An absent party has the right to redeem but cannot sue in ejectment.

JUDGMENT

1. This is an appeal by the plaintiff which arises out of a suit by the plaintiff for recovery of possession of certain lands. His case shortly stated may be summed up in this way. In 1308 B.S. Defendants Nos. 4 to 8 gave the land in dispute with other lands in usufructuary mortgage to the plaintiff for 15 years, which was to remain in force till the end of 1322 B.S. In the year 1317 B.S. those defendants gave a second mortgage of those lands to Defendant No. 3 who was their landlord. The mortgagors after the execution of the usufructury mortgage in favour of the plaintiff remained in possession of the property as lessees under the plaintiff. The mortgagors defaulted in payment of the rent due to the plaintiff who obtained some rent decrees as against them. In the year 1321 B.S. the plaintiff purchased 4f bighas out of the mortgaged lands in satisfaction of his rent decrees and for some outstanding rent due to him for the previous period. In 1326 B.S. Defendant No. 3 brought a suit on his mortgage, but in that suit he did not implead the plaintiff as party defendant. Defendant No. 3 obtained a mortgage decree and purchased the entire 9 bighas of land himself in execution of that decree. In the year 1328 Defendants 1 and 2 dispossessed the plaintiff from the suit land, as lessees of Defendant No. 3. The plaintiff now seeks to recover possession of the land on the ground that he was not bound by the mortgage decree or the sale thereunder and those defendants had no right to dispossess him.

2. In the Court of first instance the plaintiff was asked whether he was willing to redeem the Defendant No. 3. Ha declined to do so and it seems that in the lower appellate Court he also persisted in retaining that position. In this Court also the learned vakil for the appellant, who has argued his case very carefully, has informed us that his client is not willing to redeem the Defendant No. 3. The trial Court made a decree which is somewhat difficult to understand. He made a decree in favour of the plaintiff directing the Defendant No. 3 to redeem the plaintiff' for what is said to be the unexpired term of the usufructuary mortgage. From that decree the plaintiff appealed and the defendants preferred cross-objections. The learned Subordinate Judge dismissed the appeal of the plaintiff and also the cross-objections and affirmed the decision of the Munsiff. The plaintiff appeals to this Court and the position taken on his behalf is that he was entitled to the present possession of the property and having been wrongfully dispossessed by the principal defendants, he was entitled to be put into possession. The defendants have also advanced cross-objections against the decree of the Subordinate Judge and their position is that the plaintiff had no subsisting right to recover possession and his suit should be dismissed.

3. We have now to consider whether the plaintiff, who repudiates his liability to redeem the defendants, is entitled to recover possession on the strength of his purchase of the equity of redemption in a portion of the property in the year 1321 B.S. The plaintiff denied the validity or the bona fides of the mortgage under which Defendant No. 3 claimed. But it has been found by both the Courts below that the transaction is valid and binding on the parties to it. The question then is whether a purchaser of a portion of the mortgaged property from the mortgagor subsequent to the mortgage, who was not made a party to the mortgage suit but who has been ousted from the possession of the mortgaged property by the purchaser in execution of the mortgage decree, is entitled to recover possession on the basis that the execution purchaser is a trespasser. There has been some divergence of opinion in this Court on the question. The contention of the learned vakil for the appellant finds support in two cases : Grish v. Iswar 4 C.W.N. 452 and Habibullah v. Jugdeo Singh [1901] 6 C.L.J. 609. Those cases, however, are not in accordance with th