1. These are two appeals by the same set of plaintiffs and are directed against the same set of defendants.
2. The facts of the case are given with sufficient detail in the almost exhaustive judgment of the learned District Judge. Only one point is not mentioned in that judgment, but on it there is no controversy.
3. The plaintiffs predecessor-in-title Deoki Singh, made a usufructuary mortgage of sir plot bearing No. 90, dated the 27th of June, 1861, in favour of one Nandu Bhaiya. It is this mortgage that is being now sought to be redeemed by Deoki Singh's sons, the plaintiffs in the case. The defendants to the suit claim to be the proprietors of the entire property which once belonged to Deoki Singh under various transactions, most of which are detailed in the judgment of the learned District Judge. It appears that Deoki Singh, after executing the mortgage of the 27th of June, 1861, made a mortgage by conditional sale of his entire zamindari property on the 29th of September, 1861 in favour of one Sundar Prasad. Janki Prasad, the predecessor-in-title of the defendants, and another brought a suit for pre-emption. The result was that the entire mortgage over the entire property of Deoki Singh was split up into two equal shares and one share was given to Janki Prasad as the pre-emptor on payment of half their mortgage-money. The plaintiffs who had pre-empted the other half did not pay the purchase-money and the property remained with the mortgagee Sundar Prasad. Sundar Prasad's interest was, therefore, reduced to one-half of the entire mortgage. Subsequently it appears that in 1874 or thereabout Janki Prasad foreclosed his half interest in the mortgage and became the owner of one-half of Deoki Singh's property. This incident is, not mentioned in the judgment of the learned District Judge, but documentary evidence has been read out to me from the record and the fact is mentioned in the written statement) of the defendants. Deoki Singh's sons, the plaintiffs, do not claim to possess any proprietary interest whatsoever in the property which once belonged to Deoki Singh. In 1887 Sundar Prasad's heirs Doda Singh and others brought a suit for foreclosure of one half-share in the mortgage. To this suit Janki Prasad's sons were parties. Deoki Singh was also a party. The suit ended in a compromise dated the 28th of February, 1887. The learned District Judge has relied on a portion of this compromise and has inferred that Deoki Singh's interest in sir lands came to an end by virtue of the provisions of the compromise. We can leave this point for the present. As one of the results of the compromise, Janki Prasad's heirs paid up the heirs of Sundar Prasad and became, by foreclosure, the owners of the remaining half of the property of Deoki Singh. Thus, the defendants are the proprietors of the entire property which once belonged to Deoki Singh. There is no controversy on this point.
4. It is common ground that the mortgage held by Nandu Bhaiya was redeemed on the 28th of June, 1887, by the ancestors of the defendants. Deoki Singh's sons now ask that they should be allowed to redeem the mortgage of the 27th of June, 1861. The question is whether they are entitled to do so,
5. As I have stated, the learned Judge relied on the compromise of the 28th of February, 1887 as establishing the fact that Deoki Singh's interest in the sir lands was relinquished. I have heard the entire compromise and I could find nothing in the document which would indicate that Deoki Singh was giving up his interest as an ex-proprietary tenant in Plot No. 90, which was not in his possession. There can be no doubt that the proprietary interest of Deoki Singh in Plot No. 90 (the plot in suit) was transferred to the defendants' ancestors by virtue of the compromise and by virtue of the foreclosure proceedings taken by the sons of Janki Prasad in 1887. The question is whether Deoki Singh relinquished his ex-proprietary interest in Plot No. 90 by virtue of the compromise. The compromise was read out to me and I have not been able to find any statement anywhere in it, which can indicate that Deoki Singh was giving up his tenancy right in Plot No. 90 which was, it must be taken, in the possession of Nandu Bhaiya or his heirs since the date of the mortgage.
6. The learned District Judge was of opinion that no ex-proprietary interest could accrue to Deoki Singh in Plot No. 90, It appears that ex-proprietary tenancy was created for the first time by Act XVIII of 1873. The mortgage in suit was created in 1861. Thus in 1887, and 1874, the dates at which Deoki Singh lost his proprietary rights, Deoki Singh was not in possession of Plot No. 90, although admittedly it was his sir land. The learned Judge was of opinion that under the circumstances Deoki Singh could not acquire an ex-proprietary tenancy in the plot by virtue of the Act of 1873, an Act which was passed subsequently to the mortgage. This opinion of the learned District Judge is against the authorities of this Court, vide Karamat Khan v. Samiuddin (1886) 8 All. 409 and Sham Das v. Batul Bibi (1902) 34 All. 588.
7. Looking at the language of the law itself there should be no manner of doubt as to the correctness of the contention of Deoki Singh's heirs. Section 7 of the Rent Act (1873) runs as follows:
Every person who may hereafter lose or part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such loss or parting, etc.
8. For the accrual of the right of occupancy all that is necessary is that the land should be held as sir and that the proprietary rights should be lost after the passing of the Act of 1873. It is conceded that the proprietary rights of Deoki Sirigh were lost after 1873. The next question is whether the sir land was 'held' by Deoki Singh at the date of the loss of the proprietary rights. It is quite clear that Deoki Singh was not in physical possession of the land in question. But he was certainly in constructive possession through his mortgagee whose possession was on behalf of the mortgagor. The law does not require for the accrual of the right of an ex-proprietary tenant that the land to which the right would attach itself should be in the immediate possession of the proprietor, losing his interest. I am, therefore, of opinion that although the land was held by Deoki Singh's mortgagee, Deoki Singh held the land within the meaning of Section 7. It follows that Deoki Singh became an ex-proprietary tenant of the land in suit.
9. Having acquired the ex-proprietary tenancy it does not appear that Deoki Singh lost it at anytime. Indeed, after the possession of Nandu Bhaiya came to an end, on redemption on the part of the defendants' ancestors, the defendants' ancestors stepped into the shoes of Nandu Bhaiya and their possession was on behalf of the mortgagor Deoki Singh. There will, therefore, be no difficulty in the way of tiia plaintiffs' success.
10. A question of limitation was raised in (ho Court of first instance, but both the Courts have found that there was an acknowledgmet t by the defendants' ancestors which took the case out of the rule of limitation. That question has not been discussed before me, and I need express no opinion on that point. One argument was advanced by Dr. Agarwala and it is this: ho argued that by virtue of the compromise of 1887 and by virtue of the dakhlaima that was passed in favour of Janki Prasad's hairs, Janki Prasad's heirs obtained physical possession over Plot No. 90. This argument is not supported by any statement to that effect in the written statement and is vitiated by the admitted fact that the defendants' ancestors took the trouble of redeeming the mortgage executed in favour of Nandu Bhaiya which was a usufructuary one.
11. In the result the plaintiffs' claim for redemption must succeed.
12. It appears that since the mortgage, the mortgagee in possession planted trees on the land. The plaintiffs' contention is that on payment of the mortgage-money they are entitled not only to the land, but also to the trees. The Court of first instance, while decreeing the claim for redemption, decided' that so long as the trees stood, the defendants' possession over the trees would continue. The learned District Judge did not express any opinion on this point because in his opinion the whole suit for redemption failed. In this Court, in support of the plaintiffs' contention, two cases have been cited. One is the case of Zubsda Bibi v. Sheo Charan (1899) 22 All. 83, and the other is an unreported case, viz., Second Appeal No. 148 of 1923, Nageshar Rai v. Nand Lal Rai, decided by Daniels, J., on the 25th of June, 1924. In the former case there was a distinct finding, that separate possession and enjoyment of the grove without detriment to the principal property was not possible. The question is whether I should follow those cases. Both the cases are decision by a single Judge, and are, therefore, not binding on me.
13. The law on the subject is contained in Section 63 of the Transfer of Property Act. In both the cases cited the same section has been relied upon. There can be no doubt that when a mortgagee of a plot of land plants trees on the same, the trees are to be considered as an accession. The ordinary rule is that a mortgagor upon redemption will be entitled to any accession that takes place in the property mortgaged. There is an exception however. The language is this:
Where such accession has been acquired at the expense of the mortgagee and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it.
14. The mortgagor here is not willing to pay for the expense that was incurred in planting and rearing up the trees. The question, therefore, reduces itself to this, viz., whether the plaintiffs are entitled to the trees without any payment whatsoever. This question has to be answered by finding out whether the accession is capable of separate possession or enjoyment without detriment to the principal property. It has been contended on behalf of the appellants that the trees as such were incapable of separate possession or enjoyment without detriment to the land itself. There can be no doubt that if the trees are to be enjoyed as standing trees they cannot be enjoyed without detriment to the land. On the other hand there seems to be no reason why the trees as timber, cannot be separately possessed or enjoyed without detriment to the property. The trees can be cut down and removed and the mortgagee will be able to enjoy the timber by separate possession. It has not been contended seriously that the severance of the trees from the soil would be detrimental to the land, that the land would be incapable of being used again as sir land. All that has to be done is to remove the roots of the trees which can be easily done, and if necessary the mortgagee may be required to remove the roots when they remove the trees.
15. If we look to the provisions of the law as to lease we find that a lessee is permitted to remove at any time during the continuance of the lease all things which he has attached to the earth provided he leaves the property in the state in which he received it: Clause (h), Section 108 of the Transfer of Property Act. The mortgage in suit was of only a plot of land. Instead of raising crops the mortgagee found it more paying to have a number of trees on the land. The trees have added to the value of the land if they be allowed to stand on the same. There is no principle of law by which the plaintiff may be allowed to have the privilege of having a more valuable property on redemption that he gave to the mortgagees. Unless, therefore, the language of the law expressly compels the Court to hand over the trees to the mortgagor, there seems to be no reason, certainly no moral reason, why the mortgagee should lose the trees. In my opinion the language of Section 63 does not imply that separate possession or enjoyment must be on the spot and not out of it. For example, if on a piece of land mortgaged the mortgagee chooses to erect a building, in my opinion he would be entitled to remove the bricks, the timber and every article constituting the building from the land if the mortgagor seeks redemption.
16. Such being my view the suit for redemption succeeds; and setting aside the decrees of the Courts below I grant a decree for redemption on condition of payment of Rs. 100 within six months of this date. In the circumstances of the case the parties will pay their own costs. The formal decree under Order 34, Rule 7, Civil P.C., will be prepared. The defendants-mortgagees would be entitled to remove the trees planted on the land in suit before delivery of possession to the plaintiffs and within two months of the notice of the deposit of the mortgage-money in Court.