Hargu Lal Singh v. Gobind Rai

Edge, C.J and Blair, Banerji, Burkitt and Aikman, JJ.:— The plaintiff obtained a simple mortgage from one Abdul Kadir in 1879. On the 18th of September, 1886, the mortgagor sold 27 bigbas of the mortgaged property to Gobind Rai and Tulsbi Rai, the defendants in the suit. Mr. Abdul Raoof for the plaintiff, appellant, informs us that the plaintiff brought a suit for sale, on his mortgage of 1879 against Abdul Kadir after the 18th of September, 1886. To that suit Gobind Rai and Tulsbi Rai were not parties. On the 28th of March, 1891, the plaintiff obtained a decree for sale in his suit against Abdul Kadir; be brought the property to sale, got permission to buy, and purchased the property at the sale held in execution of his decree. He has now brought this suit, claiming to eject Gobind Rai and Tulsbi Rai from a portion of the 27 bighas above-mentioned, the equity of redemption in which had been sold to them in 1886 by Abdul Kadir by a registered deed. The Court of first instance gave the plaintiff a decree for possession with a conditional right to these defendants to redeem. The lower appellate Court in appeal dismissed the plaintiff's suit.

The plaintiff can only succeed in this suit for possession on proof of title to a present possession at the date of his suit. His simple mortgage did not entitle him to possession as against any one. His decree for sale, being in a suit to which these defendants were not parties, had no effect as against them, and his purchase [543] at the sale held under the decree conferred on him no title as against these defendants. The result is that the plaintiff had no title to possession at the commencement of the suit against these defendants, and his suit was properly dismissed, though on other grounds. We dismiss the appeal with costs.

Appeal dismissed.