1. This is a defendant's appeal and arises out of a suit for recovery of arrears of rent from Rabi 1341 Fasli to Kharif 1347 Fasli. The plaintiff claimed as the zamindar, by virtue of his adoption by Seth Hari Ram, the original zamindar. The defence, in the main, was three-fold. The plaintiff's adoption was denied. The other defence was that the claim was barred by limitation, as the defendant had prescribed title by adverse possession. A set-off of a sum of Rs. 144 was also claimed. Lastly, it was pleaded that the rent prior to Rabi 1344 Fasli was not recoverable, as it was remitted by an Act of legislation. The learned Assistant Collector, before whom the suit was instituted, remitted the issue of adoption to the civil Court. The learned Munsif found that the adoption was established. The revenue officer finally decreed the plaintiff's suit for a sum of Rupees 294-12-0, for one of the khatas, and Rs. 6, on account of the other khata, with pendente lite and future interest. This decree was challenged, in appeal, by the defendant. All the pleas were reiterated before the learned Second Civil Judge, but all of them were repelled by him. He found, as a fact, that the plaintiff's adoption by Hari Ram was proved. He also found that the defendant's case of adverse possession was not established. The plea of set-off was also rejected by him, in agreement with the learned revenue officer, on the ground that the defendant did not pay the necessary court-fee. He agreed with the Court of first instance that the United Provinces Stayed Arrears of Rent (Remission) Act, Act 18 of 1939, did not constitute a bar to the plaintiff's claim. In this view of the case, he dismissed the appeal. The defendant has come before me in second appeal. The findings on the question of adoption and also on the question of adverse possession are findings of fact and must be accepted in second appeal. The only important question, which demands consideration, is the application of the Act mentioned above. Section 3 of the Act enjoins that
all suits or applications for the recovery of arrears of rent, which have been stayed under the provisions of the United Provinces Stay of Proceedings (Revenue Courts) Act, 1937, shall be dismissed, and no Court shall entertain any suit or application for the recovery of arrears of rent...of that Act.
Section 5, however, makes it clear that
Section 3 shall not apply to a suit or application instituted or made against any person the rent payable by whom in the year 1344 Fasli was more than five hundred rupees or to any person who in the year 1937 was assessed to income-tax under the Income-tax Act, 1922,...or to any person whose land was assessed in the year 1344 Fasli, to a local rate of more than twenty-five rupees.
It was admitted before the learned Civil Judge that the local rate of the lands, held by the defendant as owner and as mortgagee, was more than Rs. 25 in the year 1344 F. It has been contended before me that the section contemplated payment only in his capacity as a proprietor and not as a mortgagee. The expression in the section is 'person' and not 'proprietor.' The words of the section do not, therefore, favour the contention raised by the appellant, when he seeks to draw a distinction between the appellant's capacity as a proprietor and his capacity as a mortgagee. This view of mine is in consonance with Jawahir Singh v. Mutsaddi Lal ('42) 1942 R.D. (Rev.) 384.
2. It has next been contended that the expression 'whose land' clearly connotes land of a proprietor, inasmuch as a usufructuary mortgagee is not entitled to say that the land is his. It is true that the interest of a usufructuary mortgagee is not the same as that. of a full proprietor; the equity of redemption is still outstanding and, so long as it remains so, the entire bundle of rights do not vest in the mortgagee; but, until redeemed, the usufructuary mortgagee is to all intents and purposes, the true owner. It is, therefore, to my mind, obvious that the Legislature did not contemplate any distinction between the case of a proprietor and that of a usufructuary mortgagee. At all events, the plain words of the section do not reveal such an intention.
3. It has also been argued that the Legislature must be deemed to have recognised some distinction between the case of a proprietor and that of a mortgagee, and reliance has been placed upon the analogy of a thekadar. To my mind, there is no analogy between a thekadar and a usufructuary mortgagee. A mortgage under the Transfer of Property Act creates an interest in the property. Such an interest cannot be claimed by a thekadar. Once a thekadar, he is always a thekadar and no lapse of time can invest him with a higher right. A usufructuary mortgagee has an interest in the property, which may, in default of redemption within the prescribed period of limitation, ripen into full proprietary right. It is, therefore, obvious that the law recognizes a wide distinction between a thekadar and a usufructuary mortgagee. I, therefore, think that the view taken by the Courts below is right and I dismiss this appeal with costs in all Courts. Leave to appeal under the Letters Patent is refused.