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Bijai Saran Sahi Vs. Rudra Bageshwari Prasad Bahadur Sahi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1930)32BOMLR144
AppellantBijai Saran Sahi
RespondentRudra Bageshwari Prasad Bahadur Sahi
DispositionAppeal dismissed
Excerpt:
.....the mortgages. the defendants obtained possession of the villages under the sale. prior to the sale, the plaintiffs in execution of his money decree against the mortgagor had attached the villages in question in september 1908 and bought the equity of redemption at the auction sale in august 1909. the present suit was brought by the plaintiffs to recover possession of the villages from the defendants on the ground that the latter's purchase of november 1908 was invalid by reason of the provisions of section 64, civil procedure code, 1908 :-;that the sale of november 1908 being admittedly invalid as against the plaintiffs, the plaintiffs were entitled to an unconditional decree for possession and as the mortgages of 1904 in defendants' favour did not give them any right to possession,..........known as kanchanpur and patkoli with mesne profits and costs. the subordinate judge made a decree for possession and on appeal the high court of judicature at allahabad by a decree dated may 28, 1926, affirmed the decree of the subordinate judge. at the hearings before the courts respectively the defendants (appellants) relied upon their possession under a certain purchase deed dated november 19, 1908, of the. equity of redemption of one mahant karya bharathi in the said villages, whilst the plaintiffs (respondents) claimed a superior title through certain sale certificates in respect of each of the villages eventuating out of suits filed by the predecessor of the plaintiffs (respondents). it is unnecessary to go into any detail as to this branch of the controversy between the.....
Judgment:

Carson, J.

1. The present suit was brought in the Court of the Subordinate Judge of Gorakhpur by the plaintiffs (first three respondents) to recover possession from the defendants (appellants) of certain villages known as Kanchanpur and Patkoli with mesne profits and costs. The Subordinate Judge made a decree for possession and on appeal the High Court of Judicature at Allahabad by a decree dated May 28, 1926, affirmed the decree of the Subordinate Judge. At the hearings before the Courts respectively the defendants (appellants) relied upon their possession under a certain purchase deed dated November 19, 1908, of the. equity of redemption of one Mahant Karya Bharathi in the said villages, whilst the plaintiffs (respondents) claimed a superior title through certain sale certificates in respect of each of the villages eventuating out of suits filed by the predecessor of the plaintiffs (respondents). It is unnecessary to go into any detail as to this branch of the controversy between the parties, as the decisions upon this matter in the Courts below have not been challenged in argument before this Board when the only question was whether the plaint-tiffs (respondents) were entitled to oust the possession of the defendants (appellants) without redeeming certain mortgages dated respectively March 22, 1904, and April 26, 1904, and which the trial Court had hold were valid and subsisting mortgages. Now admittedly these mortgages were not usufructuary mortgages, and as the plaintiffs (respondents) have been hold to be and are the owners of the equity of redemption it is impossible to see under what title the defendants (appellants) can claim to resist the decree for possession. As stated in the judgment of the High Court, 'They,' i.e., the defendants (appellants) 'got possession by virtue of the sale of November 19, 1908...If the sale is invalid they must surrender possession of the same because their mortgages did not give them any right to possession.' Whatever rights (if any) they have under their mortgages they can no doubt enforce in proper proceedings taken for the purpose, but there is no principle or authority which enables the defendants (appellants), as contended by them, to set up their mortgages as shields against the plaintiff-respondents' claim for possession.'

2. Their Lordships will therefore humbly advise His Majesty that this appeal should be dismissed with costs.


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