1. This is a plaintiff's appeal arising out of a suit for a declaration that the plaintiff is the owner of the property in suit and that the defendants have no right therein except as representatives of the mortgagee.
2. The Court of first instance decreed the claim and disallowed the various objections raised by the defendants.
3. On appeal the learned Subordinate Judge has allowed the appeal and dismissed the suit on three grounds:
(1) That the suit was barred by time;
(2) That the suit was barred under Section 42 of the Specific Relief Act; and
(3) That the claim was barred by the provisions of Section 233(K) of the Land Revenue Act.
4. The facts of this ease are slightly complicated and it is necessary to refer to them briefly.
5. Dilsukh and Mansingh were two brothers and in 1876 they made a mortgage of their 3/16th share each in favour of the plaintiff's ancestor for a sum of Rs. 700 each. Subsequently Dilsukh died and in 1896, his widow, Mt. Phulo, and Mansingh made a second mortgage of their 6/16th share in the village to the same mortgages for another sum of Rs. 1,400. In 1910 Mansingh purported to sell the entire 6/16th share to the defendants. By that time Mt. Phulo had died. When the defendants applied to the Revenue Court for entry of their names by virtue of this last sale-deed, the daughters of Dilsukh raised certain objections but their objections were disallowed and the names of the defendants were entered in the revenue papers in 1911. In 1915 the two daughters proceeded to sell their 3/16th share to the plaintiff.
6. The defendants made a deposit under Section 83 of the Code of Civil Procedure to redeem the previous mortgages and that plaintiff submitted to redemption of the second mortgage which had been executed by Mt. Phulo and Mansingh jointly and also of Mansingh's half share in the first mortgage but they declined to allow redemption of the alleged half share of Dilsukh under the earlier mortgage of 1876.
7. Accordingly in 1916 the present defendants instituted a suit for redemption against the plaintiff. In that suit the defendants put forward two alternative claims. They said, that in the first place, they had acquired the interests of Dilsukh by virtue of the sale-deed of 1910 inasmuch as Dilsukh and Mansingh were really joint and in the alternative they alleged that in any case as they had redeemed the second mortgage of 1876, they were entitled to redeem the first mortgage as persons who had stepped in the shoes of the subsequent; mortgagees. The Court tried the question of title and recorded clear findings that Mansingh and Dilsukh were really separate and that Mansingh had no right to Dilsukh's share in 1910. It accordingly held that the present defendants had no right, to redeem the mortgage of 1876 as proprietors and representatives of Dilsukh but it held that inasmuch as the defendants had' been allowed to redeem the second mortgage of 1896 made by Mt. Phulo and Mansingh, they had steppad into the shoes of the subsequent mortgagee and in that way they were entitled to redeem the first mortgage as subsequent mortgagees. A decree for redemption was accordingly passed.
8. We may note that all this time the names of the defendants had been recorded in the revenue papers as mortgagees. They after the redemption, applied that their names should be recorded as proprietors inasmuch as the mortgage had been satisfied in or about 1917. After the redemption decree they were actually entered m-full proprietors.
9. In 1921 the present suit wag instituted for the declaration mentioned above. The lower Appellate Court has held that the-present claim is barred by limitation because the cause of action in favour of the plaintiff arose in 1911, when the objections of the daughters of Dilsukh, the predeces sor-in-title of the present plaintiff, were disallowed. It has thought that the subsequent proceedings of 1917 in the Revenue Court were in continuation of the previous proceedings and did not give a fresh cause of action to the plaintiff. In our view this view is clearly erroneous. The lower Appellate Court has ignored the fact that in between 1911 and 1917 there was an adjudication by a Civil Court by which it was clearly held that the present defendants had not acquired the proprietary interest of Dilsukh and that they were merely in the position of subsequent mortgagees. After that adjudication it is difficult to hold that it was still the duty of the present plaintiff to bring a suit for a declaration to the same effect within 6 years of 1911. The proceedings of 1917 in the Revenue Court were taken in spite of and subsequent to the adjudication by the Civil Court.
10. The denial of the plaintiff's title was, therefore, a fresh denial and not necessarily in continuation of the preceding one. Under the circumstances the present suit having been instituted within six years of 1917 was not barred by time.
11. The learned Subordinate Judge seems to have been of opinion that inasmuch as it was open to the present plaintiff to bring a suit for redemption on payment of the mortgage money, but he has chosen merely to ask for a declaration, he has omitted to claim a consequential relief which he was entitled to claim and his suit for a mere declaration is, therefore, not maintainable. In support of this view he has relied on the case of Mufti Ali Jafar v. Fazal Husain Khan A.I.R. 1922 All. 349. In that ease all that was held was that a relief by way of a declaration regarding the validity or invalidity of an alienation made by a trustee cornea within the provisions of Clause (h) of Section 92 of the Code of Civil Procedure and a suit in respect of it must be brought in conformity with the provisions of that section and that, therefore, a mare suit for a declaration that the transfer was invalid without the sanction of the Legal Remembrancer was not maintainable. On the other hand, the appellant relied on the case of Nathu Singh v. Gumani Singh (1986) 18 All. 320 which is directly in point. It seems to us that the suit cannot fail on the technical ground that a further consequential relief has not been asked for. The plaintiff has sixty years from the time of the mortgage to redeem the property by tendering the mortgage money. If long before the expiry of that period it turns out that the defendants are denying the title of the mortgagor and are casting a cloud on his title and there is a danger that by lapse of time reliable evidence may disappear, it is open to the plaintiff to bring a suit for a mere declaration even though he is not prepared to pay the mortgage money at that time. This was the view clearly expressed in the case last quoted with which we fully agree. The suit, there fore, cannot fail on this technical ground. The last point taken by the learned Subordinate Judge was that the claim was barred by Section 233(K) of the Land Revenue Act. The Courts below have proceeded on the assumption that Inderjit, the plaintiff's father, was somehow or other bound by the partition proceedings, and if he had been alive, he himself would not have been entitled to maintain the suit. They have then proceeded to consider whether the present plaintiff could also be bound. This they have held to be so even though his name was not actually entered in the revenue papers. On the abstract question of law it is impossible to differ from the view taken by the Courts below. If the effect of the partition proceedings was to bind Inderjit conclusively, it seems to us that the present plaintiff who is a member of a joint Hindu family with him would be equally bound even though his name was not actually entered in the revenue papers. If Inderjit as the head of the family and as the recorded proprietor had full opportunity to object, then the other members of his family may be equally bound. The Courts below, however, have not set forth the necessary facts which would enable us to dispose of this point finally as to whether the effect of the partition proceedings was really such as to operate as a bar to the present case. All that appears at present is that some co-sharers had applied for the partition of the original mahal, Himmat Singh, in which the property now in suit was than situated is khewats Nos. 1 and 7. Inderjit, the father of the plaintiff, was made a party to the partition proceedings. He died during the pendency of the proceedings and the plaintiff was brought on the record in his place at some, probably late, stage in the case and the only other thing that is known is that the property now in dispute was, as a result of the partition allotted in mahal Bhanwar Singh which we understand belongs to the defendants. It is not quite clear whether Inderjit Singh had any share in the original mahal independently of the mortgaged property nor is it clear whether Inderjit was arrayed on the side of the applicanta for partition or was on the side of the non-objectors. It is further not clear whether the. result of the partition was that Inderjit's separate property, if any, (other than the property in suit) went out of Bhanwar Singh mahal. Without these facts having been made clear, it is impossible to say whether there was or was not any express or implied conflict of interest between the plaintiff's predecessor-in-title, Inderjit, and the present defendants. It is, therefore, impossible to decide this appeal without clear findings on the following points:
We accordingly send down the following issues to the lower Appellate Court for determination:
(1) Did Inderjit possess any share in mahal Himmat Singh other than the properties mortgaged which are not in dispute?
(2) If so, did any property of Inderjit go out of a mahal other than mahal Bhanwar Singh?
(3) Did Inderjit die before the expiry of the time fixed for filing objections?
12. The Counsel for the parties are agreed that only fresh documentary evidence should be allowed and no oral evidence be permitted. The lower Appellate Court will allow parties to produce documentary evidence only. The findings should be returned preferably within one month, but if that be not possible then two months. On return of the findings the usual ten days will be allowed for filing objections.