Gangeshwar Prasad, J.
1. These two connected second appeals arise out of two connected suits (suits NOS. 3 and 4 of 1951) filed in the civil court for possession over certain plots of agricultural land. Bhundal Singh and Badri Singh, sons of Dalip Singh, were plaintiffs in both the suits, while Bedhan and Ramapati were defendants in suit No. 3 of 1951 and Sumiran and Bodhan were defendants in suit No. 4 of 1851. In both the suits it was alleged by the plaintiffs that Smt. Rajjo, an occupancy tenant of the disputed plots, executed a deed of gift in favour of Dalip Singh, father of the plaintiffs, on 2nd October 1888, and Dalip Singh entered into possession under it. On 15th May 1915 Dalip Singh mortgaged with possession by means of a deed of mortgage the plots involved in suit No. 3 of 1951 to Ram Bharos who is dead and is now represented by his son Bodhan defendant No. 1. Ramapati defendant No. 2 in that suit was said to be in possession of one of the plots as transferee from Bodhan and was thus impleaded as a co-defendant.
On the same date i.e. 15th May 1915 Dalip Singh mortgaged with possession by means off another deed the plots involved in suit No. 4 to Sumiran defendant No. 1 and Ram Bharos, father of Bodhan defendant No. 2. The defendants, ascording to the plaintiffs, had continued in possessionas mortgagees. Applications for redemptionand recovery of possession under Section 12 ofthe U. P. Agriculturists Relief Act were filed againstthem by the plaintiffs but they were dismissed onthe ground that since the mortgages related tooccupancy tenancy and were thus not valid, noproceedings with respect to them could be takenunder Section 12 of the said Act. Thereafter theplaintiffs filed the suits which have given rise tothese appeals. In both the suits it was denied bythe defendants that they were in possession of thedisputed, plots under the mortgages alleged to havekeen executed by Dalip Singh or that any titlepassed, to Dalip Singh under the deed of gift executedby Smt. Rajjo.
They, alleged that in consequence of proceedings taken by the Zamindar upon the death of Smt. Rajjo the persons in possession were dispossessed from plots Nos. 696, 717, 1041 and 1180 and the land reverted to the Zamindar who entered into possession, and that the Zamindar settled the said plots with defendants. About plot No. 708 it was said that on partition among Zamindars, it was allotted to Ram Bharos who remained in possession as a Zamindar and the defendants were also in possession as Zamindars. A number of other pleas were also taken. The trial court dismissed the suits, but on appeal the learned District Judge decreed suit No. 3 of 1951 for plots Nos. 696 and 717 subject to the payment of Rs. 300/- and suit No. 4 of 1951 involving plots Nos. 1041 and 1180, in entirety subject to the payment of Rs. 299/-. He, however, dismissed suit No. 3. of 1951 For plot No. 708.
2. At the outset it was contended before me by the learned counsel for the appellant that the plaintiffs could have obtained relief in the revenue court by means of suits under Section 180 of the U. P. Tenancy Act of 1939 and the civil court had, therefore, no jurisdiction to entertain the suits. This contention is clearly unsustainable. It would appear that although the plea of want of jurisdiction in the civil court to entertain the suits had been taken in the written statement it was subsequently abandoned and no issue on the question of jurisdiction was, therefore, struck by the trial court. Further, the plea was neither urged before the lower appellate court nor was it made a ground of objection in the memorandum of appeal filed in this Court, presumably because it was thought that according to the observation made in the Full Bench case of Mahabat Singh v. Ram Raj : AIR1950All604 the suit was maintainable in the civil court. In these circumstances the plea of jurisdiction cannot be allowed to be raised at this stage.
3. Coming to the merits of the cases, it is clear that Smt. Rajjo, who was admittedly the sole occupancy tenant of the plots in suit, was not competent to transfer her interest, and the gift deed executed by her on 2nd October 1888 conferred no title upon Dalip Singh, i 9 of the N. W. P. Rent Act (Act No. XII of 1881) which was in force at the time of the execution of the deed of gift clearly law down that the rights of an occupancy tenant were not transferable except in favour of co-sharers in the tenancy, and, therefore, irrespective of the question whether the gift deed was or was not acted upon, Dalip Singh acquired no rights under it. There is, further, no evidence to indicate that the Zamindar either assented to the gift or even knew of it. In fact it appears that the name of Smt. Rajjo continued in the village records during her life-time and on the death of Smt. Rajjo in 1916 the Zamindar asserted that she had died heirless and Dalip Singh, who claimed mutation over the plots in place of Smt. Rajjo had no interest.
Even if, therefore, Dalip Singh did actually enter into possession of the plots in suit after the execution of the deed of gift in his favour he did not on that account become a tenant. The situation would not be materially different even if Dalip Singh had acquired some kind of interest in the plots, and Dalip Singh would have been in every view of the matter, incompetent to create the mortgages of 15th May 1915, because under Section 9 of the N. W. P. Rent Act (Act XII of 1881) only the interest of a fixed rate tenant was capable of being transferred. While discussing this question the learned District Judge has referred to the judgment of the Addl. Munsif Banaras in suit No. 913 of 1908 in which a declaration was granted in favour of Dalip Singh that the property comprised in the gift deed dated 2nd October 1888 belonged to him. To that case the defendants were not parties and the declaration granted to Dalip Singh therein is of no value in the present suits, because the question of Dalip Singh's right under the deed of gift is not a question of fact but purely a question of law to be determined with reference to the relevant statutory provisions.
4. The next point for determination is what kind of legal relationship came to exist between Dalip Singh and the persons in whose favour the usufructuary mortgages of 15th May 1915 were admittedly executed by him. It was conceded by the counsel for the parties that the so called mortgages did not in law, create the relationship of mortgagor and mortgagee between the parties thereto, and that they had only the effect of putting the persons who had advanced money to Dalip Singh in permissive possession of the plots mentioned therein. The persons so put in possession were licensees on behalf of Dalip Singh under a covenant which entitled them to retain possession so long as the money advanced by them remained unpaid. This was undoubtedly the position to start with. The question is whether as a result of the subsequent events proved in this case and particularly of the settlement in favour of the defendants by the Zamindar, the position underwent a change and the legal relationship which once subsisted between Dalip Singh and the defendants came to an end. The learned District Judge has taken the view that these subsequent events were wholly ineffective for putting an end to that relationship and that the defendants cannot, therefore resist the claim of the plaintiffs and must restore to the plaintiffs the possession which they got from Dalip Singh.
5. The propositions on which the view taken by the learned Judge is based may be stated, substantially in his own words, as follows. As the defendants allowed the possession, which they had obtained on the basis of the mortgage deeds executed by Dalip Singh, to be taken away by somebody else during the continuance of the mortgages and they took back possession from the person who ousted them they cannot deny that they are in possession as mortgagees on behalf of the mortgagor. Possession of the plots in suit having been delivered to the mortgagees by means of the mortgage deeds executed by Dalip Singh, and the mortgagees having allowed the plots to go out of their possession and having again obtained possession thereof subsequently, it was not open to them to say that the plots never belonged to the mortgagor or that the title of the mortgagor had been lost. The points to be considered are firstly, whether the defendants having been only licensees, the estoppel which operates against mortgagees can be applied to them and if so to what extent; and secondly, whether the facts proved in these cases attract the operation of any estoppel.
6. It is well established that a mortgagee is estopped from denying the title of the mortgagor to the mortgaged property at the time of mortgage. The principle underlying this rule of estoppel Is certainly of wider application and extends to licensees as well. Statutory recognition has also been given to it by Section 116 of the Evidence Act which precludes a licensee who came upon an immovable property by the licence of the person in possession thereof from denying that such person had a title to such possession at the time when the licence was given. The estoppel does not, however, prevent either a mortgagee or a licensee from proving that subsequent to the mortgage or the licence the mortgagor or the licensor lost his title to the property to which the mortgage or the licence related. Bo far, therefore, a mortgagee and a licensee stand on the same footing. But it would not, on that account be correct to say that the estoppel operating against a mortgagee and the estoppel operating against a licensee are identical in nature or co-extensive in scope.
A mortgagee cannot, for example, by repudiation of the mortgage convert his possession under the mortgage into one adverse to the mortgagor. He is not permitted by his own unilateral act to bring about an extinction of that legal relationship which was created by the mortgage or reduce the period of limitation prescribed for the redemption of the mortgage. During the period available to the mortgagor for redemption the possession of the mortgagee will always be attributed to the mortgage despite any assertion by him of a claim hostile to the mortgagor. A licensee, however, is not precluded from setting up a claim of adverse possession even though he has not surrendered possession to the licensor provided that he has, to the knowledge of the licensor, expressly and openly denied the permissive nature of his possession and asserted a claim hostile to the licensor. I may mention that in this respect a licensee differs not only from a mortgagee but also from a tenant.
I have emphasised this difference in order to Indicate that the principles of those cases on which the learned District Judge has relied may not be applied to licensees without modification and exactly as they are applicable to mortgagees. The first case to which reference has been made by the learned District Judge is Raja Ram Dhar Dube v. Jadunandan Dhar Dube AIR 1025 All 758 which lays down that in a suit by the mortgagor to redeem, the mortgagees are estopped from setting up the interest of a third person so long as they have not handed over possession to the mortgagor. The next case is Arjun Singh v. B. Maheshanand, : AIR1932All437 where it was held that mortgagee in possession of the mortgaged property cannot set up adverse possession over it. Reference has also been made to Gauri v. Mangla, 94 Ind Cas 442 (Rev.) (All), according to which a mortgagee is precluded from doing anything which might be a hindrance to the redemption of the mortgaged property. These propositions are beyond question, but the point to be considered is whether they can have an unqualified application to the case of licensees.
The learned District Judge has particularly relied on the principle laid down in the case of : AIR1925All758 in holding that as the defendants regained possession after being ousted by the Zamindar they cannot deny that they are in possession on behalf of the plaintiffs and they have to restore possession to the plaintiffs. This might have been true if the defendants had really been mortgagees, but as they were only licensees the situation assumes a different legal complextion. In my opinion it is open to a person who entered into possession of a property as a licensee to resist the claim of his licensor to possession on the ground that subsequent to the licence ho had been ousted from possession by a person exercising a paramount right and that his possession was no longer under the licence but under a fresh title derived from the person who had ousted him. In this respect the position of a licensee resembles that of a tenant and the position of both may differ from that of a mortgagee because of the special legal incidents attached to mortgage. Dealing with the scope and extent of the estoppel against a tenant in a situation of this kind in the case of Guruswami Nadar v. Ranganatham : AIR1954Mad402 a Division Bench of the Madras High Court observed as follows:
'The estoppel under Section 116 is restricted to the denial of the title at the commencement of the tenancy. From this, the exception follows, that it is open to the tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title holder or that even though there was no actual eviction or dispossession from the property, under a threat of eviction he had attorned to the paramount title-holder. In order to constitute eviction by title paramount, it has been established by decisions in England and in India, that it is not necessary that the tenant should be dispossessed or even that there should be a suit in ejectment against him. it will be sufficient if there was threat of eviction and if the tenant as a result of such threat attorns to the real owner, he can set up such eviction by way of defence either to an action for rent or to a suit in ejectment. If the tenant however gives up possession voluntarily to the title-holder, he cannot claim the benefit of this rule.'
With these observations 1 respectfully agree. I may also refer to the case of Ram Rakha Mal v. Munna Lal, AIR 1931 Lah 243 where it was accepted that one of the defences open to a tenant in a suit for recovery of rent is that the landlord's title had expired or been defeated by a title paramount and it was held that such a defence is permissible without the tenant having to surrender possession. It will be noticed that in the Madras case quoted above no distinction in this respect has been made between an action for rent and a suit in ejectment. Of course, the principle enunciated in the above decisions would be inapplicable to a case in which the licensee has by an act which amounts to breach of contract or breach of faith towards his licensor wilfully allowed somebody else to take possession of the property which he held under the licence and has thereafter managed to get possession of that property again by taking advantage of his position as a licensee.
In such a case the bream in the possession of the licensee would not change the nature of his possession and rules of equity, such as those embodied in Sections 90 and 94 of the Trusts Act, will compel him to return the property to the licensor. But where this is not the case and the licensee has been evicted by a person in exercise of a paramount right the licence will be deemed to have come to an end, and if at some subsequent time the licensee regains possession he is not estopped from denying the title of the licensor or resisting his claim to possession. It has, therefore, to he seen in what manner the defendants lost their possession and how they subsequently regained it in the present case.
7. The facts proved in these cases in regard to plot No. 696 (Involved in suit No. 3 of 1951) and plots Nos. 1041 and 1130 (involved in suit No. 4 of 1951) may be said to be almost identical. They show that the persons who have been put in possession of the aforesaid plots by means of the mortgage darts of 1915 were ousted by the Zamindar in exercise of his proprietary rights. Not only was the claim of Dalip Singh to these plots negatived in mutation proceedings after the death of Smt. Rajjo but the Zamindar also succeeded in ejecting the mortgagee and obtaining actual possession. The possession that the defendants regained, so far as these plots are concerned, cannot be attributed to the licence under the deeds of 1915 but must be held to have had its origin in a settlement made by the Zamindar. I may briefly refer to the evidence in regard to what happened between the execution of the mortgages of 1915 and the settlement of these plots in favour of the defendants. I will first take up the evidence relating to this matter in suit No. 3 of 1951.
On 13th August 1916 after the death of Smt. Rajjo an application (Ex. A-2) was made by Dalip Singh for mutation with respect to plots which are the subject matter of that suit. The Zamindar opposed the claim of Dalip Singh to mutation. By his judgment (Ex. A 3) dated 26th July 1916 the Assistant Collector ordered the expunction of the name of Smt. Rajjo but rejected the claim of Dalip Singh for mutation and directed that the names of the occupants be recorded as non-occupancy tenants without specifying the occupants. On appeal the Collector by his judgment (Ex. A 4) dated 14th May 1917 clarified the position and ordered that the mortgagees be entered as non-occupancy tenants and this Judgment was confirmed in appeal by the Commissioner on 27th May 1918. it may be mentioned here that under the N. W. P. Tenancy Act (Act II of 1901) persons occupying land without the consent of the land-holder were usually recorded as non-occupancy tenants and they were liable to ejectment under Section 58 read with Section 34 of the Act, and therefore the fact that the mortgagees were ordered to be recorded as non-occupancy tenants does not indicate that any contract of tenancy was held to have come into existence between them and the Zamindar at that time.
However, these Judgments clearly show that Dalip Singh was not recognised as a tenant in mutation proceedings to which he, his mortgagees and the Zamindar were all parties. It appears that Dalip Singh made another attempt to get his name recorded as a tenant but this attempt also failed. There is on record a copy of the judgment (Ex. A6) of the Collector of Banaras dated 6th November 1920 showing that Dalip Singh's claim to be entered as a tenant over the occupancy holding of Smt. Rajjo was rejected and the entries made as a result of the earlier mutation proceedings were directed to stand as they were. This order of the Collector was confirmed by the Commissioner by his order (Ex. 7) dated 23rd December 1921. Then there is a copy of a Dakhalnama (Ex. A 24) dated 28th June 1924 showing that in execution of a decree for ejectment with respect to plots Nos. 696 and 717 against Ram Bharos the Zamindar obtained possession of the said plots through court. Lastly there is an extract (Ex. A 18) of the Khatauni of 1333 Fasli showing that plots Nos. 69S and 717 are entered in the name of the zamindar Ganga Prasad.
The evidence on record therefore, leaves no room for doubt that the Zamindar dispossessed the mortgagees of Dalip Singh and entered into actual possession of plots Nos. 696 and 717 in 1924 and that in 1937 the Zamindar executed leases in favour of the defendants of suit No. 3 of 1951. At the time of execution of the leases the defendants were not in possession under the mortgages of 1915 executed by Dalip Singh or otherwise and consequently there was nothing in law to preclude them from acquiring tenancy rights from the Zamindar with respect to plots Nos. 696 and 717. So far as these plots were concerned their possession under the mortgage deed of 1915 had already come to an end and from the dates of the leases executed by the Zamindar a fresh possession commenced under and by virtue of the settlement made by the Zamindar.
The situation with regard to plot No. 709 in suit No. 3 of 1951 is, however, different. Certainly that plot was also the subject matter of the mutation proceedings following upon the death of Smt. Rajjo and the claim of Dalip Singh for mutation was rejected with respect to that plot also but there is nothing to indicate that the mortgagees were ousted from possession so far as that plot is concerned. As a matter of fact the evidence suggests that Ram Bharos mortgagee was himself a co-sharer in the village and under a partition among the co-sharers plot No. 709 was allotted to his share. The permissive nature of the possession of the mortgagee over plot No. 709, therefore, continued uninterrupted and the defendants must be held to be still liable to return possession of that plot to the plaintiffs. Coming to plots Nos. 1041 and 1180 Involved in suit No. 4 of 1951, it appears that ejectment proceedings were taken by the Zamindar for these plots as well. Although no decree or Dakhalnama is on record there are copies of Goshwara showing that the Zamindar had filed a suit under Section 58 of the N. W. P. Tenancy Act (Act II of 1901) against Ram Bharos and had executed the decree in 1926.
The Goshwara itself does not snow to what plots the ejectment proceedings related and since the records of the case have been weeded out the plots nave to be ascertained with the help of the other evidence on the record and the circumstances of the case. Baldeo Singh D. W. 2 stated that Ram Bharos had been ejected from four plots (1 e. nOS. 696, 1041, 1180 and 717) and he had again acquired possession over them subsequently. This fact was elicited from the witness in cross-examination on behalf of the plaintiffs and the correctness of the statement was not challenged. The inference is clear that me suit for ejectment and the proceedings for execution related to these plots and that the mortgagees were ejected from plots Nos. 1041 and 1180 by the Zamindar.
8. The situation with regard to suits Nos. 696 and 717 involved in suit (sic) and plots Nos. 1041 and 1180 involved in suit No. 4 of 1951 is virtually the same and it resembles in its essential features the situation in the case of Adya Nath Ghatak v. Krishna Prasad Singh . Briefly the facts of that case were that the plaintiff had leased a property to defendant No. 1 on a monthly rent. Defendant No. 2, claiming as the true owner, obtained a decree for possession against the defendants and took symbolical possession in execution of the decree, Defendant No. 1 remained in possession with the permission of defendant No. 2 although he continued paying rent to the plaintiff. Defendant No. 1 then obtained a lease of the same property from defendant No. 2. The plaintiff subsequently brought a suit for possession against defendant No. 1.
It was held by their Lordships of the Privy Council that defendant No. 1 was not estopped from disputing the plaintiffs title as the tenancy between plaintiff and defendant No. 1 had already determined and as defendant No. 1 held the property from defendant No, 2. it will be observed that although defendant No. 2 had taken symbolical possession in execution of his decree against the plaintiff, defendant No. 1 had continued paying rent to the plaintiff until he obtained a lease from defendant No. 2. But even this circumstance was not allowed to create an estoppel against defendant No. 1 nor was the tenancy between the plaintiff and defendant No. 1 regarded as having continued on that account.
9. It 13 true that in the present cases Dalip Singh does not appear to have been a party to the ejectment proceedings taken by the Zamindar in regard to plots Nos. 696, 717, 1041 and 1180, but that does not make any difference because the name of Dalip Singh was never entered in the village papers and his claim to be recorded in place of Smt. Rajjo had already been negatived in the mutation proceedings consequent upon the death of Smt. Rajjo.
10. As a result of the foregoing discussion it must be held that the plaintiffs have no right or interest in plots Nos. 696 and 717 involved in suit No. 3 of 1951 and plots Nos. 1041 and 1180 involved in suit No. 4 of 1951 and that the defendants acquired. tenancy rights in them by means of settlement made with them by the zamindar. As regards these plots the defendants are not estopped from disputing the title of the plaintiffs and resisting their. claim to possession. The learned District Judge has already dismissed suit No. 3 of 1951 so far as plot No. 717 is concerned but the suit has to be dismissed with regard to plot No. 696 also. So far however plot No. 708 is concerned the plaintiffs are, entitled to a decree subject to the payment of Rs. 300/- to the defendants. In suit No. 4 of 1951 the only plots Involved are plots Nos. 1041 and 1189 and the entire suit has, therefore, to be dismissed.
11. Second Appeal No. 2672 of 1960 is allowed in part and the decree of the lower appellate court is modified. Suit No. 3 of 1951 is decreed with regard to plot No. 708 only subject to the payment of Rs. 300/- to the defendants within six months from today and it will stand dismissed with regard to the remaining two plots.
12. Second Appeal No. 2673 of 1960 is allowed, the decree of the lower appellate court is set aside and suit No. 4 of 1951 is dismissed in entirety.
13. Parties will bear their own costs in all the Courts in both these suits.