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NaraIn Rao Kalia and ors. Vs. Musammat Manni Kuer - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All230; 66Ind.Cas.394
AppellantNaraIn Rao Kalia and ors.
RespondentMusammat Manni Kuer
Cases Referred and Gokul Singh v. Siheb Singh
Excerpt:
.....with the maharaja of benares in 1885, and it was also contended in the alternative that as the plaintiff had already transferred his rights in the equity of redemption to the maharaja of benares, even if a separate suit could lie for redemption, the suit of the maharaja of benares having failed, lalji singh could not bring such a suit until he had got bask by conveyance from the maharaja of benares the right which had been trasferred to him by the agreement of 1885, on the last occasion when the appeal same on for hearing before us we referred the following issue of fact to the court below:.....by the plaintiffs. the defendants who are now recorded as zemindars, sued to eject the plaintiff, lalji singh, from a certain holding under section 58 of the tenancy act. the plaintiff, lalji singh, pleaded in defence that he was the real owner of the said holding, that the possession of the defendants was merely that of mortgagees on his behalf, and that they had, therefore, no right to bring a suit for his eject-ment. on the 3rd of february 1916, the revenue court referred him to the civil court to have his title declared, and hares he brought the present suit. the plaintiff's allegation was that the defendants were purchasers of mortgagee rights and that they had acknowledged the mortgage in the beginning of the settlement of 1882. the defendants pleaded in reply that the suit was.....
Judgment:

1. This is a defendants appeal arising oat of a suit for a declaration of title as mortgagor by the plaintiffs. The defendants who are now recorded as Zemindars, sued to eject the plaintiff, Lalji Singh, from a certain holding under Section 58 of the Tenancy Act. The plaintiff, Lalji Singh, pleaded in defence that he was the real owner of the said holding, that the possession of the defendants was merely that of mortgagees on his behalf, and that they had, therefore, no right to bring a suit for his eject-ment. On the 3rd of February 1916, the Revenue Court referred him to the Civil Court to have his title declared, and hares he brought the present suit. The plaintiff's allegation was that the defendants were purchasers of mortgagee rights and that they had acknowledged the mortgage in the beginning of the Settlement of 1882. The defendants pleaded in reply that the suit was barred by six years' rule of limitation, that the mortgage was made by the plaintiff's predecessor-in title on the 27th of March 1819, to Gar Dayal, that Gur Dayal transferred his rights to one Ram Kumar Mahant by two deeds of the 19th of August 1868, and the 1st of September 1869, that the defendants' predecessor-in-title purchased these rights at auction on the 21st of November 1874, that in the meanwhile on the 20th of March 1854, the Maharaja of Benares had purchased the rights of some of the mortgagors, that on the 22nd of May 1885 the Maharaja of Benares bad taken an agreement from the remaining mortgagors, that is, those whose rights were not purchased, enabling him to bring a suit to redeem the mortgage promising in exchange some rights to the remaining mortgagor, that on the 10th of June 1885 the Maharaja of Benares brought a suit for redemption and to this snit the present plaintiff, Laiji Singh, was made a defendant, that in the written statement Lalji Singh and others said that they had relinquished all their rights in favour of the plaintiff, Maharaja of Benares, and bad been unnecessarily impleaded, that this suit was dismissed by the First Court but the High Court remanded it and it was decreed after remand, that the Maharaja was given time to deposit the mortgage-money but be failed to deposit it in time, and bence the snit formally stood dismissed and the Maharaja's right of redemption disappeared, that on the 6th of March 1896 the mortgagees applied for mutation of names and succeeded and the plaintiff's name was removed from the column of owners and entered in the column of tenants, that in the year 1909 the mortgagees rued the plaintiff for enhancement of rent, that Lalji Singh, the present plaintiff, then set up a defence that he was not a tenant but a mortgagor, that this defence was repelled ard on the 29th of April 1910, rent was enhanced, that in the year 1913 Lalji Singh, plaintiff, sued the contesting defendants for redemption of a mortgage of Rs. 100 which was a different mortgage, but the suit was dismissed ard the dismissal was ultimately confirmed by the High Court on the 14th of July 1915, ard that now the plaintiff brought the present suit which did not lie, On these pleadings the parties went to trial, The first Court came to the conclusion that this suit, which had been brought within three months of the order of the Revenue Court passed under Section 199 Clause (a) of the Tenancy Act, was within time. But it held that the plaintiff had failed to prove specifically the mortgage and, therefore, was not entitled to a declaration. On these findings it dismissed the plaintiff's suit. The plaintiff went up in appeal and the learned Judge of the lower Appellate Court came to the conclusion, that the verification of the wajib'ul-are, of 1882 by the Mukhtar-i-am of the defendants-mortgagees amounted to an acknowledgment of liability within the meaning of Section 19 of the Limitation Act, and that the suit was within time and in the result he gave the plaintiff the declaration he wanted. The defendants come here in second appeal. The first plea taken by their learned Advocate is that there was no subsisting mortgage for which the plaintiff could be granted a declaration. The next contention raised on behalf of the appellants was that the plaintiff had lost his equity of redemption by virtue of the agreement into which he entered with the Maharaja of Benares in 1885, and it was also contended in the alternative that as the plaintiff had already transferred his rights in the equity of redemption to the Maharaja of Benares, even if a separate suit could lie for redemption, the suit of the Maharaja of Benares having failed, Lalji Singh could not bring such a suit until he had got bask by conveyance from the Maharaja of Benares the right which had been trasferred to him by the agreement of 1885, On the last occasion when the appeal same on for hearing before us we referred the following issue of fact to the Court below: 'Whether Lalji Singh, the present plaintiff-respendent, had at the date of the suit any rights left in the equity of redemption.' The learned Judge of the Court below found that there was no acknowledgment in the Settlement of 1812 as it was not shown that the Mukhtar-I-am of the mortgagees who verified the waiib-ul-arz was duly authorised to acknowledge the liability within the meaning of Section 19 of the Indian Limitation Act. He also found that whatever right Lalji Singh had in the equity of redemption, it was not lost because of the transfer of 1885, We agree with the first finding that it cannot be assumed that a mukhtar-i-am has power to acknowledge liability within the meaning of Section 19 of the Indian Limitation Act but that such a liability can only be fattened upon the principal by a person duly authorised in this behalf, that is, who has been given authority to make such an acknowledgment of liability. In this connection, nee the Privy Council decision in Beti Maharani v. Collector of Etawah (1) 17 A. 198 : 22 I. A. 31 : 6 Sar. P. C. J. 551 : 8 Ind. Dec, (N. S.) 452, and Gokul Singh v. Siheb Singh (2) 38 Ind. Cas. 162 : 15 A. L. J. 121, In this case there is nothing to show that the Mukhtar-i-am who verified the wajib-ul-are in 1885 was authorised to admit the liability of the mortgagees to the mortgagors. On this finding of the lower Appellate Court this appeal must succeed. We allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs in all Courts including in this Court fees on the higher scale.


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