Khub Lal Upadhya v. Jhapsi Kundu

Dawson Miller, C.J:— This is an appeal on behalf of the plaintiff under the Letters Patent from a decision of Ross, J., over-ruling the decision of the District Judge.

The suit was instituted by the plaintiff to redeem a zarpeshgi mortgage granted to the defendants 1 and 9 in the suit in the year 1895. The facts which gave rise to the subject-matter of the present appeal may be shortly stated. In mauza Kiritpur Yusufpur there was a separate patti consisting of a 2-annas 6-pies share. One-third of this belonged to two persons named Ambica Singh and Jagdam Singh the remainder being held by other co-sharers with whom we are not concerned. In 1895 the two persons named granted a zarpeshgi mortgage of their one-third share to certain persons who are now represented by the defendants 1 and 9 and they entered into possession. The plaintiff subsequently purchased the whole proprietary interest in the 2-annas 6-pies patti, including the one-third share the subject of the mortgage. In 1918 the plaintiff brought the present suit seeking to redeem the mortgage and obtain possession of the property upon paying the sum found due on taking an account. In addition to the zarpeshgidars certain other persons now the defendants 10 to 14, were impleaded as defendants although no specific relief was claimed as against them. With regard to them it was alleged in the plaint that they had been recorded by the zarpeshgidars as tenants of certain lands in the direct possession of the zarpeshgidars although in fact they had acquired no interest therein as tenants and that the entries so recorded were false. These defendants may be referred to as the tenant-defendants. There was no particular reason why in a suit for redemption the Court should determine any issue relating to the status of the tenant-defendants. Any right they might assert as tenants might properly have been determined in a subsequent suit. On the other hand if they appeared and contested the allegations set out in the plaint, as in fact they did, and set up a paramount title, and if issues were framed with their concurrence, as in fact happened, I hardly think that they could afterwards object to this course if the issues should be decided against them. The fifth issue framed was to this effect:

“Have the defendants 12 to 16 (now re-numbered the defendants 10 to 14) any concern with the lands in suit and have they got any title to the same.”

The Munsif, before whom the case came for trial, found in favour of the plaintiff's claim for redemption and ordered the zarpeshgidar defendants to make over possession to the plaintiff of the mortgaged property free from all incumbrances if within three months the entire mortgage money should be paid. He also found with regard to the fifth issue that the tenant-defendants had no rights in the lands claimed by them and he decided the issue against them.

The tenant-defendants appealed to the District Judge who dismissed the appeal. He was of opinion that the tenant-defendants were properly impleaded under the provisions of Order XXXIV, rule 1, of the Civil Procedure Code, as persons having an interest or claiming to have an interest in the mortgaged security. He was further of opinion that the plaintiff was right in making the tenant-defendants parties thus avoiding multiplicity of suits and that the trial Court was competent to decide the issue. On the merits he agreed with the conclusions arrived at by the trial Court.

From this decision a second appeal was preferred to this Court and was beard before Ross, J. The learned Judge over-ruled the decision of the District Judge, being of opinion that the tenant-defendants were not proper parties to a suit instituted by the plaintiff against other defendants to redeem a zarpeshgi mortgage, and that the issues which were raised between the plaintiff and the tenant-defendants were not germane to the issues in the present suit. The learned Judge was apparently much impressed by a series of cases in which it has been laid down that in a mortgage suit questions which may be raised by the defendants asserting a paramount title to the mortgaged property are not proper questions to have determined in a mortgage suit and no doubt in so far as a rule exists to that effect it is a very salutary rule because it is obvious that the matters which have to be decided in a mortgage suit are entirely separate from any questions which may arise between the plaintiff in the suit and defendants who may be asserting a paramount title and if the two matters are allowed to be tried together embarrassment and great inconvenience may arise. In fact it is provided by Order II, rule 4, of the Civil Procedure Code that no cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable; property, except in certain cases which are not material to the present dispute, and there is a proviso to that rule which lays down that nothing in this rule shall be deemed to prevent any party in a suit for forest closure or redemption from asking to be put in; possession of the mortgaged property. Although it is, as a general rule, desirable in mortgage suits to exclude all issues between the parties except those immediately concerned with the mortgage suit itself, I do not think that it can for a moment be doubted that the Court may, in certain cases, if it should think fit, allow other issues to be determined in such a suit even if they should depend upon separate causes of action, and in fact it seems to me quite clear on reading Order II, rule 4, that the Court may in proper cases, grant leave for that to be done. In the present case I cannot help thinking that if leave had been specifically asked from the Court to allow the issue arising between the present respondents and the plaintiff to be determined in this suit that such leave I would have been granted. No formal application such as that referred to in Order II, rule 4, was made but the respondents as defendants did by their written statement set up a claim to be in possession of some of the mortgaged property as kashtkars, asserting that they had been brought on the land by the predecessor in title of the plaintiff and had been in possession for a period of over twelve years. It appears, therefore, that they were claiming to be in actual possession of some of the mortgaged property, and looking at the proviso to rule 4 of Order II it is clear that the plaintiff in a suit for redemption may ask to be put in possession of the mortgaged property. Where the defendants raising a paramount title are those in possession and likely hereafter, if their differences are not settled by the mortgage suit, to resist the possession of a successful plaintiff in the mortgage suit, it would, in my opinion, in many cases, be very convenient to allow the issues which have been raised to be determined in the mortgage suit, so that after determination of those issues the plaintiff will know whether he may or may not get undisturbed possession of the property instead of having to bring a separate suit later on, and in a case like the present I can see nothing embarrassing in allowing these issues to be determined. In any case it was a matter which was within the discretion of the Court and although, as I have said, no formal request was made for the leave of the Court, nevertheless where both parties are, at arms' length, where both parties are setting up varying titles to the mortgaged property, one claiming to be in possession and the other claiming that he has no right or title to be there, it seems to me that is just the sort of case in which the Court might well grant leave; and if the parties raise issues such as that which was raised in the present case and the Court acquiesces in that course and allows those issues to be tried, I think it may well be said that the issues were raised With the leave of the Court. But assuming even that there was some irregularity in allowing the question of the status of the defendants to be determined in the present suit then that was an irregularity merely and on turning to section 99 of the Civil Procedure Code it seems clear that an irregularity such as that which I have indicated is no ground at all for setting aside the decision of the lower Court on appeal unless the irregularity is one which affects either the merits of the case or the jurisdiction of the Court. It has not been suggested in this case, nor could it be successfully contended, that by deciding the point in question in this appeal the merits of the case were in any way affected. The parties had every opportunity of giving evidence on the point, they gave evidence, and that evidence was considered and a decision was come to. Further, as I have already indicated, it seems to me that there is nothing in the irregularity, if indeed it be an irregularity, which affects the jurisdiction of the Court, because, as I have already pointed out, under Order II, rule 4, it is quite clear that the Court would, if it so chose and granted leave, have jurisdiction to determine a question such as this. In these circumstances it seems to me that the decision of the learned Judge of this Court cannot be supported and should be set aside. If authority were needed for the proposition which I have just stated it will be found in many cases three of which alone I need refer to: Hare Krishna Bhowmick v. Robert Watson and Company, Syed Zakirraza v. Madhusudan Dass, a decision of this Court, and Bhaja Chowdhury v. Chuni Lal Marwari. In my opinion the appeal must be allowed, the decision of the learned Judge of this Court must be reversed and the decree of the District Judge should be restored. The plaintiff in the suit is entitled to his costs of this appeal and of the appeal before Ross, J.

Mullick, J.:— I agree.

Appeal allowed.