1. This is a second appeal by the defendant against the concurrent decrees of the two lower civil Courts, decreeing possession of the property in suit to the plaintiff-respondent. The plaintiff brought his suit for redemption of plot 585, area 62 acres in mauza Ranighat. The following facts have been proved. On 10th January 1916 one Kodai Rani made a usufructuary mortgage to the defendant-appellants of 35 acre of this plot and of another plot. On 28th May 1925 Kodai Rai made a perpetual lease of the plot in suit to the plaintiff. On 26th March 1927 Dudh Nath, the son of Kodai Rai, sold whatever rights remained to him in two pie zamindari share to which this plot appertained to the defendants. The first question that was argued was that by some rule of law not explained the purchase by the appellant of the rights of Kodai Rai in two pie zamindari share would prevent the plaintiff from suing for redemption.
2. It appears to me that it was perfectly legal for Kodai Rai to make a perpetual lease in favour of the plaintiff of this plot. The usufructuary mortgage provided that redemption might take place on 13th Jeth, Fasli 1321, i.e., in 1918. At that data or after that it was open to Kodai Rai to obtain possession of the mortgaged area by paying off the mortgage-money. Therefore, it was open to Kodai Rai to make a perpetual lease including that area and thereby he transferred to the lessee the right to redeem the mortgaged area and obtain possession from the appellant. Subsequently when the appellant purchased the rights of Kodai Rai in the two pie zamindari share the appellant did not purchase the whole equity of redemption of Kodai Rai, because Kodai Rai had already parted with the part of that equity of redemption which he had transferred to the plaintiff, the perpetual lessee. The appellant merely purchased the remaining rights of Kodai Rai and his son in the equity of redemption subject to the right of the perpetual lessee to redeem. In regard to ground 4 of appeal that the mortgage became extinguished by the purchase of the rights of Kodai Rai in the two pie share, this argument is unsound, because between the rights of the mortgagee and the rights purchased from Kodai Rai by the mortgagee there intervened the estate of the perpetual lessee, viz, the rights of redemption. No argument was addressed to me on ground of appeal No. 5. On ground of appeal No. 1 it was argued that the lower Courts were wrong in holding that the suit was cognizable by the civil Court.
3. It is true that under Section 99(1) a perpetual lessee could sue a landholder for possession or for preventing him from obtaining possession of his holding. The lower appellate Court is incorrect in referring to Section 202 of that Act which merely applies to the kadars, and has nothing to do with the present case. But the suit was brought for redemption of the whole area 62 acres, and it was only subsequently discovered that it was not the whole plot 585 which was mortgaged to the appellant, but only 35 acres out of that plot. I do not think that in such a case where a plaint as originally drafted would clearly lie in the civil Court and subsequently evidence showed that in regard to part of the property for which the suit is brought a suit might have laid in the revenue Court, it should be held that the civil Court has not jurisdiction to grant relief for possession. Further the suit is for possession of a single khasra 585. It appears to me that there is nothing in law which would require a person in the position of the plaintiff to file separate suits in the civil and revenue Courts for possession of the two parts of this undivided number, nor would it be for the public convenience to invent such a rule. The number being undivided and the suit involving redemption of a mortgage, it appears to me that the civil Court is the proper forum for a suit for possession in which redemption of part of the property is involved. I dismiss this appeal under Order 41, Rule 11.