Tudball and Abdul Raoof, JJ.
1. This is a plaintiff's appeal. The facts out of which it has arisen are briefly as follows:--The defendant was the owner of a certain zamindari share, the area of which was some 13 bighas odd. On the 23rd of July, 1908, he gave a usufructuary mortgage of this zamindari to the plaintiff. On the same date the plaintiff gave him a lease of the same zamindari share on payment of a sum of Rs. 70-14-0 per annum plus Rs. 23-11-0 Government demand, etc. The defendant remained in possession as thekadar paying his rent to the plaintiff under the lease. On the 26th of June, 1912, the plaintiff sued him on the basis of that agreement for arrears of rent and obtained a decree and in execution of his decree for the arreas of rent due under the lease, he attached and put to sale the defendant's equity of redemption. This was sold on the 20th of March, 1913, and was purchased by one Bhuttu Mal. At the time of the sale the plaintiff's mortgage and one other mortgage were also notified. The price paid for the property at the sale was Rs. 40. Bhuttu Mal did not apply for mutation of names, and the Government record still stands as it was on the date of the original mortgage. The plaintiff has now, on the basis of the lease, sued his thekadar, the defendant, for the rent for a period which commenced prior to the 20th of March, 1913, and runs up to a date subsequent to that date. The defendant in his written statement merely pleaded that he was liable for the rent up to the 20th of March, 1913, but that for the period subsequent to that he was no longer liable under the lease because his equity of redemption had been sold and purchased by Bhuttu Mal. The court of first instance in the course of its judgment made the remark that 'the mortgagor's right to redeem had been put to auction by the plaintiff decree-holder who had purchased it for Bhuttu Mal on the 20th of March, 1913.' It is quite clear that the defendant had nowhere pleaded that Bhuttu Mal was the benamidar of the plaintiff or that Bhuttu Mal had purchased the property for and on behalf of the plaintiff. There was no issue on this point. There was no allegation or denial; no evidence and no finding. The court of first instance held that the purchase by Bhuttu Mal of the defendant's equity of redemption did not affect the case at all, that the lease subsisted, and that the defendant was liable under the lease. It accordingly decreed the suit. The lower appellate court on the defendant's appeal has held that after the 20th of March, 1913, the defendant became the ex-proprietary tenant of the land because the equity of redemption had been sold; that he was entitled to take up his position as an ex-proprietary tenant and as no rent had been fixed, he was not liable to pay any rent for the period subsequent to the 20th of March, 1913. The plaintiff appeals. It is quite clear to us that the judge of the court below has misunderstood the nature of the plaintiff's claim. It is based on the theka which was given to the defendant on the 23rd of July, 1908. We will assume that the defendant is the ex-proprietary tenant of the land. He is equally a thekadar under the contract of the 23rd of July, 1908. If the period of that contract has come to an end, then of course the plaintiff's claim must fail because the theka no longer subsists; but, so long as the theka subsists, the plaintiff is entitled to recover from his thekadar the rent which the latter has agreed to pay. He may as an ex-proprietary tenant be a tenant of the land under himself as thekadar. If the theka had been given to an outside person, there is no question that so long as it subsisted the thekadar would be liable for the rent. The lower court in its judgment has stated that Bhuttu Mal appears to have been a benamidar for the plaintiff. It has, however, come to no decision on the point, nor could it do so, for the simple reason that the issue had not been raised, no evidence taken upon it, and there had been no decision on it. The point would have been material if it had been raised, because the lease was to subsist only so long as the mortgage subsisted. If the defendant had pleaded and had proved to the court that the mortgage had come to an end, then the plaintiff's claim would have failed, but he is not allowed to raise a question of fact in second appeal on which there were no pleadings, on which there was no issue and to which no evidence was directed. The case must be decided on the assumption, right or wrong, that the mortgage still subsists and that Bhuttu Mal is the owner of the equity of redemption which was purchased in his name. This being so, the lease must still subsist, and, whether the defendant be or be not the ex-proprietary tenant of the land, he is liable as thekadar to his lessor. In this view we must allow the appeal set aside the decree of the lower appellate court and restore that of the court of first instance. The plaintiff will have his costs in all courts. The court of first instance granted the plaintiff a decree for what it has called 'usual interest.' This interest will run from the date of the suit up to the date of realization, and at the rate of 6 per cent. per annum simple.