1. This is an appeal by the plaintiff which arises out of a suit for possession of plot 1028 having an area of 5 bighas 12 biswas pukhta situate in village Sheikhpur. One Mt. Rafatunnissa was the owner of certain zamindari properties including the plot in dispute. On 19th July 1908, she executed a simple mortgage of the entire properties in favour of the plaintiff appellant. This mortgage was put into suit in 1920. During the pendency of the suit, the original mortgagor having died, the name of her son and heir Ishtiaq Ahmad was substituted in his place. A preliminary decree was passed in due course of law. After the passing of the preliminary decree, Ishtiaq Ahmad, on 25th February 1924, executed a lease of the plot in dispute in favour of Asghar Khan defendant-respondent for a term of five years. Plaintiff applied for a final decree and impleaded Asghar Khan, the lessee in the said proceedings. A final decree was passed against the mortgagors' representatives on 25th February 1925. In execution of the said decree, the property was sold and was eventually purchased by the plaintiff decree-holder on 24th July 1926. Formal possession was obtained over the zamindari property comprised in the mortgage on 13th October 1926. No possession was obtained over plot 1028 which is the subject-matter of the present suit as the lessee in enjoyment of his rights under the lease dated 25th February 1924 continued to remain in possession.
2. The defendant contested the suit upon the ground that he was the tenant of the plaintiff's predecessor-in-title under the lease dated 25th February 1924 and must be taken to be a statutory tenant under Section 19, Act 3 of 1926 (local). The Court of first instance referred art issue to the revenue Court for the determination of the question as to whether the defendant was a tenant of the plaintiff. The issue was decided in favour of the plaintiff and the Court of first instance held that the relation between the parties was that of landlord and tenant, that the legal position of the defendant was that of a statutory tenant under Section 19, Agra Tenancy Act, that the lease is still operative and in force and that the plaintiff's suit for ejectment is not, therefore, maintainable. The lower appellate Court has affirmed this decision.
3. The lease dated 25th February 1924: does not offend against the provision of Section 52, T.P. Act. Where during the pendency of a mortgage suit or of the proceedings consequential upon a decree passed in such a suit, the mortgagor in the ordinary course of the management of his property grants a lease of the mortgaged property in whole or in part for an adequate rent, the lease is not obnoxious to the provision of Section 52, T.P. Act. The lessee holds the property subject to the rights of the mortgagee decree-holder.
4. Act 3 of 1926 came into force on 6th September 1926. Asghar Khan defendant-respondent was under his lease dated 25th February 1924 a tenant of plot 1028 at the commencement of this Act. He was, therefore, a statutory tenant within the meaning of Section 19. The finding of the revenue Court that the relation between the parties was that of landlord and tenant is obviously correct and cannot be displaced.
5. It has been further contended that Asghar Khan was impleaded in the proceedings relating to the preparation of the final decree and he might and ought to have pleaded the legality and validity of his lease dated 25th February 1924 and that the omission of Asghar Khan to put forward that plea precludes him from raising it now in answer to the present action. It is contended, therefore, that the defence is barred by the rule of constructive res judicata. It does not appear why or how a question as regards the legality of the lease dated 25th February 1924 could arise in the proceedings about the passing of a final decree. The plaintiff mortgagee was entitled to a decree for sale of the zamindari property. It would have been wrong on the part of Asghar Khan to resist the application for the passing of the final decree and he acted properly in not contesting the application. His position was merely that of a tenant and he could not assail the plaintiff's title as the decree-holder to put to auction the right, title and interest of the mortgagor in the zamindari property hypothecated to him. The plea put forward by the plaintiff is, therefore, clearly, untenable and is rejected. The result is that this appeal fails and is dismissed with costs.