1. Guptar Dube and Loknath Dube executed a usufructuary mortgage in favour of Jagarnath and Suraj Nath on 23rd May 1922, for a sum of Rs. 1,300. It was registered on 22nd June 1922. The property mortgaged consisted of fourteen specific plots comprising an area of 3.32 acres. The mortgagors are dead. Their sons applied under Section 12, U.P. Agriculturists' Relief Act for the redemption of the mortgage. They impleaded as opposite parties not only the two mortgagees, Jagarnath and Suraj Nath, but also their father, Rachha Sahu. Rachha was impleaded on the allegation that his name stood fictitiously recorded as a tenant over two of the mortgaged plots, Nos. 554 and 240, comprising an area of 34 acres. It was alleged that, in fact, the mortgagees themselves were in possession of these two plots. The plaintiffs prayed for actual possession of all the plots mortgaged including the aforesaid two plots over which Rachha's name was recorded as a tenant. Rachha pleaded that he had no connection with the mortgage, that he was in possession as a tenant and not as mortgagee and that the suit was bad for multifariousness. An issue was framed on the point, whether Rachha was a tenant of these two plots or not. The application for redemption having been made in the Court of a Munsif, the issue with regard to Rachha's tenancy, was referred to the revenue Court for a finding. The Revenue Court returned a finding in favour of Rachha, and accepting that finding, the Court of first instance gave a decree for redemption to the plaintiffs or payment of Rs. 624-10-0 and further directed by means of that decree that the plaintiffs will get actual possession of the plots mortgaged excepting the two plots which were being occupied by Rachha as a tenant. The lower appellate Court modified the decree of the Court of first instance in respect of two matters. It allowed redemption on payment of Rs. 374-10.0 only instead of on payment of Rs. 624-10.0 and reversing the finding returned by the revenue Court and holding that Rachha was not a tenant of the aforesaid two plots, it directed possession of all the fourteen plots to be given to the plaintiffs.
2. This application in revision is directed against the aforesaid decree of the lower appellate Court. The mortgagees and Rachha have both joined in making this application. The mortgagees contend that the lower appellate Court has adopted a wrong basis for the calculation of profit and has also erred in crediting the mortgagees with only Rs. 5 annually on account of Government revenue paid by them instead of crediting them with Rs. 6 odd on that account. The questions raised by these applicants do not fall within the purview of Section 115, Civil P.C., Therefore, the decree of the lower appellate Court cannot be interfered with in a revision even if these contentions be sound. This application in revision in so far as it is on behalf of the two mortgagees is, therefore, liable to be dismissed.
3. The contention put forward on behalf of Rachha Sahu is that the Courts below had no jurisdiction to adjudicate upon the questions of tenancy in these proceedings, under Section 12, Agriculturists' Relief Act, and, for this reason, the findings on the question of tenancy and the decree granted against him should be set aside. In support of this contention reliance has been placed on my judgment in Bhagwati Misir v. Ram Ugra Misir, Civil Revn. No. 544 of 1945, decided on 1st October 1948, wherein I held as follows:
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 corners of that section. It has jurisdiction only to adjudicate upon the question of redemption and no more. The lower appellate Court had, therefore, no jurisdiction to record a finding on the question of tenancy and that finding should be set aside.
3a. Learned Counsel for the opposite parties points out that my decision has been dissented from by Bhargava J. in Ram Kripal v. Bhagwati Saran, civil Revn. No : AIR1949All318 . It does appear from a perusal of the judgment in Ram Kripal's case : AIR1949All318 that my learned brother Bhargava J. has taken a contrary view, though he has not expressed his dissent in express words, and has not referred to that part of my judgment where I definitely said that the lower Court had no jurisdiction to record a finding on a question of tenancy. The view of Hamilton J. in Mt. Thakurain Tiwarin v. Chandi Prasad, Civil Revn. No. 199 of 1945, decided on 20th February 1946, is, however, more in accordance with the view expressed in Bhagwati Misir's case Civil Revn. No. 544 of 1945 than with the view expressed in Ram Kripal's case : AIR1949All318 .
4. I have reconsidered the question of jurisdiction in the light of the observations made by my learned brother, Bhargava J. in his judgment in Ram Kripal's case : AIR1949All318 , bearing in mind the weight and the respect that attaches to that judgment. It is my misfortune, however, that I find myself unable to concur in the conclusions arrived at in that judgment.
5. The U.P. Agriculturists' Relief Act has provided a cheap, speedy and summary procedure for redemption of mortgage executed by agriculturist debtors. The jurisdiction to apply this special summary procedure and to grant redemption of mortgages and possession of mortgaged properties by means of it has been conferred not only on civil Courts but also on certain officers who do not possess jurisdiction to entertain such cases and to grant such reliefs outside the Act. This special procedure abrogates the ordinary well established procedure. It makes the District Judge the final arbiter in the case, and shuts out an appeal to the highest Court of appeal in the province. It has been professedly enacted for the disposal of applications under Section 12 of the Act. The determination of the question, whether the Courts below had jurisdiction to adjudicate upon the issue relating to tenancy rights in this case depends, therefore, upon the determination of the further question, whether the dispute about the tenancy rights falls within the purview of Section 12, Agriculturists' Relief Act.
6. Bhargava J. does not seem to dissent from this view, for the very ratio decidendi in Ram Kripal's case : AIR1949All318 (ubi supra) is that the decision of the question of tenancy, in such a case, relates to redemption and is not outside Section 12 of the Act. It was not disputed even in this case, as, indeed, it could not be disputed, that the Courts below had no jurisdiction to determine the issue relating to tenancy in these proceedings, if it did not relate to a matter covered by Section 12 of the Act. The relevant portion of Section 12 runs as follows:.an agriculturist who has made a mortgage...may...file an application...in such form and giving such particulars as...and praying for an order directing that the mortgage be redeemed, and, where the mortgage is with possession, that he be put in possession of the mortgaged property.
7. It is obvious that the scope of the section is confined to matters of redemption alone, including, of course, restoration of possession of the mortgaged property to the mortgagor. The contention put forward on behalf of the mortgagors opposite parties is that the determination of the question of tenancy relates to redemption and falls within the scope of a redemption suit.
8. It has been consistently held that a claim by a third person, adverse both to the mortgagor and mortgagee, is outside the scope of a mortgage suit, that it should not be determined in such a suit and that the adverse claimant should be dismissed from it. Jaggeswar Dutt v. Bhuban Mohan Mitra 33 Cal. 425, followed by this Court in Khairati v. Banni Begam 30 ALL. 240, Joti Prasad v. Aziz Khan 31 ALL. 11 and Gobardhan v. Mana Lal A.I.R. (5) 1918 ALL. 81, is the leading case on this point. To the same effect are the decisions of other High Courts in Rukmani Ammal v. Ankama Naidu : AIR1926Mad744 , Maung San Myaing v. U Pon Gyaw A.I.R. (11) 1924 Rang. 240, Nemasa v. Madhorao A.I.R. (29) 1942 Nag. 33, Matomal v. Bhanwarmal A.I.R (27) 1940 Sind 103 and Galstaun v. Mirza Abid Husain A.I.R. (11) 1924 Oudh 19. Their Lordships of the Judicial Committee have expressed the same view in Nilakant Banerji v. Suresh Chunder Mullick 12 I.A. 171 and Radha Kunwar v. Reoti Singh A.I.R. (3) 1916 P.C. 18. The rule is subject to an exception which shall be considered hereinafter. The rule is founded on two broad grounds, namely:
(1) that a suit to enforce a mortgage in which the adverse claims of persons not privy to the mortgage and setting up a title paramount to that of the mortgagor and the mortgagee, are sought to be investigated, is open to objection on the ground of misjoinder and multifariousness and
(2) that if adverse claims be allowed to be litigated in a mortgage suit, such claims may obviously be determined by a Court which would have no jurisdiction to entertain a suit for their determination, if properly framed. How the suit becomes multifarious will appear from the following short quotations from Juggeswar Dutt's case 33 Cal. 425 3 C.L.J. 205 and the two cases decided by the Judicial Committee, viz., Nilakant's case 12 I.A. 171 and Radha Kunwar's case A.I.R. (3) 1916 P.C. 18 (ubi supra):
It is not competent for the mortgagee to make as party defendant, one who claims adversely to the title of the mortgagor and mortgagee. He is a stranger to the mortgagee, has no connection with the mortgage, and as his adverse claim of title cannot in any way be affected by the mortgage suit in which he has no interest, he cannot be made a party for the purpose of litigating such claims of title. (Juggeswar's case 33 Cal. 425 supra, p. 433).'the mortgagee cannot be permitted to debate the title of his mortgagor in a suit for foreclosure or sale because the Court can go no further in such a bill, but to take away the equity of redemption and leave the plaintiff such title as he has.' (per Nottingham, L. C. in Anonymous (1678) 2 Ch. Cas. 244, cited in Juggeswar's case 33 Cal. 425 P.C. supra, p. 436.) So that the result was this, that Khogendra, being brought there as having purchased subsequent to the mortgage, sets up a paramount title, and does not accept his position as a person who is either to redeem or be foreclosed. Upon that defence being raised the case came on for settlement of issues before Markby J., and he, finding a defence raised which was quite foreign to a mortgage suit, considered that he had no option but to dismiss Khogendra, which he did with costs. It may be mentioned that there were several other purchasers of other portions of the mortgaged property who were made parties and who also alleged paramount titles in themselves, so that the suit would have been multifarious and confused in the highest degree if it had gone on in that shape.' (Per Lord Hobhouse, in Nilakant's case 12 I.A. 171 supra, pp. 176-177).
As has already been pointed out, the appellant could under no circumstances have been made responsible for the amount of the mortgage nor could its extent in any way whatever have in the least degree varied her rights. In truth the confusion has arisen because the cause of action against the appellant, that is to say, the right to obtain a declaration of title against her adverse claims, has been joined with another which was quite distinct, from the enforcement of rights under a mortgage (vide Radha Kunwar's case A.I.R. (3) 1916 P.C. 18 supra, at p. 493).
9. It is true that in all the cases referred to above, the suit in which the adverse claim was set up was a suit to enforce a mortgage and not a suit to redeem it. It would, however, be evident from the above quotations that the ratio of the rule applies equally to a suit for redemption. Applicant Rachha professedly disclaims any connection with the mortgage. He has expressly pleaded that he is interested neither in the mortgage security nor in the equity of redemption. He claims a right both against the mortgagor and the mortgagee. He claims to have acquired tenancy rights which entitle him to continue in occupation of the two plots in dispute under tenancy legislation. He does not claim to share any rights with the mortgagees, nor does he claim any right as their representative.
10. Just as the scope and purpose of a suit for foreclosure is to cut off the equity of redemption, so the scope and purpose of a suit for redemption is to wipe out the mortgage, and just as a mortgagor is estopped from denying his title to mortgage any parcel of the mortgaged property, so the mortgagee is estopped from denying the mortgagor's title to redeem any parcel of the mortgaged property. A claim adverse both to the mortgagor and mortgagee is as much foreign to a suit for foreclosure or sale as to a suit for redemption, because in neither case does the adverse claimant claim any interest in the mortgage security or in the equity of redemption. A suit for redemption in which adverse claims are sought to be investigated would, therefore, be as much bad for multifariousness as a suit for foreclosure or sale would be on the same ground. I am supported in this view by a decision of the Bombay High Court in Satagauda Appana v. Satappa A.I.R. (7) 1920 Bom. 96 in which it was observed that:
It is obvious that a suit for redemption is a suit between the mortgagor and the mortgagee, and only those parties can be joined who claim an interest in the mortgage security or in the right to redeem. For if you bring in outsiders who claim a title to the property independently of the rights of the mortgagor and the mortgagee, you are introducing entirely new matter into the suit, new matter which would be absolutely irrelevant to the issues which would be framed in the mortgage suit.
11. The second of the two grounds on which the rule was founded applies, a fortiori, to an application for redemption under Section 12, Agriculturists' Relief Act, for Section 242, U.P. Tenancy Act read with Sections 60, 63 and 180 of that Act completely ousts the jurisdiction of a civil Court either to eject a person claiming tenancy rights or to grant any declaration about such rights.
12. It has already been stated that the rule in Juggeswar's case 33 Cal. 425 is subject to an exception according to which, if in a mortgage suit a question of paramount title raised by a defendant is tried without objection, neither party can ask for a reversal on the ground that the issue was not properly triable in the action.
13. Learned Counsel for the opposite parties has cited a large number of cases which support the rule contained in the exception. The ground upon which the exception is founded is that in such a case the decision of the Court is not without jurisdiction. A civil Court has jurisdiction to decide a suit based on a mortgage as much as a suit relating to an adverse claim. The misjoinder of causes of action in respect of two such claims may result in making the suit multifarious, but it does not affect the jurisdiction of the Court in any way. The exception cannot apply to a case such as the present where the Court has no jurisdiction to determine any question not falling within the scope of redemption and where the Court has no jurisdiction to determine questions of tenancy if a suit in respect of such questions alone were instituted.
14. I am thus led to the conclusion that the determination of an adverse claim to tenancy rights is outside the scope of a redemption suit.
15. A consideration of the procedure laid down for the trial of an application under Section 12 in the Act also points to the conclusion that an adverse claim is outside the scope of an application under Section 12. When such an application is presented and the deposit made, the Court is required to issue a notice to the mortgagee to show cause why redemption should not be allowed (Section 13). No notice is required to be issued to any other person. If the mortgagee appears and accepts the deposit in full discharge of his mortgage, the Court is required to pass an order for redemption with any further investigation (Section 14). This indicates that no inquiry of any kind is to be held if the mortgagee accepts the deposit in full discharge of his mortgage. A date for a trial or inquiry is to be fixed only if the mortgagee does not accept the deposit in full discharge (Section 15). There is no procedure prescribed for a case where the mortgagor puts forward a claim against a third person and the mortgagee accepts the deposit in full discharge and thus ceases to have any interest in the controversy. On the contrary, Section 14 shuts out all enquiry when a deposit is accepted in full discharge of the mortgage. A reference to Section 16 will make the position still more clear. It precisely lays down what the Court is required to dc when the de-posit is not accepted in full discharge of the mortgage. The scope of the enquiry that a Court is permitted to hold is limited to the determination of the two questions, whether the applicant is entitled to redeem the mortgage and whether the money deposited by him is sufficient. There is do scope for the inquiry of an adverse claim under Section 15 of the Act and there is no other provision in the Act under which a claim may be investigated.
16. I have already stated that I have given a very careful and respectable consideration to the observations contained in Ram Kripal's case : AIR1949All318 (ubi supra). I will now proceed to a consideration of the reasons given in that judgment in support of the view from which I have the misfortune to diffier. This will also dispose of the argument advanced by the learned Counsel for the opposite parties in support of the decision of the Courts below, for his arguments closely follow the reasoning in Ram Kripal's case : AIR1949All318 . On a careful analysis of the observations made in Ram Kripal's case : AIR1949All318 the reasons in support of the view that the determination of tenancy rights in such cases falls within the scope of Section 12 appear to be as follows: (i) restoration of the mortgaged property to the mortgagor is an integral part of redemption. The mortgagor has been specifically authorised to ask for possession of the mortgaged property by an application under Section 12 and a duty has been east upon the Court, disposing of such an application, to put the mortgagor in possession of the mortgaged property by Section 18 of the Act. The question of tenancy right has, therefore, to be decided to put the mortgagor in possession of the mortgaged property, (ii) where a mortgagee sets up a third person to defeat the rights of the mortgagor to recover possession of the mortgaged property, the question that arises for determination relates to redemption and arises between the mortgagor and mortgagee, (iii) the cause of action against the mortgagee and the person fictitiously set up is the same cause of action, and (iv) the Court can proceed to the stage of finding out whether the third person who has been fictitiously set up is a bona fide tenant, and that if the Court finds that he is a bona fide tenant it would have no jurisdiction to oust him.
17. So far as the first reason is concerned, it has to be conceded that it is a part of the duty of the Court that orders redemption to put the mortgagor in possession of the mortgaged property, but this by itself is not sufficient to determine the question under consideration without the consideration of what is meant by the phrase 'mortgaged property.' 'Mortgaged property' does not mean a physical object like a house or village or a plot of land. It has been held by a Full Bench of this Court in Ram Shankar Lal v. Ganesh Prasad 29 ALL. 385 that the words 'mortgaged property' mean the interest in specific immovable property which the mortgagor professes to transfer, whatever the interest may be. This is how these words have been interpreted by the Calcutta High Court also in Juggeswar Dutt's case 33 Cal. 425 (ubi supra). No doubt the words 'mortgaged property' occurring in the Transfer of Property Act were the subject of interpretation in these two cases; but there is no reason to suppose that these words have been used in any different sense in the U.P. Agriculturists' Relief Act. The duty imposed upon the Court to put the mortgagor in possession of the mortgaged property, therefore, does not require that the mortgagor should be put in possession of any physical object, and where proprietary rights are mortgaged, all that the Court is required to do in such a case is to put the mortgagor in possession of the proprietary rights transferred by way of mortgage. In such a case, it is the proprietary rights alone that constitute the property mortgaged and it is the possession of such rights alone that the mortgagor may seek by means of an application under Section 12. It is common knowledge that the landed zemindari property is generally in the actual occupation of tenants, and proprietary possession is exercised by realisation of rent from the tenants in occupation. The delivery of possession of proprietary rights in zemindari property, therefore, does not require the dispossession of the tenants in actual cultivatory occupation.
18. In the present case the tenancy rights were not mortgaged and proprietary rights alone were transferred by way of security under the mortgage. For the restoration of possession of those proprietary rights, as distinct from the physical object, the land, it was not necessary to determine the claim of any person claiming different kinds of rights, namely, tenancy rights, in the same physical objects. Moreover, the only person against whom a mortgagee may seek possession and the only person against whom the Court may put a mortgagee in possession would be a mortgagee or any person claiming through him. To hold that a mortgagor may be put in possession as against adverse claimants also in a proceeding under Section 12, Agriculturists' Relief Act, would lead to startling results. To take a concrete case, A is the owner in possession of a valuable house, say worth Rs. 50,000. B, without any right, mortgages that house to C for a sum of Rs. 100. B then makes an application against c for the redemption of the mortgage and joins A also as an opposite party on the allegation that A has been set up by the mortgagee to defeat his claim of redemption, Such an application for redemption would lie in the Court of a Collector, or, where the powers of the Collector have been delegated, it would lie in the Court of an Assistant Collector. I do not find it possible to concur in the view that an Assistant Collector, or a Collector has jurisdiction to adjudicate upon A's title to this valuable property in a proceeding under Section 12, Agriculturists' Relief Act. I find it still more difficult to concur in the view that A can be deprived of this valuable property if, unfortunately for him, the District Judge, either in agreement with the Assistant Collector or in disagreement with him, comes to the conclusion that A has no title to the house. In my judgment the jurisdiction conferred by Section 18 to put the mortgagor in possession of the mortgaged property is confined to the dispossession of the mortgagee and his representatives alone. It is, therefore, not necessary to determine the question of tenancy for the purpose of putting the mortgagor in possession of the mortgaged property.
19. The second reason that the question that arises for decision when an adverse claim of tenancy is set up, is one arising between the mortgagor and the mortgagee completely ignores the claimant, for which course there appears to be no justification, unless it be assumed that the claim set up is a mere eye-wash. But this is the precise question to be determined. Such an assumption cannot be justified on any principles which regulate judicial investigation. The claimant is the person vitally interested in the de termination of the question, whether his claim is substantial or a mere eye-wash. The question, therefore, is one that arises between the mortgagor and the claimant, rather than between the mortgagor and the mortgagee. The point for consideration, therefore, is whether the determination of this controversy, between the mortgagor and the claimant, is within the scope of a mortgage suit and thus within the jurisdiction of the Court seized of an application under Section 12, Agriculturists' Relief Act. The claim in Nilakant's case 12 I.A. 171 (mentioned before) was a mere eye-wash, and yet their Lordships of the Judicial Committee held that it was outside the scope of a mortgage suit. In my judgment it is the nature of the claim itself, and not whether it is ultimately found to be well founded or ill founded, that determined whether it is within the scope of a redemption suit or not. I am further of opinion that it is not within its scope. It is not within the competence of a mortgagor to confer jurisdiction on the Court dealing with an application under Section 12, to adjudicate upon such a claim by merely alleging it to be an eye-wash in the face of the protest on the part of the claimant, that it is real and substantial. This also answers the fourth reason that the Court has jurisdiction to proceed to the stage of finding out whether the claim to tenancy has been established or not. If the controversy is outside the scope of a suit for redemption and I have tried to demonstrate that it is, the Court would have no jurisdiction to proceed to deal with the controversy up to any stage. It would have no jurisdiction to proceed at all to deal with the controversy.
20. The third reason, namely, that the cause of action in respect of redemption and the determination of the adverse claim is the same, is opposed to the decision of their Lordships of the Judicial Committee in Radha Kunwar's case A.I.R. (3) 1916 P.C. 18 (ubi supra), wherein their Lordships remarked in the passage already quoted that the cause of action against the adverse claimant was quite distinct from the cause of action for enforcement of rights under a mortgage.
21. In conclusion, on a reconsideration of the whole matter, I have not been able to persuade myself to alter the view to which I gave expression in Bhagwati Misir's case Civil Revn. No. 544 of 1945 (ante).
22. Reliance was also placed on Section 21, Agriculturists' Relief Act wherein 'mortgagor and mortgagee' have been defined to include the successors-in title of original mortgagor and the original mortgagee. But this section cannot be of any help to the opposite parties because the successors-in-title can only mean the successors-in-title in the interest created by the mortgage.
23. Lastly Section 27 of the Act, which makes the Code of Civil Procedure applicable to proceedings under Section 12, was relied upon and it was contended that the provisions about the joinder of causes of action contained in the Code of Civil Procedure would apply to such a case. I am unable to accept this contention. In the first place, because even in a regular suit the joinder of such causes of action would result in the defect of multifariousness for which ample authority has already been quoted, and, in the second place, because causes of action may not be joined so as to permit Court to adjudicate upon a cause of action which is outside its jurisdiction.
24. There is yet another reason why the question of tenancy rights should not have been gone into in the present case. It was not at all alleged in the application under Section 12 that Rachha was actually in possession of the disputed plots. All that was alleged was that his name had been fictitiously entered in the village papers. On the plaintiffs' own showing it was not necessary to dispossess Rachha in order to give possession of the mortgaged property to the mortgagors. Mt. Thakurain Tiwarin v. Chandi Prasad, Civil Revn. No. 199 of 1945 (ubi supra) was such a case. Dealing with a similar situation, Hamilton J. observed as follows:
In the plaint it is stated that these ladies were not in possession in any capacity and they were impleaded only because their names appeared in certain revenue papers and appeared there wrongly. Presuming that there could be any decree for possession against anyone other than the mortgagee in a suit brought on the basis of a usufructuary mortgage, and I must not be misunderstood to agree to this generally, I do not see how one will be entitled to a decree (or possession against some one who is not in possession, merely because the name is entered in the revenue papers. On the facts as shown there is nothing to establish that the plaintiffs were entitled to a redemption decree under Section 12, Agriculturists' Relief Act against these ladies on the plaint itself and consequently that the trial Court had any jurisdiction, as no cause of action was shown against defendants 2 to 4, to pass a decree against these defendants.
I respectfully agree with these observations.
25. For the reasons indicated above, the application in revision on behalf of Jagarnath Sahu and Surajnath Sahu is dismissed with costs, and the application on behalf of Rachha Sahu is allowed, the decree against him is set aside and it is ordered that he be dismissed from the suit. Rachha Sahu will get his costs from the plaintiffs mortgagors who were applicants in the Court of first instance.