Shri Bal Krishna Gupta v. Negeshwar Singh — 1985 DIGILAW 293 (PAT)

JUDGMENT : S. K. Choudhuri, J. - This second appeal by the defendant first party is against the JUDGMENT : of reversal. The trial court (Munsif First Court, Begusarai) dismissed the suit by its JUDGMENT : and decree dated 27th July 1968, passed in First Suit no. 39 of 1983. The lower appellate court (First Additional-Subordinate Judge, Begusarai), however, allowed the appeal and reversed the JUDGMENT : and decree of the trial court. 2. In ORDER :to appreciate the points raised in this appeal on behalf of the appellant, it is necessary to state the salient facts of the case. A suit for redemption of the mortgage with respect to the house standing over 16 dhurs & 10 Dhurkis of land of plot no. 634, khata no. 152 ward no. 2 within Begusarai Municipality was filed by the plaintiff. The plaintiff's case was that the aforesaid property belonged to one Rohin Mahto. It is not disputed that the said Rohin Mahto executed a registered usufructuary mortgage on 23.7.1948 for a consideration of Rs. 2000/- in favour of defendant no. 1 - the appellant before this Court. The said Rohin Mahto the mortgagor, however, after the mortgage was allowed to occupy the said, property as a tenant, under defendant no. 1 and he also executed a kerayanama to that effect. On 23.9.1981, Rohin Mahto took a further sum of Rs. 773/- from defendant no. 1 and executed another mortgage creating further burden upon the suit property. The further case of the plaintiff was that the rent under the Kirayanama was not paid by Rohin Matho to defendant no. 1 who was forced to file a suit for recovery bf the arrears of rent against Rohin Mahto as a tenant and obtained a decree for rent. The said decree was put under execution in Execution case no. 106 of 1957, and in the said case the property aforesaid was auction sold, and purchased by defendant no. 1 -the decree-holder. According to the plaintiff, the execution case as also the sale held in the said execution were all void and without jurisdiction as Rohin Mahto was dead before the processes of the execution case could be served. According to the plaintiff Robin Mahto had died on 16th May 1966. 1 -the decree-holder. According to the plaintiff, the execution case as also the sale held in the said execution were all void and without jurisdiction as Rohin Mahto was dead before the processes of the execution case could be served. According to the plaintiff Robin Mahto had died on 16th May 1966. The further case of the plaintiff was that on 28.1.1958 the processes in the execution case were shown to have been served upon the said Robin Mahto who was, in fact, dead then and, therefore, all subsequent action in the execution case were all without jurisdiction and defendant no. 1 did not, by his purchase in the auction sale acquire any right title or interest in the suit property. In the alternative the allegation of the plaintiff was that the auction purchaser (defendant no. 1) by his purchase, in the auction sale did not acquire the right to the equiry of redemption. According to the plaintiff, defendant no. 2 is the daughter of the aforesaid Rohin Mahto, who after the death of Rohin Mahto succeeded to the suit property as his only heir and thus she had the right to redeem the mortgage. As the property has beep sold by defendant no. 2 to the plaintiff, the plaintiff has got the right of redemption and, accordingly with these allegation as he filed the present suit. 3. The defence in short, of defendant no. 1 was that whatever right Rohin Mahto bad was extinguished by purchase by him in the auction sale held in Execution Case no. 106 of 1957. The further defence was that the date of death of Rohin Mahto as alleged by the plaintiff is, not correct and in fact, Rohin Mahto was alive at the time of the delivery of possession and the processes of the execution case were duly served upon him. By purchase by defendant no. 1 in the auction sale, he had acquired full right in the property and after purchase by him in the auction sale be took possession over the property by ousting Rohin Mahto. According to the defence, after possession, defendant no. 1 constructed a house. The further defence was that defendant no. By purchase by defendant no. 1 in the auction sale, he had acquired full right in the property and after purchase by him in the auction sale be took possession over the property by ousting Rohin Mahto. According to the defence, after possession, defendant no. 1 constructed a house. The further defence was that defendant no. 2 is not the daughter of Rohin Mahto and, therefore, she could not sell the suit property to the plaintiff and by such purchase from her, the plaintiff did not acquire right, title and interest in the suit property. Defendant no. 2, however did not contest the suit, though she filed a written statement supporting the case of the plaintiff. 4. The trial court on a consideration of the materials on record held that defendant no. 2 was not the daughter of Rohin Mahto. It found that by purchase by defendant no. 1 in the auction sale in execution case no. 106 of 1957, he acquired full right over the property and that Rohin Mahto was alive when the execution sale was held. The trial court further found that there was no fraud in conducting and publishing the sale and that there was no suppression of the processes in the said execution case. The trial court negatived the arguments put forward on behalf of the plaintiff that the purchase by defendant no. 1 in the auction sale would be deemed to be purchase for the benefit of the mortgagor. The reasoning of the trial court was that defendant no. 1 made the purchase in the auction sale not by virtue of his possession as mortgagee but quite independently as any third person could have made the purchase. The trial court relied upon a Bench decision of this Court in the case of Umrao Singh and others v. Chakauri Singh & others (1958 B.L.J.R. 95: A. I. R. 1958 Patna, 302) in negativing the aforesaid contention of learned Counsel for the plaintiff. The trial court however held that defendant no. 2 though daughter of Rohin Mahto did not acquire any right title or interest in the suit property after the death of Rohin Mahto as the said property passed to defendant no. 1 after purchase in the auction sale. With these findings the trial court dismissed the suit. 5. The trial court however held that defendant no. 2 though daughter of Rohin Mahto did not acquire any right title or interest in the suit property after the death of Rohin Mahto as the said property passed to defendant no. 1 after purchase in the auction sale. With these findings the trial court dismissed the suit. 5. An appeal was filed before the lower appellate court by the plaintiff and the lower appellate court after discussion of the materials on record affirmed all the findings of the trial court except that it held that the purchase by defendant no. 1 was as mortgagee and, therefore; by the said purchase in the auction sale the right of redemption of the plaintiff could not be lost. It further held that by purchase by the plaintiff from defendant no. 2, the. plaintiff acquired right, title and interest in the property and, therefore, the suit for redemption filed by him was maintainable. With these findings, the lower appellate court decreed the suit and reversed the JUDGMENT : and decree of the trial court. 6. Mr. Sukumar Sinha learned counsel in support of this appeal vehemently argued that the lower appellate court has completely erred in law in holding that the purchase by defendant no. 1 was as a mortgagee. In the facts and circumstances of the case, he argued that the said purchase could not be said to have been hit by section 63 of the Transfer of Property Act or Section 90 of the Trust Act. Learned Counsel pointed nut that in fact the suit which was filed by defendant no. 1 was for recovery of arrears of rent against Rohin as tenant on the basis of Kirayanama executed by the latter, and in that suit defendant no. 1 obtained a decree and executed the same in Execution Case no. 106 of 1957 and, therefore, it cannot be said that the principles of section 63 of the Transfer of Property Act or Section 90 of the Trust Act would apply. There was no question of any trust. 1 obtained a decree and executed the same in Execution Case no. 106 of 1957 and, therefore, it cannot be said that the principles of section 63 of the Transfer of Property Act or Section 90 of the Trust Act would apply. There was no question of any trust. It has been contended that the lower appellate court while applying the principles of section 63 T.P. Act and section 90 of the Trust Act confused in assuming that the mortgagee was requird to pay rent which was an Obligation on him as mortgagee and there being default of such obligation by the mortgagee the purchase by the mortgagee in the auction sale could not derive him title in the said property in dispute. On the basis of such supposition, it further held that the mortgagor always stood in the position of feduciary relationship and, therefore, he could not derive advantage in derogation of the right of the mortgagor by merely making some repairs or reconstruction in the house under mortgage. It has been rightly contended by learned counsel for the appellant that this principle has no application in the present case. Here no feduciary relationship existed between defendant no.1 and Rohin Mahto and in fact it was the duty of the mortgagor Rohin Mahto to pay the rent to defendant no. 1 the mortgagee on the basis of a separate transaction of tenancy entered into under the Kirayanama after the usufructuary mortgage was executed in favour of defendent no. 1. On perusal of the JUDGMENT :s of the courts below and after hearing learned counsel Mr. Sinha for the appellant and Mr. Verma ,appearing for the respondents, I am of the view that the trial court was perfectly correct in the reasonings for coming to the conclusion that in the auction purchase in execution case no. 106 of 1957, defendant no. 1 became the absolute owner of the suit property and after the said purchase nothing was, left for Rohin Mahto or after his death of his daughter (defendant no. 2) to convey any right, title and interest in the suit property to the plaintiff and as such it must be held that the plaintiff had no cause of action for filing the suit for redemption. 7. 2) to convey any right, title and interest in the suit property to the plaintiff and as such it must be held that the plaintiff had no cause of action for filing the suit for redemption. 7. In the circumstances anti for the reasons stated above, the appeal is allowed and the JUDGMENT : and decree of the lower appellate court are set aside and those of the trial court are restored. In the circumstances of the case, there shall be no ORDER :as to costs.