1. The question for consideration in this case is not one free from difficulty. On the 13th June, 1908 Tilak Rai, Ganesh Rai and Mahabir Rai borrowed Rs. 160 from Bhushi Rai, the plaintiff-respondent and mortgaged with possession certain occupancy plots.
2. There was an agreement that in case the mortgagee was ejected from the occupancy holding or from any portion thereof by any act on the part of the mortgagors or his heirs or legal representatives, he will be entitled to claim possession of the occupancy holding or to recover damages at the rate of 10 maunds per bigha from the date of his ejectment, or to recover the entire money due to him with interest at the rate of 2 per cent, per mensem from the date of his ejectment till the date of realisation from the person and the other property of the mortgagors, including two houses specifically described in the deed. There was a further covenant that the occupancy holding and the two houses aforesaid shall be deemed to be mortgaged and hypothecated for the repayment of the money secured by the mortgage. The occupancy holding in question was situated in chak Abdulla Khatib alias Mauza Raziapur. The houses in question were situated in Balapur.
3. On the 16th February 1910 a deed of further charge was executed for Rs. 99-15-0 which provided for the repayment of the money due thereon, including interest, at the time of the repayment of the above mortgage and also mentioned that the occupancy holding and one of the houses shall stand mortgaged and hypothecated for the above amount.
4. On the 5th October 1910 there was a second deed of further charge executed for Rs. 49-15 couched in almost identical terms, with this difference that the house hypothecated for the repayment of the money due on that deed was the other of the two houses.
5. The allegation of the plaintiff was that he was placed in possession of the mortgaged holding and that in 1328 F. the defendants wrongfully interfered with his possession and removed the Bajra crop, which he had sown over the mortgaged land. The plaintiff accordingly sued for a decree maintaining his possession as a mortgagee over the occupancy plots in question with the Arhar crop standing on a portion of it. He further prayed that in case he was found to be out of possession, such possession may be awarded to him. In the alternative he asked for the recovery of the money due on the mortgage and deed of further charge by the sale of the houses mortgaged. He also claimed the price of the crop, which was alleged to have been sown by him and wrongfully kept away by the defendants.
6. The defendants contested the claim on various grounds. Their plea was that the mortgage and deeds of further charge were fictitious and without consideration, that they did not give possession to the plaintiff over the disputed plots, that the crops standing thereon had been sown and cut by them, and that the plaintiff was not entitled to get possession of the holding or to bring the mortgaged house to sale.
7. The Court of first instance dismissed the claim, holding that as the mortgage of an occupancy holding was illegal, the mortgage of the houses could not be enforced because its enforcement was interdependent on the failure of the mortgage of the occupancy holding.
8. The lower Appellate Court, however, was of opinion that although the mortgage of an occupancy holding was illegal, the mortgagors could not oust the mortgagee by force after he had already obtained possession without repaying the mortgage money. It then asked the Trial Court to determine whether the plaintiff had obtained possession under the mortgage in question and when they had been dispossessed.
9. The finding of the Court of first instance was that the plaintiff had remained in continuous possession of the mortgaged holding till 1326 F. and that he was subsequently ousted by the defendants who took possession of the Bajra crop sown by the plaintiff on a portion of the mortgaged holding, worth Rs. 15.
10. The finding of the lower Appellate Court was that the plaintiff had been dispossessed less than six months before the institution of the suit and that on the ground of equity he was entitled to a decree for possession of the occupancy holding unless the mortgagors were willing to repay the mortgage money. It proceeded accordingly to give the plaintiff a decree for possession but omitted to consider whether the plaintiff was entitled to a decree for damages on account of the crop said to have been cut away by the defendants or whether the other crop which is said to have existed on the date of the suit was still existing on the spot or had been removed.
11. There can be no question that the mortgage of an occupancy holding was illegal, The only matter which requires consideration is whether in that event the plaintiff is entitled to get back possession except by a suit brought under Section 9 of the Specific Relief Act or to sue for the re covery of his money by the sale of the houses, The suit was not brought under Section 9 of the Specific Relief Act. Ii fact if it had been brought no appeal from a decree passed in such a suit could have been maintainable. As has boon painted out in Lachman v. Shambhu Narayan (1911) 33 All. 174 where a plaintiff sues for possession on the basis of a title and fails to establish his title his suit for possession based on title cannot be converted into a suit for possession under Section 9 of the Specific Relief Act; and a decree for possession cannot be granted to him under the latter provision.
12. In Pal Ahir v. Asghar Hussain (1911) 8 A.L.J. 44 where certain property mortgaged by the defendants, as if it were a fixed rate tenancy, was sold as such and purchased by the plaintiff who remained in possession for a time and afterwards the plaintiff was dispossessed by the defendants, who were found to have been occupancy tenants, it was held that a suit for the recovery of possession by the plaintiff was not maintainable inasmuch as the holding was an occupancy tenancy, a mortgage or sale of which could not be recognized.
13. It was further held in that case that when a plaintiff is dispossessed otherwise than in due course of law and wishes to take the benefit of Section 9 of the Specific Relief Act, he ought to institute his suit on that ground alone and not on title so that the nature of the enquiry therein may be limited to the question of the immediate right of each party to possession.
14. The learned District Judge observes that it would amount to encouraging the use of violence, if the Court refuses to give the mortgagee possession in these circumstances. But the mortgagee has his remedy open to him to seek possession irrespective of his title. He did not adopt that remedy and sought to obtain possession on the strength of his title and in the alternative for the recovery of the mortgage money due on the mortgage and the deeds of further charge. To such a suit Section 9 of the Specific Relief Act has no application.
15. The other points raised in the appeal have not been tried. The appeal is therefore allowed and the case remanded to the lower Appellate Court with a direction to reinstate the appeal under its original number and to dispose of it after determining the other points raised in the suit and the appeal in the manner directed by law. Costs shall abide the result and will include fees on the higher scale.