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Dwarka Chand Vs. Sheikh Khadim Husain - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.553
AppellantDwarka Chand
RespondentSheikh Khadim Husain
Excerpt:
usufructuary mortgage - sir--sir sold after the passing of agra tenancy act ii of 1901--position of mortgagee--ex-proprietary tenancy--agra tenancy act (ii of 1901), section 20--transfer of holding--ejectment. - - he, however, failed to get possession of the sir land which was in the occupation of the defendant, and a suit for ejectment of the defendant, in the revenue court was unsuccessful......an ex-proprietary tenant and that the defendant was entitled to remain in possession of the ex-proprietary tenancy by virtue of his mortgage.3. the courts below have decreed the plaintiff's suit and the defendant comes here in second appeal. the same plea is now urged before us, namely, that the defendant is entitled to continue in possession' of the ex-proprietary tenancy of the defendant's mortgagor muhammad ishaq. reliance is placed upon the ruling reported in sham das v. batul bibi 24 a. 538 in which it was held that where a zemindar had mortgaged by way of usufructuary mortgage his zemindari together with his sir land and afterwards lost the zemindari rights and become an ex-proprietary tenant of the sir, the usufructuary mortgage did not become ineffectual but took effect as a.....
Judgment:

1. This appeal arises out of a suit for ejectment under the following circumstances. On the 14th of June 1890, Muhammad Ishaq executed a mortgage of a zemindari share together with some sir land in favour of the plaintiff's predecessor-in-interest. Subsequently, on the 23rd of August 1897, the same share with the sir land was usufructuarily mortgaged to Dwarka Chand, the defendant-appellant. On the 6th of January 1905, plaintiff sued upon his mortgage, making the defendant-appellant a party to the suit, and obtained a decree for sale and on the 24th of November 1905, the mortgaged property was sold and purchased by the plaintiff. He, in due course, obtained mutation of names and possession. He, however, failed to get possession of the sir land which was in the occupation of the defendant, and a suit for ejectment of the defendant, in the Revenue Court was unsuccessful. The plaintiff then instituted the present suit for ejectment of the defendant.

2. The defence to the suit was that after the sale of the property in the year 1905 to the plaintiff, the former owner Muhammad Ishaq became an ex-proprietary tenant and that the defendant was entitled to remain in possession of the ex-proprietary tenancy by virtue of his mortgage.

3. The Courts below have decreed the plaintiff's suit and the defendant comes here in second appeal. The same plea is now urged before us, namely, that the defendant is entitled to continue in possession' of the ex-proprietary tenancy of the defendant's mortgagor Muhammad Ishaq. Reliance is placed upon the ruling reported in Sham Das v. Batul Bibi 24 A. 538 in which it was held that where a zemindar had mortgaged by way of usufructuary mortgage his zemindari together with his sir land and afterwards lost the zemindari rights and become an ex-proprietary tenant of the sir, the usufructuary mortgage did not become ineffectual but took effect as a mortgage of the ex-proprietary rights. The facts in that case are very similar to those of the case before us. But there is one distinguishing fact in the present case and that is that the sale of the ex-proprietary rights took place on the 24th of November 1905 after the passing of Act No. II of 1901, (The Agra Tenancy Act). By Section 20 of that Act it was enacted that the interest of an ex-proprietary tenant is not transferable in execution of a decree of a Civil or Revenue Court or otherwise than by voluntary transfer between persons in favour of whom as co-sharers in the tenancy such right originally arose. The ex-proprietary rights of Muhammad Ishaq came into existence upon the date of the sale. Those rights, by virtue of the provision set out above, were not transferable and the defendant could not continue to hold them as mortgagee of the ex-proprietary tenants. The contention on behalf of the appellant is that as the defendant's right to occupy the sir lands came into existence before the passing of the Tenancy Act, he was entitled to continue in possession after the passing of the Act in virtue of that right. What was mortgaged to the defendant in the year 1897 was the proprietary rights of Muhammad Ishaq and the sir land. Defendant continued in possession and enjoyment of the security until the sale took place op the 24th of November 1905. The effect of the provision of Section 20 of the Tenancy Act was to make the ex-proprietary rights, which came into existence by reason of that sale, not transferable. We may also point out that to give effect to the contention advanced on behalf of the appellant would give rise to an anomalous position, namely, that we would have to hold that the defendant-appellant was entitled to remain in possession as a puisne mortgagee and as such he would be entitled to redeem the plaintiff notwithstanding the fact that the defendant was a party to the suit in which the appellant had obtained a decree and that upon sale his interest came to an end. We think the decision arrived at by the Courts below was a right one and dismiss this appeal with costs including fees on the higher scale.


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