khata No. 675 (old) in Pattadari Khata No. 672 (old) corresponding respectively to Dar-pattadari Khata No. 476 (new) under Pattadari Khata No. 477 (new) with an area of 042 decimals in the year 1916. This purchase was without Khasmabal's permission. During the settlement of 1932, this purchase of Dar-pattadari interest by Narasing Sahu was recognised by Khasmahal authority on the former paying penalty. Thus, Narasingh Sahu was recognized as Dar-pattadari under the Pattadars, Chaitan Sahu and Anadi Sahu, fathers of Defendants 2 and 3. The Pattadari interest of Chaitan Sahu and Anadi Sahu was comprised in Khata No. 672 (old) corresponding to 476 (new) bearing Zimabandi No. 15. The Dar-pattadari interest is described in Schedule A of the plaint and the Pattadari interest is described in Schedule B thereof. This recognition of Narasingh Sahu's Dar-pattadari interest by Khasmabal was made on 16-8-1932. On 10-11-1934, Chaitan and Anadi mortgaged their Pattadari interest in the suit-holding along with other properties to Defendant-1 for a consideration of Rs. 420/-. On 4-6-1936 the Plaintiff purchased from Chaitan and Anadi their Pattadari interest in Schedule B, properties under a registered sale-deed, ext. a, which was executed on 4-6-1936 and registered on a-6-1936 for consideration, after getting permission for such alienation from Khasmabal authority. Plaintiff's father, Narasingh, died in about 1943. The Plaintiff and his brother succeeded to the Dar-pattadari interest purchased by their father. They remained joint owners thereof till 1952 when his brother surrendered his Dar-pattadari interest in favour of the Plaintiff thereby making the latter the sole owner of that interest which has been described in Schedule A of the plaint. Plaintiff's father, Narasingh, died in about 1943. The Plaintiff and his brother succeeded to the Dar-pattadari interest purchased by their father. They remained joint owners thereof till 1952 when his brother surrendered his Dar-pattadari interest in favour of the Plaintiff thereby making the latter the sole owner of that interest which has been described in Schedule A of the plaint. In the Khasmahal settlement of 1949, the disputed Dar-pattadari Khata and plot were recorded in the name of the Plaintiff and his elder brother Prahallad. Defendant-I sued upon his mortgage and obtained a preliminary decree on 2-3-1945 (Ext. 3), and a final decree (ext. 1) was passed thereon. The mortgage-suit was numbered O.S. 35/43 in the Court of the subordinate judge. The Plaintiff was impleading that mortgage suit as Defendant-7. He had filed a written statement in that mortgage suit and contested it. The mortgage-decree, it is alleged by Defendant No. 1 included the Dar-pattadari plot No. 510 with houses thereon. In execution of the mortgage-decree in execution case No. 73 of 1949, the mortgagee became the auction-purchaser and purchased the property in Court-sale. In course of trial of the mortgage suit, there was no controversy about the Dar-pattadari interest not being an item of property mortgaged, and the Plaintiffas Defendant No. 7 contested the suit challenging the genuineness of the mortgage, and leading that as he had originally Sikim rights, and had subsequently purchased the tenancy right from the mortgagor he may be allowed to redeem plot No. 510 on payment of proportionate share of mortgage-money. The second ground of contest of this Plaintiff there was that Schedule B property having been released by the mortgagee, the mortgage was no longer indivisible. This prayer for partial redemption was rejected by the subordinate judge on 15-2-1945. The judgment passed in the mortgage-suit is ext. 2. Thereafter the subordinate judge passed a preliminary decree on 2-3-1945 (Ext. 3). Final mortgage-decree followed (Ext. 1). In execution of the said decree (execution case No. 73 of 1949) the mortgagee-Defendant-1 purchased the mortgaged-property including the Darpattadari plot with the houses thereon. During the course of execution, the present Plaintiff filed an application u/s 47, CPC raising a dispute as to the saleable character of the Dar-pattadari interest comprised in plot No. 510. This was rejected by the executing Court. Ultimately the sale was confirmed in favour of Defendant-1. He thereupon filed the present suit. During the course of execution, the present Plaintiff filed an application u/s 47, CPC raising a dispute as to the saleable character of the Dar-pattadari interest comprised in plot No. 510. This was rejected by the executing Court. Ultimately the sale was confirmed in favour of Defendant-1. He thereupon filed the present suit. 4. The main contentions of the Plaintiff as appears from his pleading and evidence is that the mortgage-decree was obtained fraudulently and that the Dar-pattapari interest and the Pattadari interest being distinct and separate, and the mortgagor being in possession of the Pattadari interest alone at the time of mortgage, be must be held to have mortgaged only the Pattadari interest irrespective of how the properties in the mortgage-deed were described, that by the date of institution of the mortgage suit, the two interests, viz., the Pattadari interest and the Dar-pattadari interest remained still distinct and separate irrespective of the fact that the Plaintiff has purchased the mortgagors right in 1936, that there was no distinct issue, as to whether the mortgaged-property included the Dar-pattadari interest, in the mortgage-suit, that the Plaintiff as Defendant-7 in the mortgage suit only prayed for a partial redemption of plot No. 510 in respect of which both the Pattadari interest and the Dar-pattadari interest had vested in him, and that such a pleating in the mortgage-suit was not by way of putting directly in issue the question whether the Dar-pattadari interest was the subject-matter of the mortgage or not, but by way of giving a reason for being permitted to obtain a partial redemption. 5. Defendant-1 who contested the suit averred in his written statement that: (a) the inputted Dar-pattadari plot No. 510 with houses standing thereon was the subject-matter of the mortgage-bond (ext. 13) and consequently was included in the preliminary and final mortgage-decrees, and as such in execution of the mortgage-decree, Defendant-1 has purchased the same; (h) that the Plaintiff being a party to the mortgage-suit as Defendant-7 is bound by the decree and that his present plea are barred by the principles of constructive res-judicata. Plaintiff's allegation that the mortgage-decree was obtained fraudulently was without any basis; (c) the Plaintiff having prayed for partial redemption would be deemed to have admitted the saleable character of Darpattadari interest under the mortgages, and cannot challenge the mortgage decree for sale. Plaintiff's allegation that the mortgage-decree was obtained fraudulently was without any basis; (c) the Plaintiff having prayed for partial redemption would be deemed to have admitted the saleable character of Darpattadari interest under the mortgages, and cannot challenge the mortgage decree for sale. (d) The Plaintiff also having filed an application u/s 47, CPC, before the executing Court, raised the dispute as to the saleable character of the Dar-pattadari plot No. 510, and the same having been dismissed, the present suit is not maintainable in law. 6. The Munsif dismissed the suit finding that the mortgage-decree was neither fraudulent nor illegal, that the present suit is barred by constructive res judicata u/s 11, Code of Civil Procedure, that the Pattadars who sold their interest to the Plaintiff under Ext. a were in possession of the houses and structures standing thereon, and therefore, these properties, viz., these houses and structures on plot No. 510 were the subject-matter of the mortgage, and the Dar-pattadari interest, if any, in that plot was notionally an interest, apart from the houses and structures standing on that plot; that the Plaintiff by his purchase of Pattadari interest in 1936 under Ext. a united in himself both the interests in the property, viz., the Pattadari interest and the Dar-pattadari interest, thereby terminating the Dar-pattadari interest u/s III of the Transfer of Property Act. So this Dar-pattadari interest can be regarded as an accession to the mortgaged-property u/s 70 of the T.P. Act, and thus the subject of the mortgage-suit, and has been property sold in execution of the mortgage-decree. 7. On appeal the decision has been revised. The appellate Court concurred with the trial Court that the mortgage decree cannot be said to have been fraudulently obtained though there is an air of suspicion about it. He held that the Pattadari interest and the Dar-pattadari interest are distinct and separate, and the inclusion of the suit-plot in the mortgage bond and the subsequent decree following thereupon, would not affect the Dar-pattadari interest at all since the mortgagor had no right to mortgage that interest. The Plaintiff's suit cannot be held to be barred by res judicata on account of the stand taken by him as Defendant-7 in the mortgage suit. The Plaintiff's suit cannot be held to be barred by res judicata on account of the stand taken by him as Defendant-7 in the mortgage suit. He did not admit in the mortgage-suit that his inferior interest of Dar-pattadari right in plot No. 510 was also in item of property of the mortgage-bond and that he wanted to redeem the same. He also came to the conclusion that the suit was not barred by Section 47 of the Code of Civil Procedure. On these grounds, he concluded that there was no extinguishment of the Dar-pattadari right u/s 111 of the T.P. Act, nor could that be considered an accession to the mortgaged property u/s 70. On these findings, he reversed the decision of the trial Court. 8. On the evidence it is clear (vide Exts. 4, 14 and 21 and the subsequent dealings with the subject-matter of the suit) that two separate and distinct interest existed in respect of suit-plot No. 510. This plot No. 510 admittedly contains buildings, one interest is the Pattadari interest which is of superior nature, and subordinate to it is another interest known as Dar-Pattadari interest. To emphasize this distinction, the Khasmahal has constituted separate Khatas, one for Pattadari interest and one for the Dar-pattadari interest in respect of the same plot. The right of the Dar-pattadar is to be physically on the land enjoying plot No. 510 with houses thereon in Khas, while the Pattadari interest is the superior interest comprising the present right to receive rent from the Dar-pattadar with the right of reversion on the termination of the Dar-pattadari interest. The Khasmahal has recognized different persons as Pattadar and Dar-pattadar in respect of the suit land. Transfers of subordinate and superior rights have been made on the basis of this distinction existing between the two rights. Therefore, what was obviously mortgaged in 1934 by Chaitan and Anadi whatever right they had in the suit property, viz., only the Patadari interest. It is obvious that they could not mortgage more than what they possessed, and accordingly, the mortgage-deed must be construed as offering the Pattadari interest alone as security for the loan. At the time of the mortgage in 1934 the pattadars were not in Khas possession of plot No. 510 containing the house. Then in 1936, the mortgagors transferred (Ext. A) their right to the present Plaintiff. At the time of the mortgage in 1934 the pattadars were not in Khas possession of plot No. 510 containing the house. Then in 1936, the mortgagors transferred (Ext. A) their right to the present Plaintiff. At the time of this transfer of the mortgagor's interest, the Dar-pattadari interest remained separate and distinct. The Munsif also must be deemed to have recognized this distinction when be said that the Dar-pattari interest was an accession to the mortgaged property and not the mortgaged-property itself. While the Plaintiff possessed the mortgagor's right in the suit-property, the Dar-pattadar who happens to be his father, died some time in 1943. Consequent upon his death, the Plaintiff and his brother both jointly succeeded to the Dar-pattadari interest, and got, possession of the suit-plot No. 510 with the houses thereon. At that point of time, Plaintiff-1 while owning the Dar-pattadari interest as a co-heir with his brother, held the pattadar's interest, having purchased the same from the Pattadars in his own right in which his brother had no connection. Thus, the distinction was maintained between the two rights. While this was so the emit for foreclosure was filed by the mortgagee which was O.S. 35 of 1943. The Plaintiff, as Defendant-7 in the mortgage-suit, appeared and prayed for partial redemption. This prayer for partial redemption was refused and the preliminary decree was passed on 15-2-45. The final decree followed thereupon on 11-2-48. The preliminary decree directed that the final decree shall be passed for foreclosing the mortgagor's right to redeem, and for sale of the mortgaged property. The mortgaged property is described in Schedule A of that decree. In item 2 of Schedule A, the property is unequivocally stated to be the Pattadari interest in the Khasara numbers stated therein, of which plot No. 510 is one. The descriptive word used is "Khasmahal Pattai Rayati" which is highly significant. This means that the Pattadar's interest alone shall be sold and the sale will not affect the interest and possession of the Dar-pattadar. In my opinion, what was directed to be sold was the present right of the Pattadar, viz., the right to receive rent and the ultimate right of reversion to get possession of the Dar-pattadari interest, if and when the said interest terminates either by operation of law, or by act of parties. In my opinion, what was directed to be sold was the present right of the Pattadar, viz., the right to receive rent and the ultimate right of reversion to get possession of the Dar-pattadari interest, if and when the said interest terminates either by operation of law, or by act of parties. The judgment in the mortgage suit has been filed as an exhibit in this case. The Plaintiff who contested the suit as Defendant-7 had residing in him the fun pattadari right and a share in the Dar-pattadari right at the time. The question of the distinctiveness of the two rights as existing separately and independently of each other was never canvassed, nor was it the subject-matter of decision in the mortgage-suit either directly or substantially. These questions are directly relatable to paramount title to the land and were, therefore, obviously excluded from judicial determination in that mortgage-suit. That was also not the stage where these questions should have been raised and decided. The proper stage to be decided was when the mortgage decree would be put into execution. The Plaintiff as Defendant-7 had a proper footing for seeking for partial redemption in respect of plot No. 510, inasmuch as he held the Pattadari interest by purchase. By such a request the Plaintiff should not be deemed to acknowledge thereby that the mortgage was not only of the Pattadari interest, hut also of the Dar-pattadari interest. Till the passing of the final decree in the mortgage suit, the Plaintiff was the full owner of the Pattadari-interest and partial owner of the Dar-pattadari interest. It is only subsequently in I ?52 when his brother surrendered his Dar-pattadari interest to him that he became the full and sole owner of both the interests. But by that time, the Pattadari-interest had already been decreed to be sold. The question, therefore, which agitated the Courts below and is also a crucial one, is whether the Dar-pattadari interest can be deemed to be an accession to the mortgaged-property, viz., the Pattadari-interest, by reason of the Plaintiff having succeeded, as co-heir to the Dar-pattadari interest in 1943 when he held exclusively the Pattadari interest by purchase. The question, therefore, which agitated the Courts below and is also a crucial one, is whether the Dar-pattadari interest can be deemed to be an accession to the mortgaged-property, viz., the Pattadari-interest, by reason of the Plaintiff having succeeded, as co-heir to the Dar-pattadari interest in 1943 when he held exclusively the Pattadari interest by purchase. If it can be construed to be an accession, then undoubtedly the mortgagee would be entitled to such accession as part of the mortgaged-property and the mortgage-decree would naturally be held to be in respect of such accession as well. 9. Section 70 of the Transfer of Property Act speaks of accession to the mortgaged-property. It lays down that if, after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession. There is, of course, no contract to the contrary against such accession. The accession is said to have resulted by reason of the merger of the Dar-pattadari interest with the Pattadari interest u/s 111, Clause (d) of the Transfer of Property Act. Section 111, Clause (d) provides that a lease of immoveable property is determined in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. If this applies, and the Dar-pattadari interest merges with the Pattadari interest in the Plaintiff, then obviously the interest would be accession to the Pattadari interest which is the subject-matter of the mortgage. It has been judicially held that Section 70 is not limited to physical accretion or addition, but includes an increase of interest or enlargement of the estate. Thus if a mortgagor constructs building on the mortgaged-property subsequent to the mortgage building can be treated as an accession to the mortgaged-property. Therefore, there can be no doubt that if the Dar-pattadari interest is merged with the Pattadari interest and become vested at the same time in the Plaintiff that would be an accession to the mortgaged property. But as the facts set out above, are, the Plaintiff succeeded to the moiety of the Dar-pattadari interest in plot No. 510, the other half belonging to his brother. At that time of succession he held the total Pattadari interest. But as the facts set out above, are, the Plaintiff succeeded to the moiety of the Dar-pattadari interest in plot No. 510, the other half belonging to his brother. At that time of succession he held the total Pattadari interest. There was, therefore, no vesting of the entire pattadari-interest and the entire Dar-pattadari interest in the Plaintiff, that is to say, there was no union of the en tire Dar-pattadari interest with the whole of the Pattadari interest, in plot No. 510. The Plaintiff having acquired part of the Dar-pattadari interest would not bring about the operation of the doctrine of merger. Therefore, in my opinion, there was no accession of the Dar-pattadari interest to the mortgaged property, and as such the mortgagee is not entitled to the same. It naturally follows that the accession not having taken place before passing of the final decree, the Dar-pattadari interest is beyond the reach of the mortgagee decree holder. 10. For the aforesaid reasons, I am also of the opinion that these matters were not directly and substantially in issue in the mortgage-suit, nor were these matters which might or ought to have been made grounds of attack in that suit. 11. The Plaintiff-judgment-debtor in execution of the mortgage decree filed a petition u/s 47, CPC claiming that this Dar-pattadari interest was not liable to be Bold in execution of that decree. That has been rejected on 16-4-1950. In rejecting this application the executing Court did not give any finding as to whether the Dar-pattadari interest was sold in execution of the mortgage-decree as part of the mortgaged property. The Plaintiff judgment-debtor, it appears did not agitate against that order, but allowed it to become final at that stage. But relying on the observation of the executing Court in that order that it is open to the Plaintiff to have it decided in a properly framed suit, he refrained from agitating against the order. The petition of the Plaintiff u/s 47 is substance, complained that the sale in execution of the mortgage-decree was not merely the mortgagor's interest under the mortgage-bond, Ext. 13, but of the properties themselves, which amounted to excessive execution. That is a question, which according to the view of the Supreme Court reported in Merla Ramanna Vs. Nallaparaju and Others could only be decided by the executing Court. 13, but of the properties themselves, which amounted to excessive execution. That is a question, which according to the view of the Supreme Court reported in Merla Ramanna Vs. Nallaparaju and Others could only be decided by the executing Court. In my opinion, having regard to the terms of the mortgage-decree what was being sold, was not the mortgaged-property comprised of the Dar-pattadari interest but of the mortgagee's right, whatever it was, which he got under the mortgage bond. In such a sale, the properties have to be described by their plot numbers and Khata nos, and there being no specific averment or assertion either by the Court or on behalf of the decree-holder that the Dar-pattadari interest in these plots were also being sold, it was not necessary for the judgment-debtor to have filed an objection before the executing Court. At the same time, he anticipated trouble and wanted to avoid the same by a petition u/s 47. The Plaintiff says that he is still in possession of the plot and in the enjoyment of his Dar-pattadari interest in the same. His right would be affected only when the mortgage seeks to take Khas possession of the property in execution of the mortgage-decree and when the executing Court proceeds to grant such possession to the purchaser. It is when such a step is taken it can be said that it would be an excessive execution. In my opinion, therefore, the application u/s 47 was premature. 12. The present suit is for the following reliefs: (i) For & declaration that the decree passed in O.S. 35/43 in the Court of the subordinate judge, is void and fraudulent one and the disputed property is not liable to be sold in execution case No. 73/49; (ii) for a permanent injunction against the Defendant restraining him from proceeding against the disputed property and for a temporary injunction restraining him from proceeding further in execution case No. 73/49. Fraud apart these reliefs would be clearly barred by Section 47, Code of Civil Procedure. The Plaintiff has not clearly demarcated that the interest which is not saleable is the Dar-pattadari interest subsisting in that plot. Fraud apart these reliefs would be clearly barred by Section 47, Code of Civil Procedure. The Plaintiff has not clearly demarcated that the interest which is not saleable is the Dar-pattadari interest subsisting in that plot. That plot is liable to be sold, but that sale would be limited to the extent of the pattadari interest alone, and will not affect the Dar-pattadari interest, and the Dar-pattadari's possession of the houses thereon, if it can be held that the Dar-pattadari interest envisages and encompasses Khas possession. When such a dispute arises, then it may be the duty of the Court to demarcate the Dar-pattadari interest from the pattadari interest. 13. The suit was mainly for a declaration that the mortgage-decree having been fraudulently obtained, is a void one, and has rightly been dismissed by the trial Court. The question whether Dar-pattadari interest was part of the mortgage property in respect of which mortgage-decree has been passed, is one which can only be decided by the executing Court u/s 47, CPC and has been decided in this suit. In my opinion that question did not directly arise within the scope of the present suit as framed. After concurring with the trial Court that there was no fraud practised in course of the mortgage-suit, the appellate Court should have maintained dismissal of the suit without unnecessarily launching himself into a discussion whether the Dar-pattadari interest was a part of the mortgage-property. Accordingly, I would allow this appeal and dismiss the suit and leave open the question whether Dar-pattadari interest in plot No. 510 is liable to be sold in execution of the mortgage decree. It will be open to the Plaintiff to raise that question at proper time and in proper forum, if legally permissive. 14. The Plaintiff, after conclusion of the hearing of this appeal, has filed an application under Order 2, 3, Rule 1, CPC for permission to withdraw the suit and to bring a fresh suit. This has been opposed vehemently by the learned Counsel for the Appellant. 14. The Plaintiff, after conclusion of the hearing of this appeal, has filed an application under Order 2, 3, Rule 1, CPC for permission to withdraw the suit and to bring a fresh suit. This has been opposed vehemently by the learned Counsel for the Appellant. The prayer is to withdraw the suit in so far as it impliedly involves the relief of declaration that the Dar-pattadari interest is not saleable in execution of the mortgage-decree and to allow dismissal of the suit to stand, in regard to the declaration that the decree obtained in the mortgage-suit is fraudulent and void and that no interest in the property is saleable in execution of the mortgage decree. Since I have left the question of saleable character of the Dar-pattadari interest in plot No. 510 open, as not properly arising in this suit, it is unnecessary to deal with this petition for withdrawal. 15. In the result, therefore, the appeal succeeds and is allowed with costs. Final Result : Allowed