C.M. Lodha, J.
1. This case has been wrongly described and registered as a second appeal. It ought to have been registered as a miscellaneous appeal from an order of remand under Order 41. Rule 23 C.P.C, by the District Judge, Pali, dated 8-7-67. The office is directed to make necessary correction.
2. The facts giving rise to this appeal by Defendants Nos. 1 to 7 may be briefly narrated, as follows. The plaintiff-respondent No. 1 Smt. Phata filed a suit for possession of two shops in question situated in Pali on the basis of title and alleged that the defendant appellants had occupied the the same with the permission of the plaintiff's mother. This suit was registered as Civil Original Suit No. 28 of 1954 and was tried by the Civil Judge, Pali, who decreed the suit on 27-11-1951, but on appeal by the defendants the suit was dismissed on 4-7-60 by the District Judge, Pali. Smt. Phata filed a second appeal to this Court, but the same was dismissed in limine on 10-10-60. A review application was also filed in this Court but that too was dismissed on 22-10-1960.
3. It may be relevant here to state that during the pendency of the earlier suit No. 28 of 1954, the plaintiff Smt. Phata submitted a certified copy of a mortgage deed dated 18-10-1941 in respect of the two shops in question alleged to have been executed by one Akbar in favour of Gafoor, father of Defendant No, 1 Ashiq Ali, while dismissing the plaintiff's suit in appeal, the learned District Judge, Pali, observed in his judgment (Ex. VI) that the plaintiff Smt. Phata had filed to establish her title to the property in question and that the mortgage deed dated 18-10-1941 alleged to have been executed by Akbar gave a complete lie to the plaintiff's case. It was also observed that the alleged mortgage by Akbar also negatives the case of permissive occupation of the defendants set up by the plaintiff.
4. It appears that the plaintiff Smt. Phata wanted to have second innings to get the property, if she could, and therefore on 11-1-1961 she instituted the present suit in the court of the Civil Judge; Pali for possession of the same two shops on the basis of title. It is more than obvious that such a suit was not maintainable, being clearly barred by res judicata, and therefore, in order to get over this hurdle, an amended plaint was filed on 9-2-62, with a further allegation that the plaintiff had purchased the equity of redemption in respect of the two shops from Akbar by assignment deed dated 26-7-1961 (Ex. 1), and that if the court came to the conclusion that the property in question in fact had been rightly mortgaged by Akbar in favour of the defendant Ashiq Ali's father Gafoor, a decree for redemption of the same may be granted, Defendants Nos. 1 to 6 who are the sons of Gafoor, denied the plaintiff's claim in toto and pleaded inter alia that the suit was barred by res judicata. The trial court framed 22 issues on the pleading of the parties. Issue No. 9 being regarding res judicata was tried as a preliminary issue, After hearing arguments of the parties, the trial court dismissed the suit on 26.11,1965, by holding that the suit was barred by res judicata. The plaintiff Smt. Phata filed an appeal in the court of the District Judge, Pali, who, by his judgment dated 4.7.1960, partially allowed the appeal and held that the plaintiff's claim in the alternative for redemption of the property in question was not barred by res judicata In this view of the matter, the learned District Judge remanded the case to the trial court for proceeding according to law. Aggrieved by this order of remand, the defendants have now come in appeal to this Court.
5. That the suit of the plaintiff to the extent it is based on title is barred by res judicata is not being challenged before this Court. Even the learned District Judge has held against the plaintiff on this score and no grievance has been made against this finding before this Court by an appeal by the plaintiff, and, therefore, the only question that I am called upon to determine in this appeal is, whether the finding of the learned District Judge that the suit for redemption is maintainable is correct ?
6. learned Counsel for the appellant has argued that the learned District Judge clearly fell into an error in coming to the conclusion that the case of action for redemption accrued to the plaintiff on 27,7.1961, and therefore, the suit for redemption is maintainable. In this connection, he has invited my attention to Paras. Nos. 10.16 17 18 & 29 of the plaint which go to show that the plaintiff herself did not admit the ownership of the property in question as being vested in Akbar and has pleaded that the alleged mortgage ' of 18.10.41 was a collusive document. I have gone through the plaint, and I am constrained to observe that it is a highly involved document. Inconsistency in the position of the plaintiff is writ large on it. In the first place, it is stated that the plaintiff is the owner of the property and is entitled to get its possession as such. In the second place, it is alleged that Akbar executed a faked and collusive mortgage deed of this property in favour of Gafoor which he bad no right to do. Then, it is stated that the plaintiff's mother, Smt. Rehmat, before contracting a nata marriage gave possession of the shops and entrusted the title deeds of the same to Smt. Azmat, grandmother of Ashiq Ali with a direction to return the documents and also hand over back the possession of the shops in question to the plaintiff and her sister Smt. Roshan when the latter became major. That is not all. In para No. 18 of the plaint she has pleaded that Akbar was a benamidar mortgagor, meaning there by that the mortgage in fact had been made on her behalf by Akbar had never been in possession of the shops in question The assignment deed (Ex. 1) transferring the equity of redemption in favour of the plaintiff tells an altogether a different tale, as according to this document, the shops in question had been entrusted to Smt. Azmat, widow of Hah' Bux but Gafoor got executed a mortgage deed in his favour by fraud and by under influence and that the District Judge Pali, in the previous suit filed by the plaintiff had held that Akbar in fact was the mortgagor and Gafoor the mortgagee, and therefore, it had become necessary to execute this deed of assignment It may be stated that the learned District Judge, Pali, in his his judgment dated 4-7 60 in the previous suit had never upheld this mortgage In this state of pleadings, it is argued by learned Counsel for the appellant that the allegation of the alleged mortgage by Akbar and a prayer for redemption of the same in the alternative is a complete farce and only a pretext to get out of the judgment of the previous case. It is submitted that no new cause of action has accrued to the -plaintiff and that the suit is for possession of the property by the plaintiff litigating under the same title under which he had been litigating in the previous suit.It is also contend* d that the plaintiff herself did not rely upon the mortgage and wanted it to be declared as collusive and ineffective and therefore it was not open to her to ask for redemption.
7. After examining the pleadings, the relevant documents and hearing learned Counsel for the parties, I cannot help observing that the learned District Judge did not probe into the matter and very cursorily cam' to the conclusion that the suit was maintainable as the cause of action had accrued to the plaintiff after the decision of the pievioust suit He has observed that the claim for redemption is based on the ownership of Akbar and right of the plaintiff in that respect arose on 26-7-61 vide assigment deed (Ex. 1). This observation is not correct. The plaintiff has throughout the plaint asserted her own ownership and has never admitted the ownership of Defendant No. 1 Akbar. Even the assignment deed itself clearly says that Akbar was never the owner of this property. Apart from that, the previous suit for possession was based on title. The present suit is alsa for possession based on title as well as in the alternative for redemption. learned Counsel for the respondents filed to show that the plaintiff is litigating under a different title in the present suit. The claim of the plaintiff in both the casts has been as an ondividual and her individual capacity in the previous suit claiming possession of the property as an owner did not change; merely because in the present suit she came with an allegation that no doubt she was the owner but a faked and collusive mortgage deed hid been written by a third person, and, therefore, redemption of that mortgage may be granted. I am inclined to think that neither the nature of the cause, nor the nature of the relief, nor title of the plaintiff under which she is litigating in the present case are changed merely because the plaint has been couched in the way in which I have described it above. If she had come forward with a case that Akbar was the real owner of the property and the right to redeem the property in dispute accrued to her on the assignment of the equity of redemption by Akbar subsequent to the decision of the previous suit. I can understand that the suit would have been maintainable. But surprisingly enough she sticks to the stand taken by her in the previous suit and asserts that she is the real owner and the alleged mortgage of the property by Akbar in favour of Gafoor was void and ineffective That only means that she is still claiming as an owner of the property.
8. learned Counsel for the respondents no doubt made an ingenious argumant that in the present suit if the plaintiff was able to prove that the defendants were in possession as mortgagees irrespective of the plaintiff's title, they would be estopped from denying their status as mortgagees. But this argument fails to take note of the fact that the plaintiff does not admit the mortgage and consequently the very basis for such a case is non-existent. Besides, it is not the plaintiff's case that the defendants were put in possession of the property by Akbar inlieu of the alleged mortgage. On the other hand, it has been frankly conceded by the respondents' counsel before me that the defendants were already in possess:on of the property before the alleged mortgage of 1941 was executed by Akbar I then fail to under stand how could the plea of estoppel at all be raised in the present case against the defendants, who are not admitted to be the mortgagees of Akbar It sounds rather odd that on the one hand, the plaintiff asserts that there was never a mortgage by Akbar of property in question, and yet she could claim redemption of the property on the basis of that mortgage. She cannot be allowed to blow hot and could in the same breath. It was observed in Jasoda Bai v. Mangal Chand 45 Cal. W.N. 470.,
Though a mortgagee cannot dispute the mortgager' a title to the mortgaged property, yet if a person on whose behalf, among others, the mortgage deen was signed tries to get out of the mortgage on the plea that he was not a mortgager and the mortgagee accepts the position, the latter is not prevented thereafter from disputing such person's title, nor can such person turn round and assert for a different purpose that he is a mortgagor.
9. I am also in clear in my mind that no rule of estoppel can operate against the defendants in the present case.
10. Again, in Mt. Rajana v. Musaheb Ali AIR 1937 Oudh. 4321, it was obselved that-
The rule of estoppel that a mortgagee is not entitled to dispute the title of the mortgagor cannot be invoked in a case where the mortgagor's suit for possession is not based on the mortgage but is one in repudiation of the mortgage.
I may here also state that no plea in this form was raised by the plaintiff in the plaint. Th case set up in the plaint was that the defendants are estopped on account of the judgment of the previous suit from challenging their position as mortgagees. As I have already said obove, this is altogether a wrong inter-pietation of the judgment of the learned District Judge dated 4.7.1960 He had never upheld the mortgage. Thus there is no substance in the contention of the learned Counsel for defendants.
11. There is yet another facet of the case from which the same conclusion can be arrived at, and it is this, that if the plaintiff wanted to rely on the tight of redemption in the alternative, then it was her duty to have taken this ground in the previous suit. The alleged mortgage deed of 18.10.41 by Akbar was produced in the previous suit on 4.4.57. This is a matter which might and ought to have been made a ground of attack in the former suit, and since the plaintiff did not do so, such a matter must be deemed to have been given up by her. Thus, I am also of the view that at any rate, the present suit is barred by constructive res judicata.) The learned District Judge is not correct in his observation that the cause of action for the present suit accrued to the plaintiff on 26.7.61 when the deed of assignment by Akbar was executed in her favour. As already mentioned above, the plaintiff herself has stated that Akbar had no right in the property and the deed itself speaks aloud that the plaintiff was the owner of the property and that: Akbar had never executed the alleged mortgage deed of his own free will and in his own right. In other words, it, is only an acknowledgement by Akbar of the plaintiff's ownership to the property in question which is neither here nor there. Merely because Akbar executed this deed after the decision of the previous suit acknowledging the plaintiff's ownership to the property and admitted that the alleged mortgage deed of 1941 executed by him was a faked document, it cannot give rise to any fresh cause of action in favour of the plaintiff.
12. Looked at from any angle, the present suit is completely barred on account of the judgment of the learned District Judge dated 4.7.60 in the previous litigation between the parties with respect to this very property and the learned District Judge was in error in holding that the suit is maintainable in past and in remanding the case to the trial court.
13. In the result, I allow this appeal, set aside the judgment of the learned District Judge, Pali dated 8.7.67. and restore the judgment and decree of the trial court and hereby dismiss the plaintiff's suit as being not maintainable. In the circumstances of the case, the parties are left to bear their own costs.