Bhau Daji Khade Vs Patlu Malu Sable

Bombay High Court 25 Aug 1922 Second Appeal No. 673 of 1921 AIR 1923 Bom 63 : (1922) 24 BOMLR 1157 : 73 Ind. Cas. 862
Bench: Division Bench
Result Published
Acts Referenced

Judgement Snapshot

Case Number

Second Appeal No. 673 of 1921

Hon'ble Bench

Shah, J; Crump, J

Final Decision

Dismissed

Acts Referred

Civil Procedure Code, 1908 (CPC) — Order 2 Rule 2

Judgement Text

Translate:

Lallubhai Shah, Acting C.J.

1. In this case the plaintiff sues to recover possession of one Survey Number, which along with two other Survey Numbers was mortgaged in

1869 to the defendants'' ancestor. In 1911 the present plaintiff as a purchaser of the equity of redemption sued to redeem the mortage of 1869. He

mentioned only two Survey Numbers in that suit omitting the Survey Number now in suit. In that suit a compromise decree was passed as a result

of which on payment of a Bum of Rs. 75, he was to recover possession of the two Survey Numbers mentioned in that suit. He recovered

possession of these two lands after paying the amount.

2. He has now filed the present suit on July 10, 1919, to recover possession of the remaining land alleging that the defendants were in wrongful

possession of that Survey Number. Several issues were raised in the trial Court, but on the facts �as stated above the trial Court dismissed the

suit, holding that the land in suit had not been redeemed, and that the defendant''s possession, therefore, was not wrongful.

3. The learned Assistant Judge in appeal confirmed the decree of the trial Court on the ground that the land now in suit not having been included in

the previous suit the plaintiff''s claim could not be allowed.

4. In the appeal before us, it is urged by Mr. Shingne that after the mortgage amount fixed under the consent decree was paid by his client, the

possession of this property by the defendants became wrongful, as the mortgage was satisfied. He is, therefore, entitled, he contends, to recover

possession of the property. It seems to us that the contention is unsound. In the first place, it is difficult to say that when the sum fixed under the

decree was paid, the whole mortgage was satisfied. It is quite possible that the parties might have fixed the amount at a lower figure in view of the

fact that the plaintiff had omitted to sue in respect of the land now in suit. It is difficult to hold that the possession of this Survey Number which was

rightful under the mortgage became wrongful when the decretal amount was paid.

5. Apart from that, however, it seems to us that it was incumbent upon the plaintiff to sue in respect of all the lands comprised in the mortgage, if he

wanted to recover possession of all the lands. His omission to include the land in suit in the redemption suit seems to be fatal to his present claim

for the possession of that land. In view of the provisions of Order II, Rule 2, he cannot be allowed to sue to recover possession of the land, in

respect of which he must be deemed to have reliquished his claim by omitting to sue in respect of it. It is not suggested before us that the plaintiff

was not aware of this land forming part of the mortgaged lands, nor is it suggested that the omission was due to any inadvertance or mistake on his

part. He may have a remedy by applying to the Court which passed that decree to include that Survey Number in the decree, Whether that

remedy is open to him under the circumstances of this case or not is a matter upon which we express no opinion, It is clear that his present claim

for possession cannot be allowed according to law. We, therefore, dismiss the appeal with costs.