A mortgagor can sue for possession of the mortgaged property without payment of the mortgage money, if the person in possession has no interest in the mortgaged property and cannot claim the right of subrogation.

Kanhaiya Singh, J.

1. This is an appeal by defendant No. 1 from the decree of the Additional Subordinate Judge, Patna, dated 27th May, 1955, decreeing the plaintiff-respondents suit for possession of the disputed property. The facts of the case are a bit involved and can be summarised as follows:

2. The present appeal arises out of Title Suit No. 49 of 1951. This suit and Title suit No. 57 of 1949 were brought by the plaintiffs for identical reliefs. Except for the principal defendants the parties are the same. Both the suits were heard together by the Subordinate Judge and were eventually decreed. There is no appeal from the decree passed in Title Suit No. 57 of 1949, and the matter ends there. No reference will be made to the lands involved therein.

3. The subject matter of litigation in the present action (Title suit No. 49 of 1951) was two strips of land forming part of plot No. 309 situate in village Pakhtiarpur. The first strip measures 11 kathas 16 dhurs and 16 dhurkis constituting the northern half of the eastern half and the second strip measuring 91/2 decimals, equivalent to 3 kathas 1 dhur, forms the south-eastern portion of the eastern half, of the aforesaid plot. The plaintiffs have attached to their plaint a map showing the configuration and the subdivisions of the plot. In that map the entire plot No. 309 is divided into two halves western and eastern, the eastern half is indicated by letters ABCD. The first strip of land in dispute k indicated by letters ABEF and the second by letters DFGH. At the time of hearing the defendant appellant laid no claim to the first strip measuring 11 kathas and odd. This appeal is restricted to the second strip measuring 3 kathas 1 dhur, which is shown by letters DFGH.

4. The suit was first filed in the Court of Munsifat Barh on 8th January, 1949. The learned Munsif held that the proper valuation of the subject-mutter of the suit was Rs. 8000 and not Rs. 1500 as stated by the plaintiffs, and, therefore the suit was beyond bis pecuniary jurisdiction. He accordingly returned the plaint on 30th March, 1951, to be presented to a proper Court. It was refiled by the plaintiffs in the Court of Subordinate judge, Patna, on 10-4-1951.

5. Before I proceed further, for proper appreciation of the issues involved, it will be necessary to give below a short genealogy.

GHINA CHOUDHARY

______________|______________

| | |

Darshan Bhikhari Hira

| (died issueless) |

________|____ ____________|_______

| | | |

Babulal Munu Kamleshwari Rampadarath

(deft. 9) (deft. 10) (deft. 3) (deft. 4)

| _________|________

(defendants 9 and 10 | | |

are proform defem- | Nageshwar Rajeshwar

dants first party.) | (deft. 7) (deft. 8)

_____________|___________

| |

Rajendra Sojendra

(deft. 5) (deft. 6)

(defendants 3 to 8 are principle defendants

second party.)

Defendants Nos. 1 and 2 are principal defendants first party and claim to have purchased the disputed land, i.e. 3 kathas 1 dhur, from principal defendants second party. Defendant No. 1 is since dead, an