P L D 1952 Dacca 263 (PLP)

Tapendra Kumar Pal for Appellants. Sabita Ranjan Pal for Respondents. CHOWDHURY, J.‑

This is an appeal at the instance of the plaintiff in a suit for possession of the disputed land on the ground that the usufructuary mortgage has been satisfied under section 34 of the Sylhet Tenancy Act as well under section 9 of the Assam Money Lenders Act, 1943. Plaintiff's case shortly stated is as follows : The suit land belonged to pro forma defendants Nos. 2 to 4 in jote right who gave it to defendant No. 1 in usufructuary mortgage in 1334 B. S., corresponding to 1927‑

28. Plaintiffs purchased the suit land from defendants Nos. 2 to 4 on the 7th Aswin, 1350 B. S., for Rs. .650. His case is that the usufructuary mortgage is satisfied by operation of law and he is entitled to get possession of the same from the defendants. Hence he filed the present suit for 'declaration of his title and for possession of the suit land. The suit was contested by defendant No. 1 alone. His defence is that there was no mortgage and the suit land originally belonged to Keshab Ram and Anti Ram, that after' Keshab Ram's death it was partitioned among the heirs of Keshab Ram and Anti Ram's heirs and Anti Ram's widow Kasturi got it and from Kasturi the defendant No. 1, purchased it by an oral sale but on the death of the widow the rever sioner Jamini claimed the property and the defendant again purchased the disputed land, from Jamini by a registered Kabala and that by virtue of his purchase he is in possession of the property for more than 12years and the claim of the plaintiff is barred by limitation. Both the Courts below decreed the suit in part holding that plaintiff's vendors, the defendants Nos. 2 to 4 had only 8 annas share and the remaining 8 annas share belonged to Anti Ram's widow Kasturi which was obtained by the rever sioner Jamini, from whom defendant purchased it by a registered Kabala and allowed the plaintiff joint khas posses sion with defendant No.

1. Plaintiffs filed the present appeal against the aforesaid judgment and decree of the lower appellate Court. Mr. Tapendra Kumar Pal appearing on behalf of the appellants raised only one point, namely, that once the defendant No. 1 entered into possession as and explain his possession with reference to the alleged sub sequent acquisition of title in the mortgage land till he vacated the land as a mortgagee in view of the finding of both the Courts below that there was a mortgage and defendant. No. 1 was put into possession as a mortgagee. Mr. Sabita Ranjan Pal, the learned Advocate on behalf of the respondents, contends that though defendant No. 1 as a mortgagee, cannot deny the title of the mortgagor but he can certainly set up a paramount title and the Court can decide it in this suit, which really involves a decision on the question of title. The learned Advocate for the appellants relied on the case of Sombhai Adesang v. Jagjivan Dayaram and others A I R 1928 Bom. 380, and also on the case of Mahamaya Debi v. Haridas Haldar I L R 42 Cal. 455‑20 C L J

183. It is true, no doubt, as pointed out in the case reported in A I R 1928 Bom. 380, that a mortgagee cannot deny the title of the mortgagor, for the purpose of the mortgage nor can the mort gagor derogate from his grant so as to defeat his mortgagee's title. That case followed the decision in the case reported in I L R 42 Cal.

455. Nobody disputes the proposition that a mortgagee cannot deny the title of mortgagor for the purpose of the mortgage. But the question is whether a paramount title set up in a mortgage suit can be decided or not. The ordinary rule is that in a mortgage suit, the title of the third party paramount to that of mortgagor and mortgagee which is in no way connected with the mortgage should not be gone into. But it is not an inflexible or invariable rule. If the question is raised and if it does not lead to inconvenience or confusion in trying the issue as to paramount title in the same suit, the Court can try it if it thinks necessary in the interest of all parties that such a trial should take place. It is not correct as contended by the other side that the question cannot be gone into at all and if gone into by the Court below even without objection by either party the decision of the Courts below should be set aside on that ground. In support of the above view reference may be made to .the following cases doggeswar Dutt v. Bhuban Mohon Mitra I L R 33 Cal. 425 ; Bhuban Mohon Ghose v. Co‑operative Hindusthan Bank, Ltd. 29 C W N 784 ; Ramasamy Pillai and others v. Marimuthu Goundan and another A I R 1928 Mad. 764 ; Jalmana) Veeraraghavalu Naidu v. Surynarayana Panda and others A I R 1936 Mad. 338 as well as the case of Laxmanrao Prabhakar Andhare and others v. Madho Prasad A 1 R 1942 Nag.

60. After considering these authorities I am of opinion that the contention of the learned Advocate for the respon dents is of substance, and I hold that the question of para mount title of the defendant No. 1 can be set up in this suit and in fact it was set up without objection and both the Courts below decided it in his favour. As regards the question of estoppel, Mr. Tapendra Kumar Pal, the learned Advocate for the appellants argued that the mortgagee being in possession of the disputed land as mort gagee he is estopped from questioning the title of the plaintiff in the suit land. I may refer to the case of Ramasamy Pillai and others v. Marimuthu Goundan and another (Supra), where it has been held that if the defendant in a mortgage suit who was on record properly in one capacity was allowed in a entirely different capacity to set up a paramount title that would widen the scope of the suit and bring the question foreign to mortgage suit as effectively as if a third party came in and set up a paramount title, and the accident that the two capacities reside in one person should not simplify the pro ceedings or essentially alter the position, and that in assuming the second capacity and setting up the alleged paramount title the defendant became in effect a third parry. Therefore, my' view is that though the defendant as mortgagee is estopped~ from denying the title of a mortgagor certainly he is note; estopped from questioning the title of mortgagor as a paramount title holder in the suit. The result, therefore, is that the contention of Mr. Tapendra Kumar Pal, the learned Advocate for appellants, fails and appeal is dismissed without costs. A. H. Appeal dismissed