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Lala Kalyan Mal Vs. Samondu and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in25Ind.Cas.272
AppellantLala Kalyan Mal
RespondentSamondu and ors.
Excerpt:
agra, tenancy act (ii of 1901), section 58, applicability of - mortgage of sir land--subsequent mortgage of--zemindari rights, effect of, on prior mortgage. - - they are mortgagees of proprietary rights in the sir and until the mortgage is satisfied, they are entitled to retain possession of the land as such......about the last two. the dispute related only to plot no. 3181. it was the sir of the then zemindar abdul rahman. in 1892 abdul rahman mortgaged it with possession to a certain mortgagee who is now represented by the contesting defendants in this case. later on in 1897 he mortgaged his entire zemindari share to the plaintiff who, having obtained a decree thereon, purchased the share in execution thereof. they took proceedings for the ejectment of abdul rahman and obtained orders for the ejectment of abdul rahman without impleading the defendants as a party. the mortgagees were thus no parties to these proceedings. the plaintiff now seeks to eject the mortgagees as tenants of some kind under section 58 of the tenancy act. both the courts below have found that the defendants are not tenants.....
Judgment:

Sunder Lal, J.

1. This-is a suit for ejectment under Section 58 of the Tenancy Act. The plaintiff sought for the ejectment of the defendant from three plots of land numbered 3181, 2841 and 3214. There was no contest about the last two. The dispute related only to plot No. 3181. It was the sir of the then zemindar Abdul Rahman. In 1892 Abdul Rahman mortgaged it with possession to a certain mortgagee who is now represented by the contesting defendants in this case. Later on in 1897 he mortgaged his entire zemindari share to the plaintiff who, having obtained a decree thereon, purchased the share in execution thereof. They took proceedings for the ejectment of Abdul Rahman and obtained orders for the ejectment of Abdul Rahman without impleading the defendants as a party. The mortgagees were thus no parties to these proceedings. The plaintiff now seeks to eject the mortgagees as tenants of some kind under Section 58 of the Tenancy Act. Both the Courts below have found that the defendants are not tenants but mortgagees. They are mortgagees of proprietary rights in the sir and until the mortgage is satisfied, they are entitled to retain possession of the land as such. The subsequent mortgage of the zemindari rights in favour of the plaintiff in 1897 did not entitle him to enter into possession of the land mortgaged in 1892 to the defendants without redeeming that mortgage. These persons, therefore, being prior mortgagees in possession, Section 58 has no application. The Courts below have rightly dismissed the suit and I dismiss the appeal with costs.


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