1. The facts in this case as they have been laid before us are as follow?: One Ghafar Ali defendant No. 3 held a taluk of ten annas of a certain estate and a howla in the remaining six-annas. We are informed by the learned Pleader for the respondents that the lands in the taluk are entirely separate and distinct from the lands in the howla. The land in suit lies within the taluk and not within the howla . In 1891 Ghafar Ali mortgaged certain land to defendant No. 1, describing it as included within the boundaries assigned in the plaint to the land in suit and also as being his mcdofat howla lying within the whole 16 annas of the estate. In due course the defendant No. 1 sued upon his mortgage, obtained a decree, sold the land in execution and purchased it himself. Three years later Ghafar Ali sold this land as being included in his taluk to the plaintiffs. The plaintiffs sued for recovery of possession. The suit was dismissed by the Mnusif. On appeal the learned District Judge held that the plaintiffs were entitled to succeed. He thought that the description of the land as the howla land of Ghafar Ali was fatal to the first defendant's rights. He remarks: 'the first defendant is entitled by preference only to such interest as is mentioned in his sale certificate and mortgage deed, and if that particular interest is found to be non-existent, he cannot claim a totally different interest which had not been mortgaged and which had already been purchased by a third party.' With this view of the learned District Judge we are unable to agree. The ambiguity in the description of the land mortgaged to the first defendant is in many ways analogous to the ambiguity described in the illustration to Section 97 of the Evidence Act; and it is open to the first defendant to show what was actually mortgaged to him. Ghafar Ali certainly had a howla tie also certainly owned the land included in the boundaries specified in the mortgage deed. If in the mortgage to the 1st defendant he described it both as his howla right and as included within those boundaries, it was open to the first defendant to show what actually Ghafar Ali intended to mortgage to him, and if this question is gone into only one answer is possible, for it is nobody's case that Ghafar Ali ever intended to mortgage to the first defendant any howla land of his other than that included within those boundaries. It seems to us that the inference which must inevitably be drawn from the admitted facts is that Ghafar Ali intended to sell and did sell the land included within the boundaries of the mortgage bond to the first defendant.
2. The learned Pleader for the respondents faintly suggests that the land in suit was not the land included, in the boundaries mentioned in the mortgage bond. But it is quite clear on the pleadings in the case (particularly paragraph No. 6 of the plaint), from the statement of issues and from the judgment of the District Judge that the identity of these lands has never been disputed or been in issue between the parties. They went to trial on the assumption that these lands were the same.
3. Secondly, the learned leader for the respondents argued that Ghafar All's mortgage to the first defendant must have been fraudulent. If indeed Ghafar Ali had intended to defraud the first defendant and to mortgage to him properly which had no real existence at all, the mortgage might in that case have no legal validity, and although Ghafar Ali might be estopped from contesting it, that estoppels might not bind the plaintiffs in this case who were innocent purchasers from him. It is not necessary, however, to discuss or decide this point, because it appears perfectly clear that this question whether the mortgage to the 1st defendant was or was not fraudulent, has never been raised. Both the issues and the judgments of the Courts below thaw that the geneses and vahory of the mortgage to the first defendant were never disputed on the ground that it was the result of any fraud on the part of Ghafar Ali. That being so, the argument of the learned Pleader supporting the judgment of the learned District Judge on the ground that the mortgage was fraudulent cannot be allowed to prevail.
4. We are informed that no appeal was lodged in the rent suit which was heard in the Munsif's Court along with the title suit that has led to the present appeal. We are, therefore, somewhat surprised to find that the present decree includes an order affecting the disposal of that rent suit, which was not under appeal. So much of the decree as relates to the rent suit must be expunged.
5. In the title appeal for the reasons we have given above, we think that the view of the learned District Judge is erroneous and accordingly allow the appeal and direct that the suit be dismissed as against the first defendant.
6. The defendant No. 1 is entitled to his costs in all the Courts.