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PATNA HIGH COURT
Rai and Raj Kishore Prasad JJ.
Sheodhyan Singh
Versus
Mt.Sanichara Kuer
A.F.D.D. No. 483 of 1947 ;
Decided On : OCTOBER 10, 1955
AUCTION SALE - MISTAKE IN DESCRIPTION OF PROPERTY - EFFECT - MORTGAGE SUIT - PRIOR AND SUBSEQUENT MORTGAGEES NOT MADE PARTIES - EFFECT - REDEMPTION BY VOLUNTEER - EFFECT - SUBROGATION - RIGHT OF.
Fact of the Case:
The plaintiffs brought a suit for a declaration of title and possession over certain properties, alleging that the defendants had no title thereto. The defendants claimed title to the properties through an auction sale held in execution of a mortgage decree obtained by them against the plaintiffs' predecessors-in-interest. The plaintiffs contended that the auction sale was invalid due to a mistake in the description of the properties in the final decree and the sale certificate, and that certain prior and subsequent mortgagees, who were not made parties to the mortgage suit, were entitled to redeem the properties.
Finding of the Court:
The court found that the mistake in the description of the properties in the final decree and the sale certificate was a mere misdescription, and did not affect the title of the defendants. The court also found that the prior and subsequent mortgagees, who were not made parties to the mortgage suit, were not entitled to redeem the properties, as they were not in possession of the properties at the time the mortgage suit was instituted.
Issues: 1. Whether the mistake in the description of the properties in the final decree and the sale certificate affected the title of the defendants? 2. Whether the prior and subsequent mortgagees, who were not made parties to the mortgage suit, were entitled to redeem the properties?
Ratio Decidendi: 1. The court held that the mistake in the description of the properties in the final decree and the sale certificate was a mere misdescription, and did not affect the title of the defendants. The court relied on the principle that if there is a property existing and identifiable, accurately described and fully identified in the schedule, but in some respects it is misdescribed, it will be a case of misdescription, which would be treated as a mere irregularity, and it will not affect the title of the purchaser. 2. The court held that the prior and subsequent mortgagees, who were not made parties to the mortgage suit, were not entitled to redeem the properties, as they were not in possession of the properties at the time the mortgage suit was instituted. The court relied on the principle that a person, who discharges a mortgage debt, is not entitled to the benefit of the security held by the mortgagee, unless he is a surety to the debt, or has made the payment under an agreement with the debtor or creditor that he should receive and hold an assignment of the debt as security, or stands in such a relation to the mortgaged premises that his interest cannot otherwise be protected.
Final Decision: The appeal was partly allowed. The plaintiffs' suit in respect of one of the plots was dismissed, and the decree of the lower court was modified accordingly. The plaintiffs were awarded future mesne profits. The plaintiffs' claim for the price of sugarcane was disallowed. Each party was directed to bear its own costs of the appeal.
Raj Kishore Prasad, J.
1. This is an appeal on behalf of defendants 1 to 8, who are described as defendants 1st party in the suit, out of which the present appeal arises against the judgment and decree dated 24-9-47 of Mr. S. Saghir Hussein 1st Additional Subordinate Judge at Arrah, decreeing the suit of the plaintiffs respondents 1 to 3.
2. The plaintiffs suit was for a declaration that the properties mentioned in Schedule A of the plaint belonged to them, and the defendants first party, who are the appellants before this Court, had got no title thereto, and as such the possession and occupation of defendants first party were wrongful.
3. The plaintiffs case was that defendant 1 on 14-7-20 executed a mortgage bond in favour of the defendant 9. On the basis of this mortgage bond the defendants 2nd party, who are members of a joint Hindu Mitakshara family with defendant 9 as its karta, obtained in 7-8-35 a final mortgage decree against defendants first party, who also form a joint Mitakshara Hindu family with defendant 1 as its karta, and in execution of that decree purchased the properties mortgaged to them on 10-2-36, and got delivery of possession, over the same through Court on 20-6-36, and thereafter the defendants 2nd party sold the lands in suit, which are 8.90 acres of raiyati lands, under a registered sale deed dated 16-6-43 executed by defendants 9 and 10 in favour of the. plaintiffs, and thereafter they came in possession of the same, but subsequently the defendants first party began to create trouble against the plaintiffs., which led to a proceeding under Sec.144, Criminal P.C., which was decided on 9-1-44 in favour of the plaintiffs, and another, proceeding under Sec.107, Criminal P.C., in which the defendants first party were bound over, and thereafter in November 1945 the defendants first party dispossessed the plaintiffs from the lands mentioned in Schedule A of the plaint.
The plaintiffs therefore, brought the present suit on 9-7-46 or a declaration of title and possession, and also for recovery of Rs. 2,534-8-0 as past mesne profits and Rs. 400 as value of the sugar-cane alleged to have been looted by the defendants first party on 5-4-45, which led to their prosecution under Sections 143 and 379, I.P.C., in which they were ultimately acquitted. The plaintiffs further prayed for future mesne profits till the date of recovery of possession.
4. The defendants first party appeared in the suit, and filed a joint written statement on 4-11-46, and contested the suit. Their main defence is to be found in paras 12, 13, 22 and 23 of their written statement. The substance of their defence was that, when defendant-9 wanted to take possession of the lands already sold and purchased by them in execution of their mortgage decree the defendants first party objected to their taking possession of the property and as such there arose a dispute between the defendants first party and defendant 9. Ultimately there was an arbitration in which it was decided that defendant 9 should take Rs. 2,500 by instalments in respect of the lands purchased at auction, and leave the lands in possession of defendants first party, and accordingly the defendants first party paid Rs. 200 as the first instalment, out of Rs. 2,500, to defendant 9 on 28th Jeth, 1936, corresponding to 3-8-36, and defendant 9 wrote out a receipt for the payment of Rs. 200, which was marked Ex. G in the suit.
The defendants first party thereafter paid some more instalments amounting to Rs. 800, but when they went to pay the sixth instalment in 1941, defendant 9 refused to accept it at the instigation of plaintiff 1, which led to a proceeding under Sec.144, Criminal P.C., in which the defendants first party were found in possession, and the order under Sec.144 was made absolute against the defendants second party. The defendants first party, therefore, said that they were and are always ready to pay the remaining amount of Rs. 1,500 to defendant 1 as settled by the
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