JUDGMENT
P.N. Mookerjee, J.
1. Two brothers Ashutosh Maity and Behary Maity held the suit land as tenants under the appellants. Behary died leaving his widow Rashi Dei as his sole heiress. The appellants as landlords brought a rent suit against their tenants Ashutosh and Rashi Dei and in execution of the decree obtained therein purchased the disputed holding on 19-11-1936. Prior to the institution of the rent suit Ashutosh had purported to mortgage the suit land to the contesting respondents’ father Keshab Nayek by a duly registered deed sometime in the year 1928. The amount secured by the deed was Rs. 300/-. In the mortgage suit which was brought in the year 1940 the appellants as rent sale purchasers as aforesaid were impleaded as defendants but eventually the suit was dismissed against them for non-prosecution upon their plea of a paramount title.
In execution of the mortgage decree the property was purchased by the mortgagee-decree-holders (who are the contesting respondents before me) on 17-6-1944 but the respondents’ attempt to take possession was resisted by the appellants and eventually the latter’s application under Order 21, Rule 100, Civil P. C. was allowed by the court on 28-4-1945.
2. Within a year from the date, last mentioned above, said respondents brought the present suit under Order 21, Rule 103 of the Code on 27-4-1946 on the allegation inter alia that at the time of the mortgage to their father Keshab Nayek the mortgagor Ashutosh was the 16 annas owner of the disputed holding, he having obtained, as the presumptive reversioner, a surrender in his favour from his deceased brother’s widow Rashi Dei, that the full 16 annas share of the holding was duly mortgaged by Ashutosh to their father Keshab Nayek who acquired the entire holding at his mortgage sale & as the said mortgage had not been annulled by the appellants after their auction purchase at the rent sale the respondents’ title to the suit land must prevail over the appellants’.
3. The suit was contested by the appellants whose main defence was that it was barred by limitation and also by Section 47, Civil P. C. and that the mortgage had been duly annulled by them and further that the story of Rashi Dei’s surrender in favour of Ashutosh was false. This last defence has been accepted by the two courts below but they have concurrently overruled the appellants’ other pleas.
4. As a result the suit has been decreed in part, viz., to the extent of the moiety of Ashutosh which alone was validly mortgaged to the plaintiffs-respondents’ father Keshab Nayek and which alone, therefore, passed to the said respondents on the strength of the mortgage sale. Against this decree the present second appeal has been preferred by the defendants to this Court.
5. Before me three points have been urged in support of the appeal. Mr. Panda’s first contention is that the respondents’ mortgage had been duly annulled according to law by the service of a notice under Section 167, Bengal Tenancy Act on 27-6-1940. He has argued next that as the mortgage suit was dismissed against the appellants they must be deemed to be parties to the mortgage suit for purposes of Section 47 of the Code under the explanation appended thereto and that, accordingly, the present suit is barred under the provision of that section. Lastly, it has been urged that even if the appellants fail in their claim of a paramount title they have clearly under the law an interest in the equity of redemption which remained unaffected by the mortgage decree whether the mortgage suit be taken as having been dismissed against them or they be deemed to have been dismissed or discharged from it & that being so and a fresh suit on the mortgage having admittedly become time-barred in the meantime, the respondents’ present action must fail on the ground of limitation.
6. The first point may now be conveniently disposed of. The mortgage in question was created by a registered document as required by law. According to both the courts below the appellants must be deemed to have had notice of the mortgage immediately on the completion of their purchase at the rent sale because of registration of the mortgage bond. The courts below have also found that, in the circumstances disclosed in the evidence adduced in the case, the appellants must be held to have had notice of the mortgage at least in June 1938 when in a title suit in which they were parties the said bond was filed in court. In the facts and circumstances of this case, I have no reason to differ from the said findings.
I need only add that the first of the findings is amply supported by the decision of this Court in the case of — ‘Sarala Sundari Debi v. Puma Chandra’ , on which the two courts below relied and that the case of — ‘Gopinath Biswas v. Radhashyam Poddar’ 24 Cal W N 657 (B), cited at the bar on behalf of the appellants, has little relevancy as this latter decision was given long before the relevant amendment of the definition of notice contained in Section 3, T. P. Act (vide Explanation 1).
The second finding, noted above, is a finding of fact but, even apart from that, the courts below having given ample indication that the facts and circumstances of this case were sufficient to put the appellants to enquiry as regards the respondents’ mortgage so as to attract the general doctrine of constructive notice and they have held that that doctrine applies in the matter of determination of the starting point of limitation under the second part of Section 167(1), Bengal Tenancy Act. This is well in accordance with the decision of this Court In the case of — ‘Gopal Lal Chandra v. Amulyakumar’ — vide also –‘Yusuf Gazi v. Asmatullah’, 15 Ind Cas 430 (Cal) (D), referred to and explained in that decision, — which was cited by the appellants’ learned Advocate. I, accordingly, hold that the appellants had notice of the relevant mortgage at least in June 1938 and as the notice under Section 167, Bengal Tenancy Act was served only in June 1940 It was long beyond the statutory period of one year and was as such ineffective in law to annul the mortgage. The first point, raised in support of the appeal, must, therefore, fail and it is overruled.
7. On the second point too the appeal cannot succeed as it seems proper to hold — and the recent authorities clearly support that view –that the dismissal of a suit against a particular party on the ground that he is not a necessary party is not a dismissal within the relevant explanation of Section 47 of the Code. (Vide in this connection — ‘Abdul Sac v. Sundara Mudaliar’ AIR 1930 Mad 817 (PB) (E) and — ‘Mt. Kusmi v. Sadasi Mahto’ AIR 1942 Pat 432 (F)). Such a dismissal of the suit is really a discharge or dismissal of the party concerned from the suit and ought to be so construed in law and if that is so he is “no longer, a party to the suit”. Vide — ‘Manakchand v. Manoharlal’ . The plea, therefore, that Section 47 is a bar to the respondents’ present suit cannot be sustained.
8. The third point also must be decided against the appellants. When in a mortgage suit a party claims only a paramount title and raises a plea of misjoinder on that basis and succeeds in getting the suit dismissed against him — which really means in law, as pointed out above, his dismissal or discharge from the suit — on such plea, he forfeits his right of redemption, if any, in respect of the said mortgage and becomes disentitled to claim such right in any future proceeding. This was laid down by the Judicial Committee more than half a century back in the well-known case of — ‘Nilkant Banerji v. Suresh Chandra’, 12 Ind App 171 (PC) (H) and the proposition has even since been accepted always and never questioned.
It must be held, therefore, that the appellants retained no right of redemption in respect of the respondents’ mortgage after the dismissal of the mortgage suit against them and the mortgage decree eventually passed in that suit was not subject to any right of redemption in favour of the appellants. The foundation of the appellants’ argument on the plea of limitation thus disappears leading inevitably to the rejection of the third point urged by their learned Advocate.
9. On behalf of the appellants, a further argument appears to have been made in the courts below. At one stage it was sought to be advanced on their behalf in this Court too but eventually it was given up. That argument was that, as against them the suit having been dismissed on their claim of a paramount title, such title must be held to have been established and could not be subsequently challenged. Such an argument needs no answer beyond this that there was no adjudication on this question but just a dismissal of the suit against the appellants which meant in law only their dismissal or discharge from the action, as pointed out above, on the well known principle that a claim of paramount title being “outside the controversy” in a mortgage suit vide — ‘Radha Kisun v. Khurshed Hossein’ AIR 1920 PC 81(2) (I) and — ” and (thus beyond the scope of the suit, the claimant should be left out or discharged from the action and his claim or rights in that behalf should not be made the subject-matter of determination in the suit. This further argument of the appellants, therefore, has little merit and deserves no serious attention.
10. In the result all the points, urged in support of this appeal, fail. The appeal is, accordingly, dismissed but, in the circumstances of this case, I direct that the parties will bear their own costs in this Court.
