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Dhani Sahu Vs. Raj Mahal Kunwari - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1915All329; 30Ind.Cas.393
AppellantDhani Sahu
RespondentRaj Mahal Kunwari
Excerpt:
ex-proprietary right, relinquishment of, effect of. - - he dismissed the claim of the respondent as regards the remaining 9 bighas, on the ground that she had failed to prove that the appellant held; the result is that the cross-objections also fail......few days after this mortgage the mortgagor executed a deed of relinquishment in respect of his ex-proprietary rights in certain plots of land aggregating 18 big has or so. the first mortgagee brought a suit upon her mortgage impleading the second mortgagee. she obtained a decree, brought the property to sale, and purchased it herself. she obtained formal delivery of possession of the entire 2-annas share. but the appellant declined to give up possession of the 18 bighas odd, the ex-proprietary rights in which had been relinquished by the mortgagor. this is a suit for possession of the nine-pies share including the 18 bighas odd. the first court decreed the claim for the share but dismissed the claim for possession of the plots. on appeal the additional district judge gave the respondent.....
Judgment:

Chamier, J.

1. Sheo Dihal made a simple mortgage of a two-annas share in a village in favour of the respondent. Seven years later he made a usufructuary mortgage of nine-pies out of the two-annas shares in favour of the appellant. A few days after this mortgage the mortgagor executed a deed of relinquishment in respect of his ex-proprietary rights in certain plots of land aggregating 18 big has or so. The first mortgagee brought a suit upon her mortgage impleading the second mortgagee. She obtained a decree, brought the property to sale, and purchased it herself. She obtained formal delivery of possession of the entire 2-annas share. But the appellant declined to give up possession of the 18 bighas odd, the ex-proprietary rights in which had been relinquished by the mortgagor. This is a suit for possession of the nine-pies share including the 18 bighas odd. The first Court decreed the claim for the share but dismissed the claim for possession of the plots. On appeal the Additional District Judge gave the respondent a decree for possession of 9 bighas 6 biswas 5 dhurs and for mesne profits of the same. He dismissed the claim of the respondent as regards the remaining 9 bighas, on the ground that she had failed to prove that the appellant held; possession of those 9 bighas. On behalf of the defendant-appellant it is contended that the respondent is not entitled to possession of any portion of the land, in which the mortgagor became entitled to ex-proprietary rights on the making of the usufructuary mortgage, and that the relinquishment of his ex-proprietary rights by the mortgagor operated for the benefit of the appellant only. In my opinion the learned Judge has taken a correct view of this matter. The mortgagor became entitled to ex-proprietary rights but deliberately relinquished them. No One could prevent him from doing so. The result of the relinquishment was to improve the security held by the mortgagees. In the first instance, no doubt, the relinquishment operated more for the benefit of the second mortgagee than for that of the first mortgagee, because it enabled the second mortgagee to obtain actual possession of land which he could not otherwise have obtained; but, in my opinion, when the property was sold in execution of the decree on the first mortgage the purchaser became entitled to proprietary rights in the whole two annas. The ex-proprietary rights had been carved out of the two-annas share by the law but subsequently ceased to exist. To my mind it is as if the ex-proprietary rights had never come into existence at all, and there is no more ground for refusing to give the purchaser possession of these plots than for refusing to give him possession of any other plot included in the usufructuary mortgage. The appeal, therefore, fails. Cross-objections have been filed by the respondent to the effect that the Court should have decreed possession of the entire 18 bighas and mesne profits of the same. I have been referred to a number of rubkars recorded by the first Court. None of them show that the appellant held actual possession of the whole 18 bighas. They show that the parties elected not to give oral evidence and they state the result of an examination of some of the documentary evidence. No attempt has been made to show me that the documentary evidence proves that all the plots specified at the end of the plaint were in fact in possession of the appellant. The District Judge finds that it is not proved that the appellant held possession of all the plots. I accept his finding. The result is that the cross-objections also fail. Both, the appeal and the cross-objections are dismissed with costs.


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