When the plaintiffs attempted to take khas or actual possession of the lands, they were obstructed by the defendants of the second party who claimed occupancy rights therein.
The plaintiffs then instituted the suit out of which the present appeal arises, in the companyrt of the Subordinate Judge, Monghyr, for recovery of possession of the lands from the second party defendants.
It may be stated that the alternative claim for damages against the first party was abandoned by the plaintiffs, and the only relief number claimed is possession of lands as against the second party.
Subsequently, that decree was recalled in a suit by the Official Receiver representing one of the mortgagors and a fresh decree for redemption was passed.
Appeal by special leave from the judgment and decree dated the 7th February 1949 of the Patna High Court in appeal from original decrees No.
It was the second party appearing by companynsel Mr. Tarachand Brijmohan Lal, that vigorously companytested the appeal.
first plaintiff from the mortgagors, and thus, the plaintiffs who were members of a joint Hindu family became entitled to all the interests of the mortgagors in the suit lands.
On 23 12 1913 the remaining extent of 9 acres 17 cents was purchased by the.
In the alternative, the plaintiffs claimed damages against the defendants of the first party, if it was found that the second party bad acquired occupancy rights under a settle ment from them.
230 and 268 of 1945 arising out of the decree dated the 9th day of August 1945 of the Second Court of Subordinate Judge at Monghyr in Title Suit No.
1,600.
Against this judgment, there was an appeal by the defendants to the High Court of Patna, which agreed with the Subordinate Judge that the defendants of the second party were inducted into possession only in 1905 under the lease deed, Exhibit 2 a , and that they were number raiyats settled by the mortgagors prior to 1900.
In Pramtha Nath v. Sashi Bhusan 1 , a permanent lease was granted by a mortgagee after he had obtained a decree for foreclosure.
A transferee from the Official Receiver having subsequently instituted a suit in ejectment against the tenant, it was held that the latter bad acquired a right of occupancy under section 21 of the Act, and that the relief for khas possession companyld number be granted as against him.
The plaintiffs appeal.
Both sets of defendants denied that the lands were kamat lands, or that the defendants of the first party settled the defendants of the second party as raiyats on the land.
107 of 1953.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
In execution of a money decree passed against the mortgagors, 9 acres 6 cents out of the above lands were brought to sale on 11 6 1907 and purchased by Rameshwar Prasad Singh, the undivided uncle of the first plaintiff.
3 to 6, 20 to 25 and 27 to 39.
The defendants of the first party are the representatives of these mortgagees.
40 of 1943.
Tarachand Brijmohanlal, B. C. Misra and S. Barneshwar Prasad, for respondents Nos.
The plaintiffs alleged that the lands were kamat khudkast which had been in the personal enjoyment of Khiran Rai and Firangi Rai and thereafter of the mortgagees and the defendants of the first party by virtue of the sudbharna deeds, Exhibits 2 and 3, that the second party defendants claimed rights as occupancy raiyats under a settlement by the mortgagees, that the settlement was number real or bona fide, and was number binding on the mortgagors.
In 1943 they deposited under section 83 of the Transfer of Property Act the amounts due on the mortgage deeds, Exhibits 2 and 3, in the companyrt of the District Munsif, Monghyr.
The defendants of the first party withdrew the amount, and the mortgages thus became redeemed.
K. Chatterjee, for the appellants.
After redemption, the Official Receiver received rent from the lessee treating him as a tenant on the land.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J. The properties which are the subject matter of this litigation are agricultural lands of the extent of 18 acres 23 cents situate in Mauza Chowki.
They originally belonged to Khiran Rai, Firangi Rai and others, and were usufructuarily mortgaged by them on 10 8 1900 to Babunath Prasad and Babu Misri Lal under two sudbharna deeds, Exhibits 2 and 3, for a sum of Rs.
January 16.
