1. Manna and others mortgaged certain zamindari plots of an area of about 12 bighas in favour of Jhak and Ramnandan Lal. The mortgagors transferred all their rights to Basant Lal. Basant Lal has redeemed half the mortgage and is mortgagor in respect of the remainder. The mortgagee rights in respect of the remainder have been soil to Mahadeo Pande in execution of a decree. Mahadeo Pande's name has been entered as mortgagee in the khewat. He is thus a recorded co-sharer.
2. The situation is now this: Basant Lal owns half the property and is mortgagee of the remainder. Mahadeo, the present appellant is the mortgagee of the remaining half. These remarks apply only to the area in dispute. That area is recorded as a portion of certain khata and in the remainder of the khata many other people are co-sharers.
3. Mahadeo's grievance was this: the area in dispute is cultivated by tenants. When he endeavoured to collect rents from those tenants through the Courts, he was opposed and was unable to collect the rents. He has now come into Court to claim his rights. The lower Appellate Court has given him a decree declaring that he is the mortgagee, but has refused him any other relief. He appeals against this decree.
4. It appears to me that following the recent Bench decisions in this Court in Bisheshar Singh v. Hanuman Singh A.I.R. 1922 All. 314 and in Sarbjit Singh v. Raj Kumar Rai A.I.R. 1922 All. 162, the appellant is entitled to a decree for joint possession. According to the latter decision he is not entitled to mesne profits. As he is a recorded co-sharer he can only obtain his profits in this matter by a suit in a rent Court. Section 167 of the Tenancy Act bars the jurisdiction of the civil Court in the matter.
5. In the result I modify the decree of the lower Appellate Court by granting the appellant a decree for joint possession. I do not, however, see my way to award him costs, and consider that he should pay the costs of the other side, for it appears to me that he himself is responsible for unnecessary litigation. As he is a recorded co-sharer there was nothing to prevent his collecting the profits in the ordinary way. Why a recorded co-sharer should wish to come into a civil Court to ask for a decree for joint possession is a question that can probably only be answered in the eastern districts. While permitting him modified relief I direct that Mahadeo pay his own costs and costs of the other side on the higher scale.