Lahiri, J.@mdashThis second appeal is at the instance of defendant No. 7 and it is directed against a decree made by the District Judge of Bankura reversing the decree of the Subordinate Judge and decreeing the plaintiffs'' suit in respect of the land of khatian No. 72 of Mouza Dandullah. The plaintiffs instituted the suit for declaration of their title to and recovery of possession of lands included in several khatians including khatian No. 72. Defendant No. 7 is interested only in the land of khatian No. 72 which is the subject-matter of the present second appeal.
2. The plaintiffs'' case is that one Charushila executed a mortgage bond in favour of the plaintiffs'' father Radhanath Ghosh. The plaintiffs obtained a mortgage decree and in execution thereof purchased the land at the auction sale and obtained delivery of possession through court but when they went to take actual possession they were resisted by defendant No. 7. Hence the plaintiffs have instituted the present suit.
3. The defence of defendant No. 7 was that before the mortgage suit by the plaintiffs, the defendant No. 7 had purchased the land of khatian No. 72 at a rent sale held in execution of a rent decree obtained by the landlord and thus she had obtained a paramount title and in the second place she pleaded that at all events she had purchased the equity of redemption and as the plaintiffs had obtained a mortgage decree behind her back she was not bound by the decree and the sale and was entitled to redeem the plaintiffs. But as the plaintiffs'' right to institute a fresh suit in the presence of defendant No. 7 had become barred by limitation, the plaintiffs'' suit is liable to be dismissed against her.
4. On the question of the paramount title of defendant No. 7 both the Courts below have negatived it on the ground that the sale was not a rent sale but a money sale and therefore, the defendant No. 7 acquired an interest in the equity of redemption only and this finding has not been challenged before as. On the question whether she had a right to redeem the plaintiffs the courts below have differed. It is admitted that the defendant No. 7 was impleaded as a defendant in the mortgage suit instituted by the plaintiffs. In that suit she raised a twofold defence. She asserted her paramount title and also challenged the mortgage as invalid and illegal and as fictitious transaction without any consideration. Upon this plea the plaintiffs withdrew the mortgage suit against defendant No. 7 and thereafter obtained an ex parte decree against the mortgagor.
5. Upon these facts the court of first instance held that the withdrawal of the mortgage suit by the plaintiffs against defendant No. 7 left the latter''s right of redemption unaffected and the plaintiffs were entitled to institute a suit for possession against defendant No. 7 provided the mortgage-debt was not time-barred and provided further that the plaintiffs were ignorant of the interest of defendant No. 7 at the time of the institution of the mortgage suit. In coming to this conclusion the learned Subordinate Judge relied upon the principles laid down in the case Nihar Mala Debi v. Saroj Bandhu Bhattacherji (1933) 37 C.W.N. 897, and other cases. The learned Subordinate Judge held further that since the plaintiffs had deliberately left out defendant No. 7 from the mortgage suit in spite of their knowledge of the interest of defendant No. 7 and since the mortgage-debt had become time-barred on the date of institution of the present suit the plaintiffs could not recover as against defendant No. 7. This decision of the learned Subordinate Judge has been reversed on appeal on the ground that the only defence raised by defendant No. 7 in the mortgage suit related to the right of paramount title and as she did not plead her right of redemption in the mortgage suit she was estopped from raising that plea in the present suit.
6. The written statement which was filed by defendant No. 7 in the mortgage suit is Exhibit B (2). Mr. Mukherjee appearing in support of the appeal has argued that on a true construction of the written statement, Exhibit B (2) it should be held that the defendant No. 7 had raised a twofold plea. She undoubtedly claimed a paramount title but she also challenged the validity and legality of the mortgage bond thereby claiming a right to redeem. By withdrawing the suit against defendant No. 7 the plaintiffs deprived her of the opportunity of challenging the validity of the mortgage bond. On going through the written statement, Exhibit B (2), filed by defendant No. 7 in the mortgage suit we have come to the conclusion that the point raised by Mr. Mukherjee is correct and that the District Judge was not right in holding that the appellant did not assert her right of redemption in the mortgage suit. In paragraph 3 of the written statement the defendant No. 7 alleged that the plaintiffs'' claim was barred by limitation. In paragraphs 5 and 6 the defendant No. 7 alleged that the mortgage bond was not validly attested and executed, that it was not validly presented for registration and that in any case it was a fraudulent and collusive transaction without any consideration. In paragraph II of Exhibit B (2) she undoubtedly asserted a paramount title but at the same time it is also true that she challenged the validity and legality of the mortgage bond in the earlier paragraphs of the same written statement. The effect of challenging the legality of the mortgage bond is that the party challenging it is given an opportunity to redeem if that defence is overruled. In view of the fact that the defendant No. 7 specifically challenged the validity and legality of the mortgage bond in the written statement, Exhibit B (2), we hold in disagreement with the learned District Judge that she is not estopped from pleading in the present suit that she was a necessary party to the mortgage suit instituted by the plaintiffs and as the plaintiffs withdrew that suit against her, the defendant No. 7 is not bound by the mortgage decree or the sale held in execution thereof.
7. As the respondents are not represented in this second appeal Mr. Mukherjee has fairly invited our attention to certain decisions which were relied upon on behalf of the plaintiffs in the courts below. The first decision is the decision of the Judicial Committee in the case of Nilakant Banerji v. Suresh Chunder Mullick and others (1885) 12 I.A. 171. At pages 176 and 177 their Lordships pointed out that the only defence raised by the mortgagor in that suit, was a defence of paramount title; an issue was raised on that point and as that issue was quite foreign to the mortgage suit the court ordered that the defendant who had asserted paramount title should be dismissed from the suit. This decision is distinguishable from the facts of the present case on two grounds. In the first place, the defendant No. 7 did not confine her defence to the question of paramount title only but also went on to challenge the legality and validity of the mortgage bond in her written statement and in the second place, the defendant No. 7 had not been dismissed from the mortgage suit by an order of the court but it was the plaintiffs who withdrew the suit as against her upon the defence raised by her in the mortgage suit. The second decision to which Mr. Mukherjee has invited our attention is the decision of this court in the case of Ram Gopal Das v. Jogendra Nath Maity and others AIR (1920) Cal. 688. The head-note of this case runs as follows:--
A decree in a mortgage suit is binding upon a person who having been made a party to the suit was dismissed from it on the ground of having repudiated his right to redeem and set up a paramount title adverse to that of the mortgagor and the mortgagee.
The facts of this case also are very different from the facts of the present case before us. In the reported case as far as we can gather from the judgment the only plea of the defendant was the plea of paramount title and she repudiated her right of redemption but in the case before us the defendant in addition to asserting her paramount title challenged the mortgage bond. For these reasons we think that the two decisions referred to above do not enable us to uphold the claim made by the plaintiffs.
8. The result of the aforesaid discussion is that the decree made by the learned District Judge in favour of the plaintiffs is wrong in law and must be set aside. The appeal is accordingly allowed. The decree of the court of appeal below is set aside and that of the trial court is restored and affirmed. With regard to the costs of the courts below, defendant No. 7 will be entitled to the costs of the two courts below but as there is no appearance on behalf of the plaintiffs in this Court, there will be no order as to costs of this second appeal.
Das Gupta, J.
.I agree.
