1. This appeal arisesfout of a suit for arrears of rent brought in the Revenue Court by the plaintiff Ata Husain against Ramman Lal, defendant, and others. The rent claimed was for the years 1324, 1325 and 1326 Fasli. The land in respect of which the rent was claimed formed the occupancy holding of one Musammat Katwari. The plaintiff alleges himself to be the mortgagee of the holding from Mt. Katwari, and he said in his plaint that the defendant was his sub-tenant and was, therefore, liable to pay him rent The defendant Ramman Lal denied that the relationship of landlord and tenant existed between the plaintiff and him. He asserted that he had taken the land from Mt. Katwari and that he bad paid the rent claimed to the latter. There can be no doubt that Mt. Katwari was incompetent to mortgage her occupancy holding and that the alleged mortgage in favour of the plaintiff is void in law. Therefore, the plaintiff has no right to the land in suit.
2. The lower Appellate Court held this to be one of the grounds on which the plaintiff's suit was bound to fail. That Court further found that the defendant had paid the rent sued for by the plaintiff to Mt. Katwari and that the defendant was not the plaintiff's tenant. That Court dismissed the suit.
3. The plaintiff appealed to this Court and his appeal was dismissed by a learned Judge of this Court.
4. Two contentions have been raised before us. The first is that, even if the plaintiff has no title, the defendant took the land from him and, therefore, could not deny his title as defendant's landlord, and the second contention is that the plaintiff has obtained a decree against the defendant for his ejectment from this holding, and that the effect of that decree is that the defendant must be deemed to be the plaintiff's tenant.
5. As we have already said, the mortgage alleged to have been made in the plaintiff's favour being in contravention of the provisions of the Agra Tenancy Act, is a void mortgage and, therefore, the plaintiff has no title to the land in respect of which rent is claimed. Mt. Katwari, the mortgagor, was competent to resume possession of the land, although she could not bring a suit in Court for recovery of possession unless she made good to the plaintiff the money which she had received from him. At the same time, if Katwari dispossessed him the plaintiff could not come into Court to enforce his right as mortgagee and to eject her from the property. The fact, as found by the lower Appellate Court, of Mt. Katwari having realized the rent from the defendant is equivalent to Mt. Katwari having iresumed possession of the land, and if she resumed possession of the land the plaintiff has no remedy as against her so far as the land is concerned. If he had no remedy against Katwari, he could not have any remedy against the defendant who has paid the rent to her, and on this ground the plaintiff's claim was bound to fail.
6. Again, the passing of a decree for the ejectment of the defendant cannot affect the rights of Musammat Katwari, and if she realised the rent from the defendant and thus took back possession of the holding which she had mortgaged to the plaintiff, the ejectment proceedings against the defendant cannot prejudice her rights and by reason of payment of rent to her the defendant has been relieved of liability to pay rent to the plaintiff.
7. From any point of view, therefore, the plaintiff who has taken an illegal mortgage cannot receive any remedy at the hands of the Court. If a decree were passed against a tenant under such circumstances, it would enable an occupancy tenant whom the Legislature intended to protect, to circumvent the law and allow a mortgagee from him take possession of his holding. Further mere, in the present case there was an allegation by the defendant that he has not taken the land from the plaintiff. That allegation was not repudiated by the plaintiff, nor was any issue raised in the Court of first instance on that point. Therefore, we cannot assume that the land had been let to the defendant by the plaintiff. If the defendant had already been cultivating the land before the mortgage to the plaintiff was made, the plaintiff who has really no title under his mortgage, cannot seek to realize the rent from him if he refuses to pay it. The appeal is, therefore, in our opinion, untenable, and we dismiss it with costs.