John Stanley, C.J. and Burkitt, J.
1. This is an appeal from the decree of the Subordinate Judge of Farrukhabad, dismissing the plaintiff's suit. The facts are very simple. The defendant, who was first mortgagee of some property called mauza Piprauli, brought a suit on foot of his mortgage against the mortgagor, and on the 21st of April, 1897, obtained a decree for the sale of the mortgaged property in satisfaction of the mortgage debt.
2. The plaintiff in the present suit, who, with his brother, is in possession of the mortgaged property, claims that he and his brother are in such possession under, and by virtue of, a usufructuary mortgage, dated the 15th of March, 1889, and made in their favour by the mortgagor subsequent to the date of the defendant's mortgage. The plaintiff and his brother were not made parties to the defendant's suit, and they contend that the omission to make them parties was contrary to the provisions of Section 85 of the Transfer of Property Act, and that the defendant is not therefore entitled to have a sale in execution of his decree. The plaintiff has instituted this suit accordingly, and in the prayer to his claim, seeks a declaration that mauza Piprauli is not saleable in execution of the defendant's decree, but no other relief. In his written statement Debi Din alleged, among other things, that the amount of the plaintiff's mortgage has been satisfied by the usufruct, and that the plaintiff has no longer any concern in the mortgaged property.
3. No evidence was given by the plaintiff in the Court below to prove that his mortgage was subsisting. He contended that the burden of showing that his debt had been paid off lay on the defendant, while the latter maintained that the onus of proving that his mortgage was subsisting lay on the plaintiff. The learned Subordinate Judge decided in favour of the defendant's contention and dismissed the suit.
4. The plaintiff's mortgage was a zar-i-peshgi lease, which is in the nature of a usufructuary mortgage. The property was, by the deed of mortgage, granted to him for a term of five years, and the deed provided that the mortgagee should, out of the profits amounting to Rs. 451, pay the Government revenue, and after appropriating the interest on the advance made by him to the mortgagor, should pay the balance to the mortgagor. It was stipulated in the deed that if the mortgagor did not pay off the mortgage debt within the teem of five years, the mortgage should continue as a security for the amount remaining due. The term of five years expired on the 15th of March, 1894; but under the last mentioned stipulation the mortgage would continue to be a subsisting security if the mortgage debt has not been satisfied. In our opinion the decision of the learned Subordinate Judge is correct. When a plaintiff seeks from the Court a declaratory decree, it lies upon him to make out his title affirmatively. This is not a case in which a party in possession is defending his title, but one in which a party in (possession sets the Court in motion, and seeks a declaration establishing his title against a third party. In such case a. plaintiff is in the same position as any other plaintiff and must make out his case. Here the plaintiff had, or ought to have had, the means of satisfying the Court that his mortgage was still subsisting, and if he has failed in doing so, he cannot expect the Court to exercise the discretionary jurisdiction conferred upon it by Section 42 of the Specific Relief Act, and to make a declaration, which would be based upon an assumption merely and not upon proved facts, that the property is not saleable in execution of a decree which, so far as the evidence before the Court goes, may be a perfectly valid and binding decree. The plaintiff was bound to satisfy the Court that he had an interest in the property, and that by not making him a party to the suit for sale the defendant had failed to comply with Section 85 of the Transfer of Property Act.
5. We think that the learned Subordinate Judge was quite correct in the view which he took, and we must affirm his judgment and dismiss the appeal with costs.