1. This is an application in revision under Section 116, Civil P.C. It has been filed by Ram Kirpal Misir, who was defendant 2 in a proceeding under Section 12, U.P. Agriculturists' Relief Act, started by Bhagwati Saran Misir against him and Rameshwar Misir, defendant l, in the Court of the Additional Munsif of Basti, on the basis of a usufructuary mortgage deed, dated 27th May 1902, for Rs. 650. The mortgaged property consisted of six plots of land, situate in village Belsar in the district of Basti.
2. The plaintiff Bhagwati Saran Misir claimed to be the legal representative of the mortgagors, and alleged that the entire mortgage money had been paid up out of the usufruct of the mortgaged property. He impleaded Ram Kirpal on the ground that Rameshwar Misir, (the mortgagee) and his own brother, Dwarka Misir, were the members of a joint Hindu family, that after the death of Dwarka, Rameshwar and Ram Kirpal son of Dwarka, continued to form a joint family and they were joint in estate as well as in business, that Rameshwar was a shrewd person, and, in collusion with the patwari, he got the name of Dwarka entered as a tenant in the mortgaged property, and that Rameshwar was in actual possession of the property and the name of Ram Kirpal was fictitiously entered in village papers.
3. The plaintiff's right to redeem the mortgage was admitted. It was also not disputed that he was entitled to the benefits of the Agriculturists' Relief Act and the Debt Redemption Act. One of the questions raised in the case was whether Ram Kirpal's name had been fictitiously entered as a tenant in village records or whether he was holding the land as a tenant as alleged by him. The issue on the question of tenancy thus raised was remitted to the revenue Court which returned a finding that Ram Kirpal was the tenant of the land which was covered by the mortgage, and he had been cultivating the same since 1310-F. The trial Court found that the entire mortgage money was still due and made an order for redemption on payment of the entire mortgage money, i.e., Rs. 650.
4. On appeal the learned District Judge of Basti held that Rameshwar Misir was joint with his brother, Dwarka, and also with his nephew, Ram Kirpal, and that the entry of Ram Kirpal's tenancy is village papers with regard to the plots mortgaged was altogether fictitious. Accordingly, he remanded the suit to the trial Court for determination of the amount of the usufruct of the mortgaged property.
5. In this revision, the learned Counsel for the applicant has contended that the Courts below had no jurisdiction to determine the question of tenancy rights between the plaintiff and Ram Kirpal; and that the provisions contained Chap. III, Agriculturists' Relief Act, more especially those relating to the procedure to be followed in connection with the applications under Section 12 of the Act, go to show that the Court has jurisdiction only to adjudicate upon the questions relating to redemption and those arising between the mortgagor and the mortgagee.
6. It appears that when an application is .made for redemption under Section 12, Agriculturists' Relief Act, and the mortgagor is found entitled to redeem and the mortgage sought to be redeemed is with possession the Court has also to make an order directing the mortgagor to be put in possession of the mortgaged property. If, in such a case, it is alleged that the mortgagee, who is actually in possession, has set up a third [person to defeat the rights of the 'mortgagor, the question which arises for determination is really a question relating to redemption of the mortgaged property, which arises between the mortgagor and the mortgagee. In order to decide the issue whether the mortgagor is entitled to get possession of the mortgaged property the question has to be decided by the Court dealing with the application for redemption.
7. In this particular case, it was clearly alleged in the plaint, and it has been found as a fact, that the mortgagee, Rameshwar Misir was actually in possession of the mortgaged property and he had got the name of his nephew, ,Ram Kirpal, fictitiously entered in village papers in collusion with the patwari. Without entering into the question raised by the pleadings of the parties, the Court would not have been in a position to decide whether the mortgagor could or could not be put in possession of the mortgaged property. If the mortgage had been satisfied and the mortgagor was entitled to redeem the mortgaged property, the question whether he (mortgagor) was entitled to get actual possession of the property, raised by the pleadings, could certainly be decided by the Court seized of the case.
8. On behalf of the applicant reliance has been placed upon a ruling of this Court reported in Bhup Singh v. Sheo Shanker : AIR1931All743 . The facts of that case were, however, different and it has no bearing on the present case. In that case, after executing a simple mortgage the mortgagor, by a subsequent document, had put the mortgagee in possession of two plots in lieu of interest authorising them to cultivate these plots or to let them out to tenants. The mortgagees, in the ordinary course of management, let out these plots to defendants, and the mortgagor, after redeeming the mortgage, sued the tenants for possession in the civil Court. It was held that the defendants could, if at all, be ejected by the revenue Court only. In the present case, which was properly instituted in a civil Court, the question for determination was whether, in redemption proceeding, under Section 12, Agriculturists' Relief Act, the mortgagor was entitled to raise the plea that the mortgagee had set up a third person to defeat his right to obtain possession over the property mortgaged and he was entitled to obtain possession against that person as well as against the mortgagee, who was actually in possession. The issue whether the mortgagee was or was not in actual possession could, undoubtedly, be decided in the said proceedings.
9. Reliance has also been placed on an un-reported decision of this Court in civil Revn. No. 544 of 1945 (Bhagwati Misir and Anr. v. Ram Ugrah Misir and Ors. decided on 1st October 1948) wherein Seth J. observed:
The jurisdiction of a Court, deciding an application under Section 12, U.P. Agriculturists' Relief Act, whether as a Court of original jurisdiction or as a Court of appeal, is a special jurisdiction conferred upon it by a special provision of the statute and is limited within the four couriers of that section. It has jurisdiction only to adjudicate upon the question of redemption and no more.
These observations cannot be interpreted to mean that in a case under Section 12, Agriculturists' Belief Act the Court has jurisdiction to decide only whether the mortgagor is entitled to redeem the mortgaged property, and if so on payment of what amount, if any, and it has no jurisdiction to enter into a question like the one raised in the present case. In order to decide whether the mortgagor could get back possession, as already stated, the Court has to decide the question whether the mortgagees had put up a fictitious person to prevent the mortgagor from obtaining possession over the mortgaged property. If the Court found that the allegations were untrue and the person concerned was a bona fide tenant, the Court would certainly, have no jurisdiction to oust him; but initially. the Court has jurisdiction to enter into the question raised.
10. Learned Counsel for the applicant has further contended that the cause of action against the mortgagee was quite different from the cause of action against Ram Kirpal and applicant, The cause of action which had given rise to the proceedings under Section 12, Agriculturists' Belief Act, was based on the allegation that the mortgage money had teen paid up and the plaintiff was entitled to redeem the mortgaged property. The mortgagee was in possession of the mortgaged property and if he had got another person's name fictitiously recorded in village records to deprive the mortgager of his right to obtain possession over the property mortgaged she cause of action for the suit against the mortgagee and that person would be the same.
11. Another question raised on behalf of the applicant is that a proceeding under Section 12, Agriculturists' Belief Act, is not a suit and as such the provisions of Section 288, U.P. Tenancy Act were inapplicable and the Court had no jurisdiction to refer the issue of tenancy to the revenue Court for determination. Reference has been made to a ruling of this Court reported in Jawahir v. Jadu : AIR1949All120 . In that case Harish Chandra J. held that an application under Section 12, Agriculturists' Relief Act cannot be treated as a suit and consequently the provisions of Section 238, U.P. Tenancy Act of 1939, were not applicable to such an application. The basis of this decision was the view that an application under Section 12 of the Act could not be treated as & suit.
12. There is a later decision of this Court imported in Balram Singh v. Dudh Nath A.I.R. (36) 1949 ALL. 100 Where the question whether a proceeding under Section 12 of the Act was or was not a suit was definitely raised and decided; and it was held by a Bench of this Court that proceedings under Section 12 of the Act were proceedings in a suit. The decision was based on the interpretation of Section 12 of the Act read with Section 26, Civil P.C. There can be no doubt that a proceeding under Section 12, Agriculturists' Belief Act can be treated as a suit. Section 288, U .P. Tenancy Act, comes into operation in a suit which is properly instituted in a civil Court and where a question of tenancy right is raised. The present proceeding was properly instituted in the civil Court and a question of tenancy right had arisen; consequently the issue was rightly referred to the revenue Court for decision.
13. Lastly, it has been contended by the counsel for the applicant that if the scope of Section 12, Agriculturists' Relief Act is to be widened it is likely to lead to a conflict of jurisdiction between a civil Court and a revenue Court. In my opinion, no such conflict is likely to arise in the circumstances of a case of the present nature. As we have already seen, the Court in dealing with an application under Section 12 of the Act has to decide (1) whether the mortgage money has been paid-up in part or in full, and (2) whether the mortgagor is entitled to obtain possession over the mortgaged property. In order to determine the second question the civil Court, in which the case had been properly instituted, has got the jurisdiction to determine whether possession ought;to be delivered over the property against the mortgagee as well as the person, who was alleged to be a trespasser and who claimed to be a tenant.
14. In this case the Court below has clearly found that Ram Kirpal the applicant, had no right to retain possession over the mortgaged property. Consequently, there is no reason to interfere with the decision of the Court below. The revision is, therefore, dismissed with costs.