1. This is a defendants' second appeal against a judgment of the Civil Judge of Jaunpur, dated 26th August 1941 by which he confirmed a decree of the Munsif of Shahganj, dated 31st March 1941. The plaintiff-respondent brought a suit for redemption of a mortgage, alleged to have been executed on 28th August 1882 by Sukhraj and Sukhbhawan, ancestors of the plaintiff in favour of the ancestor of the defendants. The sum secured was Rs. 1000 but it is alleged in the plaint that it has been paid off by the usufruct of the property and on that allegation, the plaintiff claims possession without payment of any money. A variety of pleas were raised in defence. It was denied that the plaintiff was the heir of the mortgagors but that point has been decided by both the Courts below against the defendants-appellants and is not urged before us. Another plea taken was that the document of the year 1882 was not a mortgage but an out and out sale. In the alternative, it was further pleaded that as a result of a subsequent agreement between the parties the mortgagors released the equity of redemption in favour of the mortgagees and thus the latter became absolute owners of the property. As regards this plea, there is a finding of fact by the lower appellate Court to the effect, that the mortgagors did not release the equity of redemption in favour of the mortgagees which is binding on this Court and which cannot now be disturbed. The other plea taken in the lower Court was that the plaintiff was estopped from asserting his right as a mortgagor because at the time of settlement, in the year 1884, the khewat was attested by the plaintiff himself and he acknowledged in that manner the correctness of the entries. There is authority on the point that a mere attestation of the settlement entry does not amount to an acknowledgment and we have no hesitation in confirming the view taken by the lower appellate Court that that plea of the defendant-appellants cannot be accepted. It was further alleged that one Ugrasen, decree-holder attached an 8 annas share in execution of his decree against the mortgagors who were the judgment-debtors in that case. The defendants filed an objection under Order 21, Rule 58 that 4 annas share out of the 8 annas belonged to them and that the judgment-debtors in that case were only the owners of 4 annas. This objection was allowed and Ugrasen, decree-holder did not file any declaratory suit under Order 21, Rule 63, Civil P.C., to set aside that order.
2. It is urged that this order should estop the present plaintiff. We think that the matter is so obvious that it does not require any discussion. The order was between Ugrasen, decree-holder and the defendants. The failure of Ugrasen to bring a declaratory suit could only affect his rights and no more. Yet another plea was taken that the defendants denied the title of the plaintiff in connexion with the proceedings for correction of khewat in 1902 and therefore from that date their possession ought to be deemed as adverse. This point was not very seriously argued and it seems to us that it could not be argued as there was no occasion for denial of title in the correction proceedings and no papers have been shown to us that any denial of the title was made in clear terms. The last plea, on which great stress has been laid, is that Section 233(k), Land Revenue Act, barred the plaintiff's suit. The learned Counsel for the appellants has traced the history of this section from very early times and has taken us through all the important rulings beginning from the ruling in Mohamed Sadiq v. Laute Ram ('01) 23 All. 291 (F.B.). He stated that he was doing all this in order to explain the Privy Council ruling reported in Bajrang Bahadur v. Beni Madho . With all respect to the learned Counsel, we think that the point decided in the Privy Council ruling did not arise in this case and if it did arise, the view of the Privy Council could not help the defendants. The suit out of which this appeal arises is only one for redemption of a mortgage. Section 233(k), Land Revenue Act, lays down:
No person shall institute any suit or other proceeding in the civil Court with respect to any of the following matters:
(k) Partition or union of mahals except as provided in Sections 111 and 112.
We dare say that a suit for redemption can by no stretch of language, be called a suit with respect to partition or union of mahals. It is true that as a result of redemption there is bound to be some change in the entries in the khewat but that change cannot be called with respect to partition or union of mahals. It is not a matter between the two recorded cosharers but only between a mortgagor and a mortgagee who together constitute a co-sharer. If, in case of a mortgage, entry is correctly made the names of both the mortgagor and the mortgagee would appear in the khewat and as a result of the redemption suit, the name of the mortgagee shall go out. If by mistake the name of the mortgagee is left but and he attempts to enforce his mortgage Section 233(k) would not be a bar as a mortgagee can never be a recorded cosharer. In our opinion, the same should be the result in a reverse case where the name of the mortgagor is left out and only the name of the mortgagee appears in the khewat. In some cases, according to the terms of the transactions, it may be necessary to record the name of the mortgagee alone and the mere fact that partition proceedings intervened, would not destroy the mortgagor's right. In short, it seems to us that Section 233(k) never applies in a suit for redemption. We are fortified in this view by the observations of Dar J. in Ram Baran v. Bahadur Khan ('42) 29 A.I.R. 1942 All. 423 to the following effect:
If a mortgagee is in possession of property under a-mortgage by conditional sale or usufructuary mortgage and in a revenue Court partition the mortgaged property is allotted to the share of the mortgagee treating him as full owner at a time when there was no conflict between the mortgagor and the mortgagee qua the title to property such an allotment in my opinion does not have the effect of destroying the contract between the parties and it will be open to the mortgagor in such a case to bring a suit for redemption of property at the proper time when he gets a cause of action for the suit or is in a position to enforce his rights. The mortgagor in such a suit is not trying to disturb the partition, its distribution of share or of its revenue or the questions of title to share or liability to revenue determined by the partition. He accepts all this; he is trying to enforce his contract which entitles him to recover possession of the property in certain events which have happened.
3. The deed of 28th August 1882, which is sought to be redeemed appears to be couched in a very peculiar phraseology. It provided that after a period of seven years the executants will have a right on the following Jet Sudi 15 of 1297, to pay the amount of Rs. 1000, and that if the money is paid on that date then the conditional sale will be void. This suggests that although the deed was described as a conditional sale the conditions were of a transaction of an out and out sale with an option of re-purchase. This puzzled the parties and while the plaintiff was treating it as a conditional sale, the defendants were treating it as an out and out sale. There is no wonder that it puzzled the settlement officer as well and he made the entry as if it were an out and out sale. The reasons assigned for this settlement entry by the defendants were that there was an agreement between the parties in consequence of which the plaintiff gave up his equity of redemption. This allegation has not been accepted by the lower appellate Court and so the only other alternative appears to be that the settlement officer did not correctly understand the nature of the transaction. As we have already observed, merely on account of the omission of the name of the mortgagor from the khewat, he will not forfeit his right to redeem. On the interpretation of Section 233(k), Land Revenue Act, we are of opinion that their Lordships of the Privy Council never intended to lay down that any entry in the khewat, after there has been a revenue partition, would not be liable to be questioned in a civil Court whether those parties were arrayed on one side or on opposite sides and whether it was necessary to check that entry for the purposes of partition. In this connexion, the following, observations of their Lordships of the Privy Council are worthy of note:
The facts of the present case raise no question as to the rights of anyone to bring a civil suit pending the partition proceedings, or as to the rights of a person who is not a recorded cosharer or was not a party to the proceedings, or as to any case between persons whose interests were not opposed for the purpose of the partition.
In our opinion, the expression 'persons whose interests were not opposed for the purpose of the partition' is very significant. In a Full Bench case of the Chief Court of Oudh reported in Rameshwar Singh v. Hanwant Singh the following observations occur:
If between the other recorded cosharers there is no dispute inter se or even if there is a dispute and that dispute is not opposed to the applicant for partition, then that dispute is not within the scope of, and does not relate to the particular partition applied for by the applicant and any suit in respect of that dispute subsequent to the partition would not be barred by Section 233(k), U.P. Land Revenue Act, from the cognizance of the civil Court.
4. Without committing ourselves to this view we are of opinion that there is great force in it. In any aspect of the case, there was no force in the contention of the defendant, appellants and the plaintiff's suit for redemption was rightly decreed. We may note in passing that no arguments were advanced before us on the question that the mortgage was not fully satisfied by the usufruct. The result is that the appeal fails and is dismissed with costs.