LexSHEODHYAN SINGH AND OTHERS versus MUSAMMAT SANICHARA KUER AND OTHERS
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2 S.C.R. SUPREME COURT REPORTS 753 SHEODHYAN SINGH AND OTHERS v. MUSAMMAT SANICH,ARA KUER AND OTHERS (P.B. GA.JENDRAGADKAR AND K.N. WoNcHoo, J.J.) Pinal decru-Sale certifica.te-Properly 80/d fully descrilied but wrong n·umbor given-If mere mi8description. In the final decree for sale in a mortgage suit and in the sale certificate the number of the property in dispute was given as No. 160 instead of No. 1060 which wa• the real number although it was otherwise fully described w that its identity could be clearly established. The appellants contended that a decree could not be granted with m;pect to this plot. The High Court found that No. 160 in the final decree and the sale certificate was a mistake for No. I 060 and that there was no plot No. 160, in the particular khata. Jhe High Court further held that this was a case of misdcscription and not a case of disputed identity. With regard to an_oiher p!ot in dis~ pute subrogation was claimed on behalf of the second mort- gagees alleging that the first mortgoge was redeemed by the second mortgagees although their mortgage deed did not n1ention anything about the earlier mortgage nor was any money left to redeem it. Held, (i) that tho High Court was right in holding that this was a case of misdescription and that as the identity of the property was well established the contention of the appellants must fail. Thakur Barhma v.Jibon Manva.re, ( 1913) L.R. 41 I.A. 38, Gossain Das Kundu v. MrithunjlJ// Agran Sardar, (1913) 18 C,L. J. 541, followed. Rambhadra Naidu v. Kadiruja Sami Na.icker, (1921) L.R. 48 I. A. 155, distinguished. (ii) In the absence of any agreement regarding subroga- tion in the second mortgage the question of subrogation could not be raised. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 497 of 57. Appeal from the Judgment and decree dated October IO, 1955, of the Patna High Court, in Appeal from Original Decree No. 483 of Hl47. L.K. Jha, and P.J(. Chntteijee, fort.he Appellants. A. V. Viswanatha Sastri and R. C. Pm8ad, for resp0ndents Nos. l to 7. 1961 Ma11, 4. 1961 She~dhya1T1 Singh v. Afu1Gnwuit. 8•.nWkGrlt Jfotr 1r anrhoo .! . 754 SUPREME COURT REPORTS [1962] 1961. May, 4. was delivered by The Judgment of the Court WANCHOO, .T.-This iH an appeal on a certi- ficate gm11ted by the Patna High Court. The res- pondents brought a suit with respect to fon plots of land a1ul nl;i,imerl a d0claration tha~ the property belongcrl to Owm and prayorl for posKession of the plots by njeetmPnt of the defendants-appellants and for mesne profits. Beside3 the appellants, there was another set of d!'fendants to the suit from whom the respondents purchased the property. The respondents' case was that the appellants had taken a loan from the other defondants on a mort- gage bond on the basis .of which those defendant~ instituted a suit in l!l3:!. Thi~ suit was decreed against the appellants and thert'aHnr the other defendants got the mortgaged property sold by auction in execution and purchased it themselves in 1936. Thereafter the other defendants entered into possession of the property, delivery of which was made to them by court. The other defendants remained in possession of the property till they sold it to the respondents in 1943. Thereafter the respondents came into poBBeseion of the property. The appellants however began to create trouble from 1942. After the sale to the respondents, the appellants created further trouble which led to proceedings in a criminal court under s. 144 of the Code of Criminal Procedure and the appellants were forbidden from going to the property in dis- pute. Later on, the appellants were bound down under s. 107 of the Code of Criminal Procedure to keep the peace. In 1945 there was a murder in connection with this property on account of which some of the appellants were tried by the court of session but were acquitted. There were further troubles over the crop of theee plots in 1945. Eventually after their acquittal by the court of session, the appellants took poBSession of the pro- l!erty by forcibly dispossessing the res:ponden~. 2 s.c.R. SUPREME COURT RHPORTS 755 Consequently the respondents filed the suit out of which this appeal has arisen in July 1946. The suit was resisted by the defendants on a large number of grounds with which we are however not concerned now. The only points urged before us by learned counsel for the appellants i
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