JUDGMENT Dalal, J.
1. The facts of the case have been given in the judgment of the lower appellate Court. Mr. Khwaja and Mr. Benod Behari Lal have explained the facts of the case and argued the matter with considerable ability. The plaintiff sued for redemption of 57 sihams out of 144 sihams property in mouza Partapur. The plaintiff is the purchaser of the equity of redemption. It appears to me, however, that the defendant Manni Lal is full owner of 32 sihams out of the 57 1/2 sihams which he holds. After various other transfers, on 9th May 1890 Abdul Sattar mortgaged to Karam Khan his mortgagee rights. At the same time Abdus Sattar, Abdul Ghaffar and Mt. Ajuban mortgaged the equity of redemption in 32 sihams. Karam Khan brought this property which was mortgaged to him to sale, and on 21st May 1895, there was purchased by Ahmadullah 57 1/2 sihams of property out of 144 sihams in mouza Partapur. There had been considerable litigation over this property and it was definitely and finally settled by this Court on 8th March 1922 that the 57 1/2 sihams sold in execution of Karam Khan's decree included the 32 sihams of proprietary rights in Partapur which belonged to Abdul Ghaffar and his wife Mt. Ajuban, Whether this finding be correct or not there ought to be an end to litigation. This Court's decision was given in second appeal No. 1486 of 1919 dated 9th March 1922. Even in that judgment reference, is made to a litigation of 19 2, and the Learned Judges of this Court relying on that decision held that the title to 32 sihams was res judicata. So far I disagree with the lower appellate Court which seems to think that the plaintiff, if there were no bar of law, was entitled to redeem 57 1/2 sihams. I hold that the defendant is full owner of 32 sihams.
2. Now remains the question to decide whether by reason of limitation or of the provisions of Section 41, T. P Act, the defendant can resist the redemption of 25 1/2 sihams. Mr. Binod Behari Lal referred to the ruling reported in Ghasi Ram v, Mt. Kishna, [1915] 18 A.L.J. 877, where it was hold that a purchaser by private treaty from an auction-purchaser of the rights of a mortgagee, is entitled to the protection afforded by Article 134, if he purchased in the bona fide belief that he was purchasing an absolute proprietary title, A distinction is made in various rulings between a purchaser at auction-sale and a subsequent purchaser by private treaty. In Ram Piari v. Budh Sain A.I.R. 1921 All. 389 it was held that Article 134 did not apply to persons who had acquired the mortgagees rights by virtue of an execution sale. Applying those rulings it would seem that Manni Lal can claim limitation from the date of his purchase' by private treaty from Mt. Dulari on 15th March 1923. Ahmadullah's purchase at auction sale out 21st May 1895 has already been referred to. He was a purchaser at auction-sale, so his case would not be covered by the provisions of Article 134. Ahmadullah made a simple mortgage to Mt. Dulari on 27th March 1903, and subsequently in 1907 he sold the equity of redemption to Bihari Lal. Mt. Dulari sued Bihari Lal and Ahmadullah and purchased the property at auction-sale in 1915 or 1916. The argument of Mr. Binod Bihari Lal was that the period of limitation would run from the purchase by Bihari Lal in 1907. This argument does not appeal to me because mortgagee rights in full were not sold, but only the equity of redemption, and the mortgagee at the time was Mt. Dulari. The defendant Manni Lal claims interest from Mt. Dulari and cannot take advantage of the sale to Bihari Lal in 1907. In my opinion, the law is clear on the point that if Manni Lal had been in possession for 12 years after purchase, or if any of his predecessors in-interest had been a purchaser by private treaty from an auction-purchaser, the suit would have been barred. The ruling of the single Judge reported in Ghashi Ram v. Mt. Kishna [1915] 18 A.L.J. 877, is well supported by authority such as the case reported in Venku Shettithi v. Ramachandraya A.I.R. 1926 Mad. 81. Having regard to the circumstances of the present case I am of opinion that Article 134 does not apply.
3. The next point is whether the suit is barred under the provisions of Section 41, T P. Act. Here the defendant had to prove the implied consent of the person interested in the equity of redemption, and the care he himself had taken to ascertain that his transferrer had power to make the transfer and that he had acted in good faith. The implied consent is presumed from the entries in the village record over since 1895 of Ahmadullah being full owner of 57 1/2 sihams. It must, however, be remembered that the confusion has arisen from the fact that he was full owner of 32 sihams and distinction was not kept between the two portions of properties which he purchased. There had been a great many transfers and it would have been impossible for any owner of equity of redemption to keep even with those transfers, and in a case of this nature it would not bo fair to hold that the owner of the equity of redemption had given an implied consent to the entry of the name of Ahmadullah as full owner. Secondly, the matter here is not of a trespasser. Ahmadullah was a mortgagee in possession and entitled not only to possession but to have his name recorded in the village papers. What happened was that instead of being recorded as mortgagee of a portion of the property he was recorded as full owner of the entire property.
4.The next question is of the care taken by Manni Lal to investigate the title of Mt. Dulari. When there had been so many transfers he ought to have gone back to the mortgage of 9th May 1890 and discovered what the mortgage was. The subordinate appellate Court has thought that it was sufficient for him to see that Ahmadullah himself behaved as full owner, and the inquiry thereof would amount to reasonable care being taken by him. Here also the inquiry would have been satisfactory if the dispute lay between an owner and a trespasser and there was no question as to mortgagee rights. In my opinion the case is not one which would be covered by the provisions of Section 41, T.P. Act.
5. In the result I am of opinion that the plaintiff can redeem 25 1/2 siham property on payment of Rs. 240. A decree for redemption shall be prepared under Order 31 Rule 8, Civil P.C. If the money is not paid within the time specified the result directed in Rule 8(2) shall follow. The money shall be deposited in the trial Court within one month of today's date. The parties shall bear their own costs throughout.