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Sami Nath Singh and anr. Vs. Thakur Prasad Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All309
AppellantSami Nath Singh and anr.
RespondentThakur Prasad Rai and ors.
Cases ReferredRadha Krishna Chanderji v. Ram Bahadur
Excerpt:
- - in that case, the persons whom the plaintiff in the mortgage suit failed to implead, wore the persons to whom a portion of the mortgaged property had been transferred by the mortgagor before the date of the institution of the suit for sale......pal, defendant no. 2. thereafter, on the 10th of february 1912 the plaintiff-respondent obtained a final decree on the basis of the preliminary decree of the year 1910, as against defendant no. 1 and he did not implead in those proceedings sukh deo pal. on the 28th of april 1913, after the final decree had been obtained by the plaintiff, sukh deo pal, transferred the 10 gandas share purchased by him to defendants nos. 3 to 5. the final decree for sale obtained by the plaintiff was put into execution and the entire mortgaged property was put to sale and purchased by the plaintiff on the 29th of august 1919 and formal delivery of possession was made over to the plaintiff on the 1st of november 1919. having got formal delivery of possession, the plaintiff applied to the revenue court for.....
Judgment:

Iqbal Ahmad, J.

1. This is a defendants' appeal and arises out of a suit for possession of a 10-gandas zemindari share in village Chhatunan.

2. There is no controversy about the facts. Parkash Rai, the father of Defendant No. 1, mortgaged a 12-gandas share to the plaintiff who, on the basis of that mortgage, obtained a preliminary decree for sale on the 9th of December 1910. To that decree only Defendant No. 1 was a party. After the passing of the preliminary decree, viz., on the 20th of July 1911, Defendant No. 1 sold a 10-gandas share, out of the 12-gandas share mortgaged to Sukh Deo Pal, Defendant No. 2. Thereafter, on the 10th of February 1912 the plaintiff-respondent obtained a final decree on the basis of the preliminary decree of the year 1910, as against Defendant No. 1 and he did not implead in those proceedings Sukh Deo Pal. On the 28th of April 1913, after the final decree had been obtained by the plaintiff, Sukh Deo Pal, transferred the 10 gandas share purchased by him to Defendants Nos. 3 to 5. The final decree for sale obtained by the plaintiff was put into execution and the entire mortgaged property was put to sale and purchased by the plaintiff on the 29th of August 1919 and formal delivery of possession was made over to the plaintiff on the 1st of November 1919. Having got formal delivery of possession, the plaintiff applied to the revenue Court for mutation of names as against the share purchased by him, but his application, quo the 10 gandas share in the hands of Defendants Nos. 3 to 5, was rejected, on the objection of the said defendants; hence the plaintiff filed the suit giving rise to this appeal for possession of that share.

3. The defence to the suit was that Sukh Deo Pal, the vendee under the sale deed of the 20th of July 1911 was a necessary party to the mortgage suit, and the plaintiff not having impleaded him, the final decree and the purchase made by the plaintiff did not entitle the plaintiff to a decree for possession as against Defendants Nos. 3 to 5 who were the successors-in-title of Sukh Deo Pal, Defendant No. 2. It was further urged in the lower appellate Court that the suit was time barred.

4. The pleas taken in defence were over ruled by the trial Court and the plaintiff's suit was decreed and the decree of the trial Court has been affirmed on appeal by the lower appellate Court.

5. In appeal before me the decree of the lower appellate Court is assailed on two grounds. It is urged that notwithstanding the passing of the preliminary decree on the 9th of December 1910, the mortgage suit continued down to the date of the passing of the final decree, and that it was incumbent on the plaintiff to implead Sukh Deo Pal in that suit, and his omission to do so renders the final decree not binding on Sukh Deo Pal. It is then urged that if Sukh Deo Pal is not bound by the final decree neither he nor Defendants Nos. 3 to 5 can be bound by the purchase made by the plaintiff in execution of that decree. I am unable to agree with this contention. In mortgage suits lis pendens continues till a final decree is made and the mortgagee or the auction-purchaser, as the case may be, is placed in possession.

6. This was the view taken by this Court in the case of Parsotam Narain v. Chheda Lal [1906] 29 All. 76. The purchase made by Sukh Deo Pal could not, in view of the provisions of Section 52 of the Transfer of Property Act, adversely affect the rights of the plaintiff under the decree in the mortgage suit. By that decree the plaintiff had a right to put to sale the equity of redemption. This right of the plaintiff, notwithstanding the transfer pendente lite by Defendant No. 1 remained intact. By executing the final decree for sale and purchasing the property, the plaintiff acquired a complete title to the equity of redemption and Sukh Deo Pal cannot be allowed to ignore the rights acquired by the plaintiff by the purchase in execution of the final decree. The learned Counsel for the appellants has placed reliance on the case of Hargu Lal Singh v. Gobind Rai [1897] 19 All. 541. That case, in my opinion, has no application to the present case. In that case, the persons whom the plaintiff in the mortgage suit failed to implead, wore the persons to whom a portion of the mortgaged property had been transferred by the mortgagor before the date of the institution of the suit for sale. Obviously, those transferees having acquired an interest in the equity of redemption prior to the institution of the suit, were entitled to have an opportunity of redeeming the mortgage, and this opportunity not having been given to them by the plaintiff of that suit, it was held by this Court that they were unaffected by the decree to which they were no parties.

7. In this case the same cannot be said about the right of Sukh Deo Pal, inasmuch as, as observed above, his rights were affected by the principle enunciated in Section 52 of the Transfer of Property Act. Then it is argued by the learned Counsel for the appellants that adverse possession as against the plaintiff-respondent commenced to run from the 20th of July 1911, on which date-Defendant No. 1 transferred the share in dispute to Sukh Deo Pal, and the present suit, not having been filed within 12 years from that date, is time-barred. In my opinion, there is no force in this argument. The plaintiff became entitled to possession of the property, after the purchase made by him, that is, in 1919 and as against the mortgagor he will have 12 years for a suit for possession from the date of the formal delivery of possession to him, that is, from the 1st of November 1919. The present suit was filed much within 12 years of the last mentioned date, viz., on the 21st of July 1923. The right given to the plaintiff-respondent by the final decree for sale was the right to sell the equity of redemption, and if so permitted by the execution Court, to purchase it himself. This right could not, in view of the provisions of Section 52 of the Transfer of Property Act; be adversely affected by a transfer during the pendency of the mortgage suit.

8. But it is urged that formal delivery of possession is not sufficient to interrupt the adverse possession as against the persons who are not parties to the proceedings in which such possession is made over, and in support of this proposition reliance is placed on the case of Radha Krishna Chanderji v. Ram Bahadur [1918] 22 C.W.N. 330. In the present case obviously the plaintiff-respondent could not be entitled to possession of the property up to the 29th of August 1919, and as such it is difficult to understand how the defendants could prescribe a title to the property by adverse possession as against the plaintiff who was not till the date last mentioned entitled to actual possession of the property. The possession of the defendants was in pursuance of a transfer pendente lite and that possession must yield to the rights of the plaintiff as ultimately worked out under the final decree for sale.

9. For the reasons given above, in my opinion, the judgments of the Courts below are right and ought to be affirmed. Accordingly I dismiss the appeal with costs including in this Court fees on the higher scale.


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