JUDGMENT

1. This appeal arms oat of a suit brought by the plaintiff-appellant for the redemption of a two-thirds share of Katra Gulab Singh situated in Kashmiri Bazar, Agra, The Katra originally belonged to Dhami Singh who left three sons, Jawala Prasad, Bhawani Shankar and Debi Shunkar, On the 28th November 1877 these three brothers mortgaged two stables and a house situated in Katra Gulab Singh in favour of Sakhden Rai. The mortgage was simple. On the 6th March 1878 the three brother mortgage the said Katra Galab Singh with other properties with possession in favour of Sheikh Abdullah. On the 30th May 1878 two of them, Bhawani Shankar and Jawala Prasad, mortgaged their two-thirds share of Katra Gulab Singh in favour of Durga Prasad.

2. On the 15th August 1879 Sakhdeo Rai sued on his mortgage of the 28th November 1877 without impleading Sheikh Abdullah or Durga Prasad and obtained a decree for sale, in execution of whish the mortgaged property, namely, two stables and a house in Katra Gulab Singh, was sold by auction and purchased by Sheikh Abdullah, the subsequent usufructuary mortgagee. On the 12th October 1879 Durga Prasad sued on his mortgage of the 30th May 1878 without impleading any of the prior mortgagess and got a decree for sale, in execution of which he brought to sale the two thirds share of his mortgagers in Katra Gulab singh and purchased it himself.

3. The present suit has been filed by the plaintiff-appellant, who is the son of Durg Prasad, for the redemption of the usufructuary mortgage of the 6th March 1878 in respect of that two-thirds share. The defendants are the pods of Sheikh Abdullah, One of them declaimed any interest in the mortgage; the other defendant pleaded that they had spent a considerable amount in the repairs and Improvements of the mortgaged property and that a sum of over a lac and seventy-six thousand was due to them under the mortgage. There were other pleas too, with which this appeal has no concern.

4. The Court of first instance held that the contesting defendants had spent Rs. 1,000 in repairs, that they were not entitled to claim the cost of any additions or improvements made by them, and that Rs. 8,343 5 4 were due to them on account of a two-thirds share of Katra Gulab Singh purchased by the plaintiff. It decreed the claim accordingly for redemption subject to the payment of the said amount. On appeal the lower Appellate Court allowed to the defendants a right to redeem the mortgage of the 28th November 1877 on the payment of the amount of the decree obtained en foot of that mortgage by Durga Prasad within a certain date, and further directed that if such payment was not made, it shall proceed to determine upon payment of what amount the plaintiff should be allowed to redeem the mortgage held by the defendants. In effect it recognised the right of the defendants, who had purchased two stables and a house in Katra Gulab Singh in satisfaction of the mortgage of the 28th November 1877, lo redeem the subsequent mortgage of the 30th May 1878 in preference to the plaintiff who by virtue of his purchase claimed a right to redeem the prior usufructuary mortgage of the 6th March 1878.

5. No question of preference is, however, really at issue No right of redemption was claimed by the defendants in their written statement or otherwise asserted in the course of the trial The rights of the original mortgagors have been split up. The defendants have purchased two stables and a house in Katra Gulab Singh in satisfaction of a prior mortgage and they are entitled to retain the same until some person entitled to redeem comes forward to pay the money due on that mortgage, The plaintiff holds the rights of a two of the mortgagors under the mortgage of the 30th May 1878 and has purchase the lights of two of the mortgagors in Katra Gulab Singh in satisfaction of that mortgage, A portion of the rights of the original mortgagors has thus vested in the defendants and another portion in the plaintiff; and the pl