1. The sole question which calls for decision in this second appeal is whether the plaintiffs' appeal in the lower appellate Court was incompetent, as held by the learned Additional District Judge. The suit, which has given rise to this appeal, was brought by the appellants for profits under Section 226, Agra Tenancy Act 3 of. 1926. The claim related to three 'pattis' including patti No. 8. It was pleaded by the defendant inter alia that the plaintiffs had no right to receive profits of any part of patti No. 8. The plaintiffs claimed to be entitled to half of the profits of that patti, the other half admittedly belonging to the defendant. The latter, however, alleged that the plaintiffs' half-share had been in his possession for a considerable length of time under a usufructuary mortgage. The question thus arising between the parties was whether, the plaintiffs were not entitled to any part of the profits of patti No. 8 by reason of the fact that their share had been the subject of a valid usufructuary mortgage in favour of the defendant, which mortgage subsisted on the date of the suit. The defence prevailed in the trial Court. The plaintiff's claim to profits in respect of the other two pattis was partly decreed. Various questions, however, had arisen between the parties with regard to those pattis. The plaintiffs preferred an appeal to the Court of the Distict Judge, Cawnpore, reiterating their claim to profits in respect of patti No. 8. A specific ground was taken in the memorandum of appeal to the Diatict Judge. The learned Additional District Judge gave effect to the preliminary objection raised on behalf of the defendant that no appeal lay to the District Judge, as the subject matter of the original suit was below Rs. 200 and no question of proprietary right was involved. Apparently the learned Judge thought that the question whether the plaintiffs' share was in possession of the defendant under a usufructuary mortgage was not a question of proprietary right. It is not disputed that no appeal lies to the District Judge in a suit for profits, if the value of the subject matter of the suit was below Rs. 200 and no question of proprietary right was in issue between the parties claiming such right in the Court of first instance and in issue in appeal. It is argued by the learned advocate for the appellants that, where the existence or non-existence of the mortgagee right in a proprietary tenure is in dispute between the parties, a question of proprietary right is involved. In my opinion this contention is sound. Mortgage is defined in Section 58 of the Transfer of Property Act as a
transfer of: an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan.
2. Where the immovable property on which the mortgage operates is a proprietary interest, the mortgage is undoubtedly a transfer of part of his proprietary right by the mortgagor to the mortgagee. 'Where the fact of such mortgage is in question, the issue in substance is whether a proprietary interest was carved out of the full proprietary right and transferred from the mortgagor to the mortgagee and to this extent a question of proprietary right is involved. Section 242, Agra Tenancy Act (3 of 1926) does not make it a condition of appeal lying to the District-Judge that the whole of the proprietary interest should be in dispute between the parties. It is enough if a question of proprietary right, which may embrace part of the proprietary right is involved. As to whether the defendant is a usufructuary mortgagee of the plaintiff's share and, therefore, the latter is not entitled to claim profits in respect of such share is, in my opinion, a question of proprietary right within the meaning of Section 242 of the Agra Tenancy Act (S of 1926), This view finds support from Kalyan Mal v. Samand (1913) 35 All. 157 and Dhirja v. Mithan Lal A.I.R. 1923 All, 562, both of which however are cases under the Agra Tenancy Act (No 2 of 1901). The language (c)f Section 242 of the present Act is substantially the same as that used in the corresponding Section 177 of Act 2 of 1901. The learned advocate for the respondent has drawn my attention to Bhairon Singh v Kalab Abid Ali (1884) A.W.N. 45 in which it was held with reference to Section 189 of the N.W.P. Rent Act (No 12 of 1881) that no appeal lay where the only controversy between the parties was whether the plaintiff or the defendant had the right to make collections. I do not think that, that case is any guide to the determination of the question involved in the appeal before me.
3. In view of the case I have taken, this appeal must succeed. It is accordingly allowed with costs, and the case is remanded under Order 41, Rule 23, Civil P.C., to the lower appellate Court with a direction that the appeal be re-instated under its original number and disposed of on the merits. The Court-fee paid by appellants in this Court shall be refunded.