1. This appeal has arisen out; of a suit for redemption, which was decreed by the first Court but dismissed by the lower appellate Court. The plaintiff has appealed.
2. The plaintiff sought by his plaint to recover possession of five plots, Nos. 27-1, 34-2, 31, 636 and 260 by redemption of a mortgage said to have been made in 1915 by her husband, Kashi Koeri, to secure the payment of Rs. 49-15-9. According to her the mortgage was usufructuary, and redeemable on payment of the principal amount.
3. The defendant denied that the plaintiff was the widow of Kashi Koeri or that any mortgage of the five plots in dispute was made by Kashi in 1915. It was stated in the written statement that plots 636 and 260 were not in possession of Kashi, who was alleged to be an occupancy tenant in the village. As regards the other three plots, viz. 27-1, 34-2 and 31 all that was stated in the written statement was that:
It anyhow it be proved that the plaintiff has a right in plots Nos. 27, 34 and 82 even then she cannot get a decree without paying Rs. 99, the amount of mortgage.
4. One of the defendants was examined as a witness in defence and stated that the aforesaid three plots had been mortgaged 32 or 31 years before for Rs. 99 by Kashi to his father Siru. He however said that he had not seen the mortgage deed as it had been lost in the life time of his father and that he only heard of the mortgage from Kashi. Treating this statement of one of the defendants as no more than evidence in the case, it cannot by itself be considered as an admission in pleading by all the defendants, but read with para. 15 of the written statement, in which it is definitely pleaded that if the plaintiff established her right to the three plots therein named, she cannot redeem exoept on payment of Rs. 99, it implies that if the plaintiff be found to be the widow...a fact which was denied by the defendants...she can recover possession on payment of Rs. 99; I think that it was the case of all the defendants that plots Nos. 636 and 260 did not belong to Kashi and were never mortgaged by him. As regards the remaining three plots, it was admitted that Kashi was an occupancy tenant thereof and had mortgaged the same for Rs. 99 to the father of the defendants about 32 or 33 years before the institution of the suit.
5. The plaintiff attempted to prove the mortgage of 1915, alleged by her, but failed to establish it. Both the lower Courts have held against her on this point. The trial Court decreed the plaintiff's suit for possession of three plots, 27-1, 34-2 and 31 on payment of Rs. 99 in terms of the defendants' admission. The lower appellate Court, on appeal by the defendants, dismissed the suit on the ground that the plaintiff having founded her claim on the mortgage of 1915, which she failed to establish, could not be allowed to succeed on the admission of the defendants. That Court referred to the cases of Sheo Prasad v. Lalit Kuar (1896) 18 All. 403 and Sahdeo Ojha v. Lachhmina Kuar A.I.R. 1916 All. 98, both of which were suits for redemption in which the plaintiff failed to establish the mortgage which he had set up in the plaint. In none of those oases the validity of the mortgage was in question. The mortgaged property had belonged to the mortgagor in full ownership and he had a right to transfer the same. In the case before me the position is somewhat different. The three plots, which according to the defendants were mortgaged by Kashi to their father, formed part of the former's occupancy tenure and could not therefore be validly transferred except by sub-letting for a period of not more than five years. In my opinion this ground of distinction between the cases noted above and the present case is material in applying the ratio decidendi of those cases.
6. Where, in a suit for redemption of mortgage, the plaintiff fails to establish the particular mortgage, which he seeks to redeem, and the terms thereof, he cannot ordinarily be allowed to fall back upon the defendant's admission and to redeem a totally different mortgage. In such cases the defendant denies the mortgage sought to be redeemed by the plaintiff and seta up a different mortgage under which he alleges to be in possession, he generally adds such facts as part of his defence as disentitle the plaintiff to succeed on the defendant's admission. The plaintiff's attempt to change his ground and to ask for redemption of the mortgage relied on by the defendant is frustrated by the defence which, if accepted in its entirety puts the plaintiff out of Court. In all such cases the plaintiff attempts to throw the burden on the defendant to prove such of his allegations as amount to impediment to the plaintiff's claim to redeem. This, of course, the plaintiff cannot be allowed to do in view of his own pleadings. In the present case the defendants have alleged nothing which can prevent the plaintiff from redeeming the mortgage relied on by them. Apart from this, different considerations are applicable to a case in which the suit framed as one for redemption is, in substance a suit for possession pure and simple. Where the mortgaged property consists of an occupancy holding, the so-called mortgage is no mortgage in law, being in contravention of Section 20, Agra Tenancy Act (Act 2 of 1901). There being no valid mortgage, no suit for redemption can obviously lie. It is however open to the occupancy tenant (the mortgagor) to sue for possession of his land if his title to it subsists. His cause of action for such a suit is different from what it would have been if the mortgage had been valid. In a suit for redemption the terms of the mortgage form an important part of the plaintiff's cause of action. Where the mortgage is invalid, no question as to the terms of it can arise. In a suit for possession of occupancy land in possession of the defendant under an invalid mortgage, the plaintiff's cause of action is his subsisting right to recover possession. No defence arising from the terms of the invalid mortgage can prevail. But the Court may and generally will put him on terms and award to the defendant such sum of money as had been advanced to the plaintiff. The offer of the plaintiff to redeem amounts to an offer of repayment of the sum received by him at the time of the mortgage, which sum the Court would direct the plaintiff to pay as a condition to his recovering possession of his occupancy holding.
7. Viewed in its proper perspective, a suit for redemption of an occupancy holding, illegally mortgaged by the plaintiff, is a suit for possession, the plaintiff offering to pay the sum advanced by the defendant. In my opinion, if there is no other objection to a suit for redemption of an alleged mortgage of occupancy holding being treated as a suit for possession, a decree may be passed in favour of the plaintiff on the admission of the defendant, who sets up a different mortgage provided the defendant is not taken by surprise and is not otherwise prejudiced.
8. In the case before me it was not disputed by the defendants that plots Nos. 27-1, 34.2 and 31 formed part of an occupancy holding belonging to the plaintiff's husband, who transferred them to the defendant's father about 32 years be-fore this suit on receipt of Rs. 99. The defendants call the transaction a mortgage, which implies that the agreement between the parties was that the plaintiff's husband would be entitled to recover possession on payment of Rs. 99. There is no allegation in the written statement; or anywhere else on the record which presents an obstacle in the way of the plaintiff recovering possession of her husband's occupancy holding on payment of Rs. 99; but as the plaintiff is claiming possession on grounds other than those mentioned in her plaint and as the defendants had no opportunity of putting forward all such defence as they would have been entitled to do if the plaintiff had originally claimed to recover possession of the allegation of facts disclosed by the defendants, it is only fair that the defendants should have that opportunity now.
9. It is possible that they may be able to establish that after the mortgage of the three plots admitted by them the landholder took ejectment proceedings under Section 57, Tenancy Act, and put an end to the occupancy rights of Kashi. It is equally possible that the landlord treated the holding as one abandoned by Kashi and took proceedings under Section 57, Tenancy Act, (References are to the old Act 2 of 1901, which was in force when the mortgage, admitted by the defendants, was made and till long afterwards). The learned advocate for the defendants-respondents also suggested the possibility of the defendants being in adverse possession for more than 12 years. In those circumstances I think it is at least possible that the plaintiff's right to recover possession of plots Nos. 27-1, 34-2 and 31 on payment of Rs. 99, which is clear enough on the record as it stands, may be found to be no longer a subsisting one and defendants may be able to establish one or more of the pleas referred to above. Accordingly I remit the following issues to the lower appellate Court for findings which shall be returned within two months : (1) Whether Kashi or the plaintiff was ejected by the land-holder from plots 27-1, 34-2 and 31? (2) Whether the landholder treated the occupancy holding, consisting of plots 27-1, 34-2 and 31 as abandoned by Kashi or the plaintiff and legally put an end to the occupancy tenure? and (3) Whether the right of the plaintiff's husband or of herself as an heir has been extinguished by the defendants' adverse possession? On receipt of the findings ten days shall be allowed for objections. Parties shall be at liberty to adduce fresh evidence.