Bhodai Sheikh v. Barada Kanta Dutta

Mitter, J.:— This is an appeal from a decision of the District Judge of Murshidabad, dated 10th February 1925, which affirmed a decision of the Munsif of Jangipur, dated 18th December 1923.

2. The appeal arises out of a suit commenced by the plaintiff to recover possession of a plot of 2 bighas 6 cottas odd in area.

3. The case of the plaintiff is that this land originally belonged to one Jhabu Sheikh who mortgaged this plot along with three other plots to one Bogdad Biswas in the year 1900. In 1908 Jhabu mortgaged plot 1 with the plaintiff. The plaintiff instituted a suit on his mortgage and obtained a decree in the year 1915, and in execution of that decree he purchased plot 1 on 19th August 1916. Some time in 1920 Bogdad obtained a decree on his mortgage with reference to the four plots mortgaged to him and in execution of that decree he purchased the mortgaged property, namely, the four plots. On 9th December 1920 he sold this property to the present defendant. The plaintiff alleges that he was dispossessed by Bogdad, the first mortgagee. There was a proceeding under O. 21, R. 100 of the CPC, at the instance of the plaintiff in which he succeeded. On 7th March 1921 the plaintiff recovered possession, but he was again dispossessed in June 1921. He brought a suit under Section 9 of the Specific Relief Act, in which he failed, Consequently he commenced the present suit for possession of the property now in suit.

4. Both the Courts below have decreed the plaintiff's suit and granted him possession in respect of the disputed land.

5. In this second appeal it has been contended by the learned advocate for the defendant that the plaintiff can only obtain possession conditional on his redeeming the first mortgage in which Bogdad, the original mortgagee, was interested and whose right has now passed to the defendant by his purchase. The question which we have to determine is whether the plaintiff is entitled to a decree for possession without any condition, or whether he can only succeed on his redeeming the first mortgagee or the defendant who now stands in the shoes of the first mortgagee. Both the lower Courts seem to think that this relief cannot be given to the defendant in the present suit. I think that the Courts below are clearly wrong. It is not necessary to have another suit in which the right between the plaintiff and the defendant as purchasers in execution of the two mortgage decrees respectively should be determined. The matter can be determined in the present litigation, and to avoid multiplicity of suits it is desirable that the matter should be determined in the present suit.

6. In these circumstances, I think that the decree of the trial Court, as affirmed by that of the lower appellate Court, should be varied by an order that the plaintiff would be entitled to recover possession conditional on his redeeming the first mortgagee within a certain time to be fixed by the trial Court. The case, therefore, is remitted to the Court of first instance for the purpose of fixing the time during which the plaintiff would be allowed to redeem the first mortgage of the year 1900 and also for determining upon what terms he would be allowed to redeem.

Rankin, C.J:— I agree. I should like to say that in my opinion, the true law in this matter is laid down in the case of Kalu Sharip v. Abhoy Charan (1) and in the case of Bhagaban Chandra v. Tarak Chandra (2). As regards the point about the order under O. 21, R. 100 of the CPC, the plaintiff at that time was in possession and the order under that rule was made originally in his favour because he could not have been ejected by the first mortgagee. There was no need to bring a suit to set aside that order which was perfectly right. Since then the plaintiff got out of possession and he failed under Section 9 of the Specific Relief Act, and, therefore, he has come before the Court not merely on the basis of his own possession which is gone, but on the merits of the claim, which makes all difference. That makes applicable the two cases to which I have referred.

7. In this case the Munsif's order giving the plaintiff the costs of the trial must be varied and the order for costs before the Munsif will be that each party will bear his own costs. But the plaintiff must pay the costs of the two appeals and those costs will be added to the sum due on the mortgage. So that the plaintiff would have to pay those as a condition of redeeming. If the plaintiff, however, in the end fails to redeem, then he must pay the costs in all Courts.

8. Appeal allowed.