1. This appeal raised somewhat important questions of law. The plaintiffs are the Respondents Nos. 1-4. The remaining respondents were more or less fro forma defendants in the suit, out of which this appeal has arisen. The principal defendants are the appellants. Plaintiff sued for redemption of a mortgage made in 1889, which was supplemented by a mortgage of 24th July 1895. The total mortgage-money for the two mortgages is a sum of Rs. 100. The original mortgagors were two persons Sahai and Jokhu. Sahai's line is extinct. The plaintiffs are the son and grandson of Jokhu. The mortgage was made in favour of one Shiv Kumar, whose son and grandsons are the defendants Nos. 1 to 3.
2. Various defences were raised. It has been found by the Court below that the plaintiffs are entitled to redeem, but the appellants are entitled to cut away the trees that they have planted after the, mortgage. The defendants contended that they being the zamindars, the tenancy which was mortgaged has lapsed to them and that no right of redemption is left. For the respondents it is contended that the trees should be handed over with the land. Taking the respondent's case first, it seems clear that the mortgagees were entitled to make any use they liked of the land they bad in their possession. If they grew any crop they could cut it away before handing over the land. Similarly, if they planted any trees, they would be entitled to remove the trees before handing over the land to the plaintiffs. The cross-objection, therefore, has no force.
3. Coming to the defendants appeal the facts seem to be these. Jokhu and Sahai were the original mortgagors, and Sahai's line is extinct. It appears that in 1915, Jokhu's sons, Raghunandan and Rama, took forcible possession of the lands from the mortgagee. The mortgagee, Shiv Kumar, brought a suit for possession. The defendants, Raghunandan and Rama, being sons of Jokhu, thought it best to raise a plea of want of legal necessity for the mortgages. The case was heard by a learned Munsif and he framed the following issue among others:
Is the mortgage, dated 1889 genuine? 'What was the necessity for which it was made?
4. In deciding this issue, he came to the conclusion that Sahai was the sole tenant of the holding mortgaged and, therefore, the sons of Jokhu could not impeach the mortgage made by Sahai. As to Jokhu's mortgage the learned Munsif remarked that the mortgage had been made by two persons and it is not likely that it would be made for any immoral purposes or as a reckless transaction. It will be noticed that there is no issue as to whether Jokhu or Sahai was the sole tenant of the land. No such issue arose on the pleadings. It does not appear from the judgment that Shiv Kumar in any way had denied in the suit the right of Jokhu to the tenancy. The issue quoted in any case does not indicate that the parties knew that they had to adduce any evidence as to whether Sahai was the sole tenant or Sahai and Jokhu were both tenants of the land. Under the circumstances the finding of the learned Munsif does not operate as res judicata. The learned Subordinate Judge was wrong on this point. Such being the case, it follows that we must take it that Sahai and Jokhu wore both tenants of the land. Further, it is to be noted that the mortgage was taken from both and it does not lie in the mouth of the mortgagee or his descendants to dispute the title of the mortgagors at the date when mortgage was made.
5. The next point urged is that Sahai having died, his tenancy lapsed to the zamindar, for it appears that the mortgagee was also the landholder of the land mortgaged to him. It is urged that, on the death of Sahai, his brother's son Jokhu, who died after him, could not succeed to the tenancy as he was not sharing in the;, cultivation of the holding at the time of Sahai's death. It has been found that Jokhu and Sahai died before the present I Tenancy Act came into force. When Sahai died the land constituting the holding was held by the mortgagee. It is, I therefore, argued that at the date of the I death of Sahai Jokhu cannot be said to t have been sharing in the cultivation of the holding. In my opinion this contention f is not correct. It is true that even Sahai himself was not cultivating the tenancy at the time he died. But the possession of the mortgagee was the possession of both Sahai and Jokhu. It must, therefore, be taken that at the time of Sahai's death Jokhu was sharing in the cultivation of the holding with the deceased. In this view, there would be no difficulty in the way of Jokhu's succeeding to the interest of Sahai.
5. In my opinion there is no substance in this appeal, and it must fail.
6. The appeal and the cross-objection are both dismissed with costs which will include counsel's fees in this Court on the higher scale.