1. This is a second appeal by certain defendants in a suit for ejectment. There were three parties to the litigation namely, the plaintiff Gokul Rai, Gaya Singh and others, described as the defendants of the first party, and Ram Racha Dube and others, described as defendants of the second party. It is these last who are the appellants now before this Court. The defendants of the first party mortgaged their zemindari rights in a certain 4-anna share in village Mahrauli to the plaintiff under a contract of mortgage by conditional sale. They subsequently mortgaged certain specified plots of sir land, alleged to appertain to the share in question, with possession to the defendants of the second party. The plaintiff sued on the mortgage and obtained ' a foreclosure decree under which he was put into possession on the 4th of July 1904. He has nevertheless been successfully prevented by the defendants between them from getting the benefit of his decree so far as the sir lands are concerned upto this present time. He seems to have availed himself from the first of the proper legal remedies open to him. He sued the defendants of the first party, who had become his ex-proprietary tenants in respect of these sir lands, for determination of rent, and finally accepted a compromise decree determining the rent with retrospective effect at a certain sum in the year 1905. The rent was not paid, and on September the 21st, 1906,; the plaintiff obtained a decree, for arrears of rent. This decree was not satisfied and the plaintiff proceeded to eject the defendants of the first party from their tenancy under the provisions of the Agra Tenancy Act. He obtained possession under that Act on February the 10th, 1907. He has nevertheless failed to obtain peaceable enjoyment of the rents and profits derivable from these sir lands and has been compelled to bring this suit in a Civil Court to turn out the two sets of defendants, who continue persistently to dispute his right to possession over these lands. The defence set up by the defendants of the first party was obviously Dot conducted in good faith. Their written statement is extremely involved and obscure, and it may be that they have just avoided committing themselves to any express statement for verifying which they could be prosecuted before a Criminal Court. They, however, did plead that they were still in possession of the land in suit, or at any rate of some part of the same, as tenants holding from the plaintiff, and on the strength of this, plea they claimed the benefit of Section 202 of the Agra Tenancy Act (Local Act II of 1901). The provisions of that section are mandatory, and I feel constrained to remark that Civil Courts should be on their guard against the artifice which has, obviously been employed in the present case by the defendants seeking to obtain the benefit of that section for purposes of mere vexation and delay. It is quite true that the learned Subordinate Judge could not prevent the defendants of the first party from pleading that they held these lands as tenants of the plaintiffs, but he could, by a proper exercise, of his powers have taken care that this plea was not entered in vague and general terms, but was put forward clearly and Specifically in answer to the plaintiffs' plea' that the tenant rights of these defendants had been terminated by their ejectment according, to law. It may be that if these defendants, had been properly questioned by the Court they would have shrunk from committing themselves to denial of this, and at any rate, they could have been properly dealt with when it was found that their, denial was a wilful falsehood. However, having been permitted in this unsatisfactory manner to claim the benefit of Section 202 of the Tenancy Act, the defendants first party duly filed a suit in the Revenue.... Court within the prescribed, period of three months.,, and then permitted it to be dismissed for default. Their conduct seems to have been a deliberate one, for it is clear that they made no attempt to obtain are hearing of the order of dismissal by satisfying the Court that they had been prevented from prosecuting the suit by any sufficient cause, What they did was to institute, after the period of three months, referred to in sectiori 202 aforesaid had expired, a fresh suit in the Revenue Court for the same relief. One of the pleas in the memorandum of appeal now before me is that the Civil Court was bound to wait for the result of this second suit. I am of opinion that there is no farce, whatever in this plea,, and that the Court of first instance acted very properly in not permitting the defendants of the first party to continue indefinitely the game of obstruction and delay which they were obviously playing. Therefore, it has been properly decided, as against these defendants of the first party, that their rights as ex-proprietary tenants have been terminated by ejectment and that if they are interfering at present with the plaintiffs' possession in respect of any-portion of the land in suit, they are doing so as trespassers without a shadow of title.
2. The position of the defendants of the second party requires to be separately considered. They were impleaded as persons interested in a portion of the mortgaged property by the plaintiff in his suit for foreclosure. They thus obtained the only thing to which they had any right in law, viz., an opportunity of redeeming the mortgage in favour of the plaintiffs; of this they failed to avail themselves. The contention on their behalf, however, is that the result of the foreclosure suit was merely to extinguish any interests they might have previously possessed in the proprietary rights over the plots of land mortgaged to them; but that their mortgagee rights enured in respect of the ex-proprietary tenancy created by Statute in favour of the defendants of the first party from the date of the foreclosure decree. For this proposition of law the authority quoted is the case of Sham Das v. Batul Bibi 24 A. 538 : A.W.N. (1902) 155. A consideration of this ruling shows that one important factor in the decisions arrived at by the learned Judges who decided that case was the view taken by this Court that there was nothing in the provisions of the old Rent Act of 1881 to prevent an occupancy tenant from transferring possession over his holding by way of usufructuary mortgage. It may be doubted, therefore, whether this case is any longer to be relied on since the alteration in the law affected by the passing of the Agra Tenancy Act of 1901. Even apart from this, the defendants-appellants have, in my opinion, no case. Supposing that they were entitled to possession as mortgagees over some of the plots composing the ex-proprietary holding from which the defendants of the first party were ejected in 1907, it seems clear to me that, even in this case, whatever rights they possessed were extinguished by the ejectment. There ceased to be, from the date of the ejectment, any ex-proprietary holding over which these appellants could exercise their alleged right of mortgage possession. They should have protected themselves by seeing that the rent c the holding was duly and punctually paid. The plea taken on their behalf is that their rights cannot be affected by the decree for arrears of rent against the defendants of the first, party or the subsequent ejectment proceedings, because they were not made parties to those proceedings. Now it is clear that on no possible view of the case did these appellants become tenants of any of the plots of land in suit on behalf of the plaintiffs; this was conceded in argument before me and, as a matter of fact, they never pleaded throughout the present suit that there existed any relationship of landlord and tenant as between them and the plaintiffs. The latter, there-fore, could only take proceedings for the determination of rent and for subsequent realization of the same, against the defendants of the first party, who had become his ex-proprietary tenants by operation of law. The possession of the defendants of the second party was certainly no, better in law than that of a sub-tenant of the holding; that is to say, they may have had, as against the defendants of the first party, a right to possession over some of the plots of land in suit, so long as the tenancy of the defendants of the first party continued. This right was extinguished when the plaintiff obtained possession, after ejecting the defendants of the first party for non-payment of rent.
3. There remains, however, one other point to. be considered on behalf of these appellants. They have pleaded in this, as in the lower Appellate Court, that a certain consent decree dated September 10th, 1908, arrived at in the course of a certain other litigation, operates as res judidata in the present case with regard to the right of these appellants to remain in mortgage possession over the plots of land in suit claimed by them. I find on examining the record of the previous litigation that Behary Rai, son of Gokul Rai, who is the plaintiff in the present case, had acquired mortgagee rights in( respect of another fractional share in the same mahal. In seeking to enforce these rights Behary Rai became involved in litigation, in, the course of which a question was raised as to his right of possession over the sir lands appertaining to the mahal as a whole. To that litigation the present defendants-appellants were parties. It resulted in a compromise decree affirming the right of the present appellants to possession over certain specified plots of land. Now the plea of res judkata, in the form in which it is put forward, is clearly not sustainable. The evidence on the record would not justify a finding that Gokul Rai, the plaintiff in the present suit, is claiming under Behary Rai, the plaintiff in the former suit above referred to. It is, moreover, quite clear that Gokul Rai is not in the present case litigating under the same title as was Behary Rai in the former suit. Whatever rights Gokul Rai is seeking to enforce in the present case are derived from a different mortgage over a different fractional share in the mahal to that on the strength of which Behary Rai was litigating in the former suit. I have, however, considered this plea from a slightly different point of view from which it was pressed upon me in argument. The suggestion is that, apart from any question of res judicata, the compromise on which the consent decree of September 10th, 1908, was based has the effect of an agreement, binding upon Gokul Rai, to leave these defendants in possession of the plots of land in suit until their mortgage-debt is repaid. I thought it right to give my best consideration to this plea, because it involves the only substantial defence on the merits which these defendants-appellants have been able to put forward. It seems to me, however, that the effect of the compromise and the consent decree of 1908 was not what the appellants contend. The present claim relates to certain plots of sir land all of which are specified as being fractional shares of larger plots and all of which have been expressly admitted on the pleadings in this suit to appertain to that fractional share in the mahal which was mortgaged by the defendants of the first party to the press plaintiff. The question raised in the suit decided by the consent decree of 1908 was as to the sir lands which should be presumed to appertain to another fractional share in the same mahal, and, in my opinion, the agreement come to between the parties in that litigation of 1908 did not refer, and was not intended to refer, to sir lands not appertaining to the share in respect of which Behary Rai was enforcing his rights in that former suit. There is nothing whatever on the present record to show that Behary Rai either had, or claimed to have, any right to bind his father by an agreement covering the sir' lands appertaining to a different share in the mahal, a share in respect of which Gokul Rai had become full proprietor under a foreclosure decree obtained five years previously. For this reason I hold that there is no force in any of the contentions put forward in support of this appeal. I hereby dimiss it with costs including fees on the higher scale.