Full Judgment
Walmsley, J.
1. This appeal is preferred by the plaintiff, who brought a suit for redemption under the following circumstances. One Dayamoyee mortgaged her land to defendant No. 1, Nishiram, on 18th March 1912 by a kat kobala. The plaintiff claimed on the basis of a registered kohala executed by Dayamoyee in his favour on 5th May 1914. He was resisted by the 2nd defendant, who alleged that he had made an oral agreement with the mortgagor on the one hand and the mortgagee on the other, that he had paid some money to each of them and that he had been put in possession of the property before the date an which the plaintiff made his purchase. The mortgagee admitted that he had received payment in, full of the sum due under the mortgage from the 2nd defendant. The first Court disbelieved the evidence as to the oral purchase by the 2nd defendant and directed that plaintiff should redeem the 2nd defendant. On appeal by the 2nd defendant the lower Appellate Court reversed that order and dismissed the suit.
2. It appears to me that the learned District Judge has made two mistakes. He speaks of the mortgagee being for all ' practical purposes the owner and of the mortgages abandoning the land and giving up her rights and surrendering her title in the land. The apparent result of the kat kobala would be this that the mortgagee would be in possession and the mortgagor would part with her title for the time being. Secondly, the District Judge has overlooked the fact that the purchase of the right of redemption from the mortgagor could not be effected except by a registered instrument. It appears to me that if these mistakes had not been made, he would, on his finding that he did not believe the story set up by the second defendant about the purchase, have come to the conclusion that the 2nd defendant had not acquired the rights of the mortgagor, and on that finding I think he would have had to uphold the decision of the first Court.
3. It is contended, however, before us on behalf of the respondent--the 2nd defendant--that the plaintiff must be taken to have purchased the property subject to any rights acquired in it by the 2nd defendant, because the presence of the 2nd defendant in possession of the land would act as a notice to him to enquire about his rights. I do not think, however, there is any substance in this argument because it appears that the defendant's purchase, if there was any, was made in Chaitra and the plaintiff's purchase was made before the end of the following month--Baisakh. The interval was very short, and at that season of the year, it would be difficult to know who was in possession of the land because acts of possession are not numerous and obvious.
4. In my opinion, the decision of the District Judge is wrong and must be set aside and that of the Court of first instance restored with costs in this Court and in the lower Appellate Court.
Panton, J.
5. I agree.