Ghulam Hasan, J.
1. This revision application is filed bythe mortgagors and arises out of proceedingsunder S. 12, Agriculturists' Relief Act.
2. In order to properly appreciate the controversyit will be necessary to set out the pedigreeof the parties.
Pedigree of the mortgagors
Ram Parsad Singh Raghubar Singh
married to Vidya married to Dilao Kuar.
| | |
| Ram Samujh Singh Ram Dutt Singh
| | | |
Lachhman Singh Ram Bharose Rampher Dasrath
deceased=Mt. Singh Singh Singh
Pedigree of the mortgagees.
JAGAR NATH SINGH
jokhai Singh Mahadeo Singh
| | | |
Ganpat Dalpat Nageshwar Ajodhya
Singh Singh Singh Singh
Mata Prasad Singh Amrej Singh
3. On 23rd April 1920 a mortgage with possessionwas made by Ram Samujh Singh andRam Dutt Singh under the guardianship ofDilao Kuar in favour of Ajodhya Singh andGanpat Singh in respect of two plots, 494 secondsettlement=569 third settlement and 330 second settlement=407 third settlement for Rs. 190. The application, for redemption was made by RamDutt Singh against ten persons Ajodhya Singh,Amrej Sing and Mata Prasad Singh, (the twosons of Nageshwar Singh), Dalpat Singh, GanpatSingh, Jokhai Singh, Mahadeo Singh, RamSamujh Singh, and Vidya Kuar died during thependency of the revision application and theirlegal representatives were not brought on therecord. The reason for impleading persons otherthan the mortgagees as defendants given inpara 8 of the plaint was that as Jokhai Singhand Mahadeo Singh and the sons of Jokhai Singhhad acquired the mortgagee rights out of thejoint family funds and all the descendants ofJagar Nath were members of the joint Hindufamily governed by the Mitakshara and theywere in possession of the mortgaged property,they were necessary parties to the suit. In thepresent revision application we are concernedonly with plot no. 569. The material defence inrespect of this plot was that Mahadeo Singhhad no connection whatever with the mortgagees,that he was in possession as a tenant on arental of Rs. 6 per annum and was entitled toretain possession as such.
4. The Assistant Collector before whom thesuit was filed framed among others the following material issue:--
1. Whether Mahadeo Singh is the tenant of plotNo. 569?
He held that Mahadeo Singh had an interestin the property mortgaged and he was not in possession as a tenant but as mortgagee. Hedecreed redemption.
5. The learned District Judge on appeal heldthat there was no reliable evidence to show thatthe mortgage money was advanced from thejoint family funds and therefore Mahadeo Singhwas not a joint mortgagee of the land in suit.He accordingly held that
'the mortgagors-applicants should not, therefore, beentitled to actual possession of the said plot without determining the tenancy of Mahadeo Singh'.
6. The mortgagors aggrived by the decisionhave filed this revision and the sole ground mentioned is
'That Mahadeo Singh having been found to be theown uncle of Ajodhya Singh and forming a joint Hindufamily with him in execution of the patta with respectto the plot in suit in his favour cannot confer any tenancyrights so as to defeat the right of the applicant to present possession after redemption'.
7. As already stated during the pendency ofthis revision, Dalpat Singh and Vidya Kuar diedand their legal representatives were not brought on the record. Though O. XXII, Civil P. C.does not apply to a revision application, it has been held that if after the admission of a revisiona party dies and no application for substitution is presented within a reasonable time the application for revision abates in the sense that the proceedings shall cease unless good causefor delay is shown. Khuda Bakhsh v. Mahanand Tewari, 1947 oudh W. N. 221. No application for substitution was made in this case and the names were removed, but it is contendedon behalf of the applicants that the revisioncannot a bate for the contest in the present revision is not between the mortgagors and themortgagees in which were included Dalpat Singhand Vidya Kuar deceased and therefore there can be no question of conflicting decrees. Thiscontention in my opinion has force. The deceased, who were impleaded as being interestedin the mortgaged property were added as proformaparties and the real contest is between the mortgagors on the one hand and Mahadeo Singh as a tenant on the other the mortgageesnot being interested in this controversy.
8. The first contention is that there beingno patta or other evidence on the record regardingthe tenancy of Mahadeo Singh beyondcertain entries on the revenue papers, the lowerappellate Court was wrong in holding thatMahadeo Singh was a tenant and therefore heshould have been treated as a co-mortgagee beinga member of the Joint Hindu family. The finding arrived at by the lower appellate Court upon this point is a finding of fact which cannotbe challenged in revision. Badri Nath v. Ram Chandra, 1939 Oudh W. N. 193 and Murli Shukulv. Lalta Singh 1943 Oudh W. N. 169.) Theground of revision referred to above admits theexecution of a patta, though it is now agreedthat there was no patta. There is no groundchallenging the finding of the lower appellateCourt on this point. All that is urged is thatthe mortgagors' right to present possession after redemption cannot be resisted by Mahadeo Singhclaiming to be a tenant. The lower appellateCourt merely mentions that Mahadeo Singh isin actual possession and he cannot be oustedfrom that possession in these proceedings butthe Court comes to this conclusion without determining the question of tenancy.
9. The only question therefore which falls for determination is whether the mortgagors areentitled to actual possession as against MahadeoSingh. Reliance is placed on Ram Chand v.Raj Hans 3 ALL LJ. 517 and Guari v. Mangla : AIR1926All463 . The former was the case of a lease where the mortgagee, during theperiod of the mortgage, had transferred a portionof the mortgaged land under a lease. Themortgagor was directed to seek his remedy inseparate proceedings. He applied to the RevenueCourt to have his name recorded in respect of the tenancy plots but he failed. He thenbrought a regular suit for ejectment of tenantswhom the mortgagee had let into possession and that suit was decreed. In the second case thatmortgagees had made a sub-mortgage and their mortgagee interest had passed to the auctionpurchasers and they pleaded that they had takenthe land from the auction purchasers as tenants and acquired occupancy rights therein. Such is, however, not the case here. Here the land is in the possession of a third person setting up tenancy rights. The learned Judge deals with this aspect in the following words:
'The argument is that is instead of the originalmortgagee themselves somebody else, had obtained aletting of the land and had acquired and occupancy rightin the land it could not be said that he was a necessaryparty to the suit and that he should be ejected. Theargument no doubt has some force, but in my opinionit ought not to be allowed to prevail. The mortgageeswere bound by therie contract to hand over the propertyto the mortgagor intact.....'
The learned Judge recognised:
'There is no direct authority on the point either way.But on broad principles I am not at all inclined to let the original mortgagees, profit by an act of their own to the detriment of the interest of the mortgagor whoserights they were bound to guard on general principlesrecognised in S 76(e), T.P. Act.'
In the present case the mortgage deed places no restriction upon the mortgagees. Be that as itmay, thoses cases, are also distinguishable on theground that they arose under the ordinary law.The present case arises in proceeding underS. 12, Special Act. The point is however, coveredby a decision of Seth J. in Jagar Nath v. SrikantDube 1949 ALL. W.R. 205 decided on 23rd December 1948. It dissents from the case of RamKirpal v. Bhagwati Saran decided by BhargavaJ. on 29th October 1948, and published in 1949 ALL. W.R 214. The judgement of Seth J. isso clear and exhaustive on the subject that Iconsider it wholly unnecessary to deal with thepoint beyond expressing my entire agreement with his view. The learned Judge held that
'the jurisdiction of a Court. deciding an applicationunder S. 12, U. P. Agriculturists' Relief Act, whetheras 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 withinthe four corners of that section. It has jurisdiction only to adjudicate upon the question of redemption and no more. Such Court has jurisdiction to record a findingon the question of tenancy.'
The learned Judge followed his previous decisionin an unreported case, Bhagwati v. Ram Ugra Civil Revision No. 544 of 1945 (ALL.) decided on1st October 1948 and an unreported decision of Hamilton j. referred to at p 207 of the report.That was a case in which the mortgagee's fatherwas impleaded on the allegation that his namestood fictitiously recorded as tenant over some of the plots and that as a matter of fact the mortgagees themselves were in possession of those plots. The mortgagees' father pleaded thathe had no connection with the mortgageesand that he was in possession as a tenant similarlyin the present case Mahadeo Singh doesnot claim any connection with the mortgageesand he claims the right to continue in occupationboth against the mortgagor and the mortgagees. He does not claim this right as the representative of the mortgagees. Such a claimwhich is adverse both to the mortgagor and the mortgagee is foreign to a suit for redemptionand in an application for redemption under S. 12 the scope is much more restricted I hold therefore, that the scope of S. 12 does notpermit an investigation into the question of tenancy of a person claiming as a tenant both against the mortgagor, and the mortgagee, InRam Kirpal v. Bhagwati Saran in was foundthat the mortgage was in actual possession and he got the name of his nephew fictitiously enteredin the village papers in collusion with thepatwari. The present is a much stronger case,for here Mahadeo Singh is claiming as a tenant and there is no suggestion that his name is entered in the revenue papers fictitiously in collusion with the mortgagees. I see no reasonto differ from the view taken by Seth. J. and accordingly hold that the applicants cannot be allowed to have actual possession against MahadeoSingh in these proceedings.
10. Lastly it was contended that if Mahadeo Singh was in possession as a tenant of the plotbefore to mortgage, then the applicants willhave no claim to oust him but if he was let intopossession by the mortgagees, then the mortgagors must be restored to their possession and in order to determine this question of fact the case should be remanded. I am not prepared to allow this matter to be gone into at this stage.The mortgagors put up no such case in the Courts below and I cannot allow them to do soat this belated stage.
11. The result is that the application fails and is dismissed with costs.