Judgement

This suit was brought to obtain possession of a dwelling-house, land and premises, which had been foreclosed by the Appellant in. giving effect to two deeds of conditional sale and mortgage, called deeds of Bye-bil-wuffa, or Kut-kubala. The principal question raised was, whether the suit was barred by the Regulations of limitation III. of 1793, sec. 14, and II. of 1805, sec. 3, cls. 3 & 4. The Sudder Court held, that as there had been twelve years possession by one of the Respondents, Ram Rutton Rae, the suit of the Appellant was barred.

The Suit arose under these circumstances — Meer Sydoo and Noor Jehan his nekahee wife, were, in 1825, in the possession and enjoyment of a house and land, part of the premises in question, situate in the village of Cossipore, in the suburbs of Calcutta, under a, pottah made out in the sole name of Noor Jehan.

On 23rd of March, 1825, Meer Sydoo and Noor Jehan jointly borrowed of the Appellant the sum of S. Rs. 4,001, in cash, and at the last-mentioned date jointly executed and delivered to him a Kut-kubala or Bye-bil-wuffa (deed of conditional sale) in the following form —" To the high in dignity, Baboo Prannath Chow-dry. This mortgage deed, or Kut-kubala, of the land and garden house, held under a Khirajee-pottah (rent lease), is executed in the year 1231, by Meer Sydoo and Bebee Noor Jehan, nekahee wife of the said Meer, inhabitants of Cossipore. In the village of Cossipore within the jurisdiction of Dihee, Punchannogram, is our dwelling-house, with the garden measuring 14 beegahs and 7 cottahs of land, the annual rent of which is Rs. 38. 10a. 18g. Having mortgaged the said garden house and jumma lands, with the appurtenances, to you, we have received Rs. 4,001, as a loan through Bamchunder Bose, of Cossipore, on which we will pay interest at one rupee per mensem ; the term of payment of the money is three years, from the date of the deed of mortgage, that is, up to 11 Cheyt, 1234. We shall pay the whole of the money with interest at once within this term. If we do not pay the money with interest at once within the term, the sale of the said land, with the appurtenances, will become absolute on the day after the expiration of the term for the said amount, as consideration money, and you being in possession of the said land after the expiration of the term, and having obtained a pottah in your own name, shall, with your descendants, enjoy the proceeds by paying the Government Revenue. The right of alienating the said lands, either by gift or sale, will rest with you ; we shall have no claim or objection. Any deed of payment of money produced by us, other than that of redemption of mortgage, by repayment of the money at once, is null; and if the money should have to be paid by the sale or mortgage of the said land, it will be sold to you at a reasonable rate, or mortgaged, if it will have to be mortgaged. If we sell or mortgage to anybody else, it will be null and void. "We or our heirs shall never raise any objections in violation of these terms ; and should we do so, they will be false and null. Having received the said amount of Rs. 4,001, from hand to hand in ready money, we have of our free will executed this mortgage deed, or Kut-kubala. Dated the 1.1th Cheyt of the aforesaid year."

Sometime afterwards, and on the 4th of May, 1825, Meer Sydoo and Noor Jehan borrowed a further sum of S. Rs. 1,000, from the Appellant; and at the same time respectively executed and delivered to him another Kut-kubala to secure by a like conditional sale of the same dwelling-house, land and premises mentioned in the first Kut-kubala, the repayment to him of the further sum borrowed, together with interest at the same rate, and at the same date (namely, 11 Cheyt, 1234), subject to the like terms and conditions as those respectively specified in the former instrument.

On the 25th of May, 1825, Meer Sydoo died, leaving Noor Jehan surviving, and also two minor sons, Meer Imdad Ally and Meer Lootf Ally,