JUDGMENT
1. This appeal arises out of a suit brought by the plaintiffs-respondents for possession of property or in the alternative for a decree for sale thereof on the basis of the mortgage of the 12th of February 1878 The facts of the case are as follows–Shib Din and Bhup, two brothers, owned a certain property, the name of one of them only being recorded in the Government, papers. They created five mortgages upon their property. On the 27th of June 1873, a usufructuary mortgage to secure the sum of Rs. 1,000 was created in favour of one Baldeo Ahir. On the 12th of February 1878 a second mortgage, which is the basis of the present suit, was created by them also in favour of Baldeo Ahir to secure a sum of Rs. 1,422. On the 21st of March 1880 they gave a simple unregistered mortgage to Cheda Lal to cover the sum of Rs. 90. On the 14th October. 1882they gave a registered simple mortgage to one Edel, son of Baldeo, to cover a sum of Rs. 120. On the 11th of January 1885 they gave a registered simple mortgage to one Baldeo Hajam and Ors. to secure the sum of Rs. 4,000. In 1886 a suit was brought on the basis of the fourth mortgage by the mortgagee against the mortgagors without making any of the other mortgagees parties to the suit. The property was sold and purchased by the decree-holder. In 1898 Cheda Lal paid off the fifth mortgage. In 19.00 he brought a suit to redeem the fourth mortgage. He got a decree and paid up the sum due to the mortgagee. In this way Cheda Lal became the owner of the last three mortgages. In 1900 he brought a suit to redeem the first mortgage of 1873, the original mortgagee being dead, his son, Kalian (the father of the present plaintiffs-respondents), was made a party to the suit. He put in no defence. An ex parte decree was granted. The sum due on the mortgage was paid and Cheda Lal was formally put into possession on the 10th of December 1900. In September 1912 the present suit was brought by the plaintiffs-respondents as against the assignee of Cheda Lal to recover possession of the property on the basis of the deed of the 12th of February 1878 and in the alternative for sale of the property.
2. The Court of first instance treating the mortgage of 1878 as a simple mortgage gave the plaintiffs a decree for sale. On appeal the lower Appellate Court modified the decree and gave the plaintiffs a decree for possession of the property.
3. The defendant has appealed. The first point that he raises is that the mortgages of 1873 and 1878 really constituted one indivisible mortgage and the mortgagee not having set up his rights on the document now in suit in the former litigation, is barred by the rule of res judicata from putting it forward now.
4. On behalf of the respondents it is urged that the two transactions are two separate mortgages, and moreover that the rule of res judicata cannot apply because the Court which decided the former suit was the Court of the Munsif and that Court was not competent to try the present suit.
5. We have examined the mortgage-deed in question and after carefully considering its terms we are of opinion that the two deeds of 1873 and 1878 constituted two separate mortgages. They are both usufructuary mortgages in favour of Baldeo Ahir. In regard to the rule of res judicata it is clear that the present suit is one which the Munsif was incompetent to hear : and, therefore, in view of the plain terms of Section 11, Civil Procedure Code, the present suit is not barred by the rule of res judicata by reason of the fact that the defence on the second mortgage was not put forward in the previous litigation.
5. There remains, however, a very important fact, and that is that the puisne mortgagee having redeemed the prior mortgage of 1873 has all the powers and rights of the mortgagee under that deed. That deed was prior in date to the deed which is the basis of the present suit and entitles the mortgagee to possession until he shall be redeemed. The present suit is a suit in ejectment in which the plaintiffs made no offer to redeem the defendant. We are asked at this present stage of the case to allow the plaintiffs to amend their plaint and change their suit into one for redemption of the prior mortgage. We would point to the fact that in the former litigation the predecessor in-title of the plaintiffs did not set up his rights, given to him under the deed of 1878. Paragraphs 10 and 11 of the plaint show clearly that he was well aware of what his rights were in 1900. From that day however no steps have been taken, until the institution of the present suit in 1912, to assert their rights. Under these circumstances where parties sleep over their rights for so long a period as nearly 12 years, we do not think that they are entitled to any indulgence : and We cannot see our way to allowing the plaint to be amended so as to change this suit into one for redemption of the prior mortgage.
6. In regard to the plea that the mortgage of 1878 was really a simple mortgage and the plaintiffs were entitled to a decree for sale, we do not think that there is the slightest force in this. The terms of the deed itself are fatal to this contention. It was an usufructuary mortgage and nothing else.
7. In our opinion the plaintiffs’ suit should have been dismissed. We, therefore, allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs’ suit with costs in all Courts including in this Court fees on the higher scale.
