1. This is a plaintiffs' second appeal arising out of a suit brought by them for possession of certain plots and also for recovery of damages on the allegations that the plaintiffs were' mortgagors of the property and after discharge of the mortgage were entitled to its possession, but the defendants first set who were mortgagees had fraudulently, in order to keep the plaintiffs out of possession, executed a lease in favour of the defendants second set. The latter pleaded that they were tenants of the plot. The learned Munsif before whom the suit came up for hearing referred an issue to the revenue Court as required by law, and on receipt of the findings from that Court that the defendants second set were tenants dismissed the suit. The plaintiffs then went in appeal and the learned Civil Judge of Azamgarh who decided the case dismissed the appeal. It is now urged in this second appeal that the defendants first set had no right to admit the defendants second set to the tenancy beyond the terms of the mortgage and the mortgagee rights having become extinct by a decree under the Encumbered Estates Act the defendants were not entitled to retain possession and were mere trespassers. I have heard the learned Counsel for the parties, and in my judgment this appeal must prevail. The learned Civil Judge has based his judgment on a case reported in Selected Decisions of the Board of Revenue No. 7 of 1920, in which it was held that a lease granted by the mortgagee for a reasonable period and at a reasonable rent was binding on the mortgagor after redemption, but the Hon'ble members of the Board of Revenue distinguished the two cases of this Court in which a contrary view was held. The first of these cases is reported in Ram Chand v. Rajhans ('06) 3 A.L.J. 517. It is a judgment by Aikman J. and he came to the conclusion that on the mortgage having been redeemed, the lessors' rights were determined and the plaintiff was entitled to possession of the land in suit. He further held that there was no relation of the landholder and tenant between the plaintiff and the mortgagee's lessees and therefore the suit was cognizable by the civil Court. In a subsequent case reported in Collector of Basti v. Sarnam Gharak ('11) 11 I.C. 817, Piggott J. held:
In my opinion the correct view is that tenancies thus created by a mortgagee in possession are binding on the mortgagor after redemption of the mortgage in so far that the relationship of the landholder and tenant continues, and that if the mortgagor desires to bring the tenancy to a close, he must do so by a regular suit under the Tenancy Act.
2. With all respect I agree with this view of Piggott J. It is no doubt true that in the present case the mortgage had not been redeemed, but under the provisions of the Encumbered Estates Act a simple decree for money had been passed in favour of the mortgagee and the mortgagor has to be put into possession. But on a clear analogy the same principles would apply. I would hold therefore that the plaintiffs were entitled to possession, but they were bound to sue the defendants as tenants in the revenue Courts.
3. In the present case, however, the suit was wrongly filed in the civil Court. It is urged on behalf of the defendants-respondents that on that view alone the suit was correctly thrown out by the Courts below. I am, however, of opinion that the appellate Court should have applied the provisions of Section 291(1) of the law of Tenancy in the United Provinces, Act 17 [XVII] of 1939. The section runs:
If in any such suit such objection was taken in the Court of first instance and the appellate Court has before it all the material necessary for determination of the suit, it shall dispose of the appeal as if the suit had been instituted in the right Court.
4. Under the provisions of this section the learned Civil Judge ought to have passed a decree in favour of the plaintiffs although the suit was instituted in the wrong Court. I would therefore set aside the decrees passed by the two Courts below and pass a decree in favour of the plaintiffs for possession over the property in dispute. As the defendants were not trespassers the plaintiffs are not entitled to any mesne profits or damages. The plaintiffs shall, however, get their costs in all the Courts. Leave to appeal under the Letters Patent is refused.