1. This is a second appeal by defendants first party against a decree of the lower appellate Court. The plaintiff originally sued for possession of the property detailed in the plaint. The first ground in second appeal is that as the plaintiff sued for possession the lower appellate Court was wrong in holding that the plaintiff was in possession and in granting the plaintiff a decree for declaration only. But as noted in the judgment of the Court of first instance an amendment of the plaint was allowed which changed the suit from one for possession into a suit for declaration only. The facts of this case are as follows; On 17th March 1866, Mt. Najiban, owner of the property, made a usufructuary mortgage for Rs. 250 to Gobind Sahai, the predecessor of defendants second party.
2. On 20th July 1873, Mt. Najiban made a second usufructuary mortgage of the same property and some other property for Rs. 1,900 to Bul Chand, etc., predecessors of defendants first party. That mortgage contained a stipulation that the mortgagees were to pay off the Rs. 250 due on the first mortgage and then obtain possession. It is admitted that Bul Chand etc. did not pay off this Rs. 250.
3. In 1916 defendant 16, Nasiruddin redeemed the first mortgage, deposited Rs. 250 in Court, and obtained possession. In January 1925 the plaintiff (a transferee of a share from Mt. Najiban) deposited his rateable share of Rs. 250 and redeemed his share of the mortgage. An application for mutation was made and it was ordered that defendants first set, the present appellants, should be entered as mortgagees in possession. The plaintiff therefore, sued in the civil Court, and the lower appellate Court has granted the plaintiff a declaration to the effect that the plaintiff holds the property in his possession as a mortgagor and that the defendants first set appellants are entered in the khewat only in the capacity of mortgagees and not in the capacity of mortgagees in possession. It was argued by the learned Counsel for the appellants that when the revenue Court had declared that the appellants were in possession it was not open to the civil Court to reverse this finding. No authority was shown for that proposition, and on the contrary Section 44 and Section 40(3), Act 3 of 1901 state that it is open to any one to go to the civil Court who is aggrieved by an order in mutation of the revenue Court.
4. The second ground of appeal is that the question of possession is res judicata between the parties by virtue of the decision of the Subordinate Judge of Saharanpur in 'suit No. 20 of 1875.' Bul Chand, etc., sued for possession in suit No. 25 of 1875 against Mt. Najiban and that suit was dismissed by the Court of first instance but decreed in appeal No. 20 of 1875. The lower appellate Court states that it was admitted that the prior mortgagees Gobind Sahai, etc., were entered till 1916. These prior mortgagees were not a party to the litigation in 1875 and that litigation cannot have affected them. At most it appears to have been a collusive suit between Mt. Najiban and the second mortgagees. No actual possession was obtained by Bul Chand, etc., on that decree. I do not consider, therefore, that the decree can have any bearing in the present case. It is to be noted that the matter was not represented before either of the lower Courts, and no issue on res judicata was framed. Presumably the reason was that because the first mortgagee was not party to that litigation, it could not be considered a matter of any weight.
5. The ground on which the lower appellate Court has proceeded apparently is that because Bul Chand, etc., the subsequent mortgagees, did not pay off the prior usufructuary mortgage and obtain possession they cannot claim that the plaintiff must redeem their mortgage before the plaintiff gets possession. Redemption is a remedy of obtaining possession from a mortgagee in possession by paying off the mortgage money. The defence put forward in the lower Courts by the appellants was that the plaintiff could not get possession till he redeemed the mortgage of 1873. Therefore, the question centered on who was actually in possession. It is contended in second appeal that the trial Court was wrong in recording oral evidence on a question of actual possession but no reason is given for this contention. The finding of fact that the plaintiffs are actually in possession is a finding which cannot be disturbed by this Court in second appeal. There was evidence on which the lower appellate Court could base such a finding. The appellants neglected to carry out part of the contract in their deed of mortgage by which they undertook to pay off the usufructuary mortgagee in possession. Not having done so the appellants failed to obtain possession. The legal remedy of the appellants, therefore is not to insist on the plaintiff redeeming their mortgage before plaintiff can obtain possession. The decree of the lower appellate Court appears to be correct. The appeal is dismissed summarily.