Full Judgment
Bajpai, J.
1. This is an appeal by the defendant, Mt. Rasoolan Bibi, against an order of remand passed by the lower appellate Court. The plaintiff, Mt. Ram Kuar, brought a suit for recovery of money and sale on the basis of a mortgage against four defendants, Mt. Husaini Bibi, Mt. Sajan Bibi. Abdul Ghafur and Mt. Rasoolan. Her case against the first three defendants was that they were the representatives of the mortgagor, and as such interested in the mortgaged property and the right to redeem. So far as Mt. Rasoolan, the fourth defendant, was concerned, the only allegation against her in the plaint was that she was in possession of the mortgaged property, in what capacity she was in possession was not mentioned. Mt. Rasoolan filed a written statement and she claimed to be owner of the property. She denied the mortgagors title and the mortgagee's right to sue and set up a paramount title in herself. The other defendants also contested the suit. The Court of first instance dismissed the plaintiffs' title in its entirety. So far as Mt. Rasoolan was concerned he decided only one issue in controversy between her and the plaintiff. The issue was whether Mt. Rasoolan Bibi has been unnecessarily made a party to the suit and is the suit bad against her. The finding of the learned Munsif was that:
question of paramount title ought not to be gone into in a mortgage suit. Persons claiming paramount title ought not to be made parties to mortgage suit.... If she has got any title to the house and her rights are affected in any way she ought to get them determined in a separate suit. If the plaintiff or her antecessors-in-interest or the heirs of Abdulla feel that their rights, if any, in the house cannot be sufficiently enforced because of Mt. Rasoolan or her possession over the house they ought to bring a separate suit against her.
2. With these observations he held that Mt. Rasoolan Bibi upon her plea was unnecessarily made a party to the suit. Mt. Rasoolan had further claimed that she had been in possession of the house in suit as owner adversely for over 12 years. The learned Munsif held that it was not necessary to decide that issue. As we stated before, the plaintiffs' suit was dismissed in its entirety and therefore she went in appeal to the lower appellate Court. That Court decided in favour of the mortgagee so far as Sajan Bibi and Abdul Ghafur, representatives of the mortgagors, were concerned and disallowed their objections, but he was of the opinion that it was not right to leave the question of Rasoolan's title to be decided in a. separate suit and, he therefore remanded the suit for the decision of Mt. Rasoolans' proprietary title which she set up on the ground that she was in possession adversely to the mortgagor for over 12 years.
3. It is contended before us on behalf of Mt. Rasoolan Bibi that the decision of the trial Court was correct inasmuch as she had claimed a paramount title and the determination of her title was absolutely foreign to the mortgage suit. The general provision regarding the joinder of defendants is to be found in Order 1, Rule 3, Civil P.C., wherein it is stated that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same transaction is alleged to exist. The special provision regarding mortgage suits is to be found in Order 34, Rule 1, Civil P.C., wherein it is stated that subject to the provisions of the Code all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. Now, it is clear that Mt. Rasoolan had nothing to do with the transaction of the mortgage either by herself or by her predecessor, nor can it be said that she had any interest in the mortgage security or in the right of redemption when she, as a matter of fact, says that the mortgagor had absolutely no right to mortgage the property. It is thus clear that the only right which Mt. Rasoolan was claiming was the right in the property as owner of the same in denial and derogation of the right of the plaintiffs' mortgagor and the determination of such a title in a suit based upon a mortgage was bound to lead to confusion. It was held by their Lordships of the Privy Council in Radha Kunwar v. Reoti Singh 1916 P.C. 18, that in a suit for sale under a mortgage joinder of persons claiming an adverse title was an irregularity and that it could only tend to confusion. The same view was taken in the case of Gobardhan v. Manna Lal 1918 All. 81, where Banerji and Raoof, JJ., held that in a suit brought by a mortgagee to enforce his mortgage, a person claiming a title paramount to the mortgagor and the mortgagee is not a necessary party, and the question of the paramount title cannot be litigated in such a suit. We are therefore of the opinion that the remand of the case for determination of the title of Rasoolan Bibi was absolutely unnecessary.
4. We therefore allow this appeal and set aside the order of remand with costs to Rasoolan Bibi in this Court as well as in the lower appellate Court. The order of the Court of first instance awarding costs to Rasoolan Bibi is maintained. A decree under Order 34, Rule 4 will be prepared against Sajan Bibi and Abdul Ghafar. The plaintiff will be entitled to add his costs to the decretal amount to be recoverable from the mortgaged property. The usual six months are allowed for payment.