1. This and the connected Second Appeal No. 1071 of 1927 arises out of the same suit brought by the plaintiffs-appellants for a declaration of their exclusive right to recover rent of 1553 acres of land detailed in list (6) at foot of the plaint as land appertaining to the share of 8 annas held by them in mortgagee-possession. The Court of first instance decreed the suit in its entirety. The lower Appellate Court has dismissed it. The appeals were preferred in the lower Appellate Court one by all the five defendants to the action and the other only by Sheobadan Singh, defendant No. 2 and Baijnath Singh, defendant No. 3, Both the appeals having been allowed by the lower Appellate Court, the plaintiff had to file two appeals. The connected Appeal No. 1271 is from the decree of the lower Appellate Court passed in the appeal preferred by Sheobadan Singh and Baijnath Singh. It relates only to five plots to which the decree in Suit No. 230 of 1921, passed by the Munsif of Kirakat relates. The plaintiffs appellants also seek a declaration that the aforesaid decree does not affect their interest in those plots. It is convenient to deal with the plaintiffs' suit as a whole passing separate orders on the connected Appeal No. 1271 so far as the five plots in dispute in that appeal are concerned.
2. The pedigree given at page 20 of the paper book in the judgment of the Court of first instance will explain the position of the parties. The village Parhwa, District Jaunpur is olvidea into two patties; (1) Patti Balbhaddar Singh of 10 annas 8 pies and (2) Patti Muneshar Singh of 5 annas 4 pies. This litigation is not concerned with the latter patti. In the former patti the share of Balbhaddar Singh was 8 annas. The remaining 2 annas 8 pies belonged to Baijnath Singh and Sheonath Singh defendants Nos. 3 and 4, to the extent of 1 anna 4 pies, to Sheobadan Singh, defendant No. 2, to the extent of 1 anna and to Gayadin Singh, defendant No. 5 to the extent of 4 pies. The specific plots amounting in area to 1555 acres mentioned in list (k) already referred to were sir plots in Patti Balbhaddar Singh. The principal question in dispute in the appeal is whether they should be regarded as the sir exclusively of Balbhaddar Singh the co-sharer of 8 annas, or as appertaining to the entire patti of 10 annas 8 pies so that the other co-sharers of Balbhaddar Singh had a proportionate share in them as their sir. The shares of defendants Nos. 2 to 5 are held by defendant No. 1 as mortgagee with possession under several mortgage deeds. Balbhaddar Singh's 8 annas share was mortgaged with possession to one Kishen Dat by a deed dated 18th November, 1902: Ex. 4. It purports to transfer not only the share but the entire sir now in dispute. The mortgagee's possession, over the 'sir' plots was the subject of a contest in the Revenue Court at the instance of Sheobadan Singh defendant No. 2, and father of Gayadin Singh defendant No. 5. The entire sir land was recorded in the name of Balbhaddar Singh at that time and the Revenue Court treated it as his sir exclusively directing the same to be recorded as the ex-proprietary tenancy of Balbhaddar accruing on the execution of the usufructuary mortgage-deed dated 18th November, 1902. Accordingly ex-proprietary rent of Rs. 65-8-3 was fixed by an order of the Revenue Court dated 31st May, 1905: Ex. 3.
3. Balbhaddar Singh having died in the meantime his son Jagat Bahadur Singh executed a deed of usufructuary mortgage on 21st June, 1919, in favour of Lal Bahadur Singh plaintiff No. 2 in respect of the 8 annas share belonging to him. The deed expressly exempts the 'sir' lands from the operation of the mortgage. A few months later on 22nd September, 1912, Jagat Bahadur Singh sold his rights in the 8 annas share to Kishan Dat the mortgagee under the first deed executed by him on 18th November, 1902, relinquishing the ex-proprietary rights in his favour.
4. Sheobadan Singh, defendant No. 2, instituted a suit for pre emption of the sale in favour of Kishen Dat last mentioned and obtained a decree on 22nd April, 1921. Subsequently he transferred the share pre empted by him to Ajudhia Singh defendant No. 1 by a deed of usufructuary mortgage dated 6th February, 1922.
5. Lal Bahadur Singh plaintiff No. 2, obtained a decree for redemption in Suit No. 184 of 1922 against Kishan Dut, to whom he paid off the mortgage money due to him under the prior mortgage of 18th November, 1912. It should be mentioned that plaintiff No. 2 sued for redemption as puisne mortgagee under his deed dated 21st June, 1919, and obtained delivery of possession of the property redeemed by him on 4th July, 1923. The lands now in dispute were specifically sued for and all the defendants to the present suit were parties to that suit He sold half of his rights to Raghunandan Prasad plaintiff No. 2.
6. The two plaintiffs brought a suit for arrears of rent against certain tenants who cultivated some of the plots now in dispute. On the defendants intervening in those suits, the Collector eventually dismissed them on 26th March, 1925, he lding that the sir lands in question did not exclusively belong to the plaintiffs or to their predecessor-in-title Balbhaddar Singh and that they could not sue for recovery of arrears of rent without joining the other co sharers, viz., defendants Nos. 2 to 5, and their mortgagee defendant No. 1. The plaintiffs seek a declaration to the effect that they are exclusively entitled to collect rent in respect of the sir plots in dispute challenging the correctness of the Collector's order aforesaid.
7. Baijnath Singh and Sheo Nath Singh defendants Nos. 3 and 4 had obtained a decree against Sheobadan Singh in respect of the five of the plots now in dispute recognizing their exclusive title to those plots as their sir land. The plaintiffs also seek a declaration of their rights to these plots which it should be noted are included in the property to which the general relief claimed by them relates, Second Appeal No. 1271 of 1927 specially deals with these five plots.
8. Both the Courts held that the 1553 acres of sir land now in dispute originally appertained to the entire 10 annas 8 pies: share that only Balbhaddar's name was recorded because he was the lambardar and represented the entire family but that since the time of the usufructuary mortgage dated 18th November, 1902, the same was treated as sir of Balbhaddar alone and that he was treated as ex-proprietary tenant from whom his mortgagee Kishen Dat was in receipt of rent for a period of more than 12 years. Accordingly they held that the defendants could not claim any share in that sir in view of the facts that have happened. The Court of first instance decreed the plaintiffs' claim on the finding that they obtained all the rights of Kishan Dat who was entitled to recovery of rent payable in respect of the sir land by the ex-proprietary tenants or the actual cultivators by virtue of redemption by them of the mortgage in favour of Kishen Dat. The lower Appellate Court's view may better be expressed in its own words. It says:
A subsequent mortgagee when he sues for the redemption of the prior mortgage, stands in the position of an agent of the original mortgagor. He cannot by redeeming a prior mortgage acquire more rights in the property than are given to him by the terms of his own mortgage-deeds. The balance must revert to the original mortgagor. Whatever money the subsequent mortgagee paid to the prior mortgagee came really from the pocket of the original mortgagor, and the payment by him must be considered to be a payment by and on behalf of the latter.
9. The substance of the lower Appellate Court's finding is that the mortgage-deed, dated 21st June, 1919, in favour of the plaintiffs, clearly exempts the sir land and is limited to the 8 annas share while Kishen Dat's mortgage of 18th November, 1902, redeemed by the plaintiffs, related to the sir as well. It is of opinion that redemption by the plaintiff will entitle them to possession of what was mortgaged to them under their own deed and anything over and above that share which could be obtained from the prior mortgagee by redemption cannot be retained by the subsequent mortgagee, but the latter must hand it over to the mortgagor or his representative-in-interest. We entirely disagree with the proposition of law which the lower Appellate Court has given effect to. It is in direct conflict with the provisions of Section 74, Transfer of Property Act, which expressly provides that 'any second or other subsequent mortgagee may, at any time after the amount due on the next prior mortgage has become payable, tender such amount to the next prior mortgagee and such mortgagee is bound to accept such tender and to give receipt for such amount and...the subsequent mortgagee shall, on obtaining such receipt, acquire, in respect of the property, all the rights and powers of the mortgagee, as such to whom he has made such tender.'
10. Under Section 91 of the same Act any person who is interested in the mortgaged property or in the equity of redemption, he wever small his interest may be, is entitled to redeem a prior mortgage and retain possession of the mortgaged property in subrogation to the rights of the mortgagee redeemed by him till a proportionate amount is paid to him by those interested in the property other than that to which he is entitled under his own mortgage-deed. The theory of agency which underlies the view of the lower Appellate Court quoted above cannot be supported by anything on this record. The plaintiffs did not profess to act on behalf of their mortgagors but on their own behalf as subsequent mortgagees. To guard against possible misunderstanding we desire to make it clear that, as we read the mortgage-deed in favour of the plaintiffs the deed dated 21st November, 1919, they are entitled to recover thereunder the rent payable by the mortgagors for the exproprietary he lding then in their possession. The deed clearly authorizes them to take possession of everything appertaining to the share mortgaged, except the sir plots, and to appropriate all profits of the share left after payment, of the Government revenue. The rent payable by the ex-proprietary tenant, the mortgagee, is unquestionably part of the profits. Strictly speaking, there was no sir then in existence.
11. The lands which had been formerly of became ex-proprietary tenure of the mortgagor. Ex-proprietary lands are sometimes loosely called as sir because of their character as such previous to the transfer which gives rise to the ex-proprietary tenure. What is, therefore, exempted by the mortgage-deed is the ex-proprietary tenancy. The lands held by the mortgagor as ex-proprietary tenant are not to be taken possession of by the mortgagee but the deed does not entitle the mortgagor to he ld the land rent free. In other words, the mortgage operates on the entire proprietary right in the 8 annas share, including the right to receive rent from the ex-proprietary tenant the mortgagor, whose possession, he wever, cannot be interfered with. Reservation in respect of the so-called sir land was made in the deed lest the mortgagee should attempt to take actual possession of it.
12. It has been mentioned that Jagat Bahadur subsequently sold his share and relinquished his ex-proprietary rights in favour of the vendee. If the relinquishment he lds good absolutely and in favour of the mortgagee, a point which we do not decide, the plaintiffs are entitled to recover rent from the cultivators liable to pay it; but if the ex-proprietary rights subsist, the plaintiffs are entitled to recover the rent payable by the ex-proprietary tenant.
13. Having regard to the correct legal position and the rights of the plaintiffs under the mortgage-deed, we are clearly of opinion that the view taken by the lower Appellate Court is unsustainable and that of the Court of first instance must prevail. The result is that the plaintiffs-appellants are entitled to step into the shoes of Kishen Dat mortgagee. The latter was unquestionably entitled to receive rent in respect of the sir land which had been declared to be the ex-proprietary tenancy of Balbhaddar Singh and who was made liable to pay rent in respect of it by the Revenue Court. We must accept the finding of both the Courts below that for more than 12 years it was treated as the exclusive sir of Balbhaddar Singh to the exclusion of defendants Nos. 2 to 5, whose attempt to obtain recognition of their rights in the Revenue Court failed as far back as lii05. They could not have successfully resisted Kishen Dat's claim to rent in respect of these lands. The plaintiffs-appellants must be deemed to be entitled to what could have been recovered by Kishen Dat, to whose right they have been subrogated. The above remarks may or may not apply to the five plots to which the connected S.A. No. 1271 of 1927 relates. The lower Appellate Court has not arrived at any certain and definite finding with regard to the question whether defendants Nos. 2 to 5 were in possession of these plots to the exclusion of Balbhaddar Singh and his mortgagee, Kishen Dat. The lower Appellate Court says:
As to the exclusive possession of the appellants Shsonath Singh and Baijnath Singh, over a number of plots, it is not easy to arrive at a decision. They have mortgaged these plots on several occasions' and in 1921 obtained a declaration from the Civil Court in respect of them, and Sheobadan Singh had admitted their claim in that suit. There is also the statement of the 'patwari' who happens to be the father of respondent No. 2 in certain previous proceedings to the effect that they were in possession. The 'patwari' he wever, has tried to explain that he made those statements as a partisan of Baijnath and Sheonath and that the statements are not true. It is difficult to accept this explanation and it is not easy to he ld that Baijnath Singh and Sheonath Singh have really not been in exclusive possession of plots which they claim. But in view of my finding that the plaintiffs are not entitled to the exclusive collection of rents from the tenants of the property in dispute, it would be unnecessary to decide this question.
14. Though the lower Appellate Court is inclined to find in favour of defendants Nos. 2 to 5 as regards the five plots in question in Appeal No. 1271 of 1927, we cannot treat the observation quoted by us above as a finding of fact which may be conclusive in second appeal. It is a halting expression of opinion by a Court which refrains from making it a part of its decision. Before disposing of Appeal No. 1271, it is necessary that a definite issue should be remitted to the lower Appellate Court for a finding as to whether defendants Nos. 2 to 5 were at any time in exclusive possession of the five plots to which it relates and, if so, he w long and during what time.
15. Another point on which the lower Appellate Court based its decree has reference to the proviso to Section 42, Specific Relief Act. It held that the plaintiffs' failure to obtain a decree for arrears of rent makes it necessary for them to sue for possession and a mere declaratory relief is barred by the proviso to Section 42, Specific Relief Act. We are unable to endorse that view. All that the Collector held by his order, dated 26th March, 1925, is that the plaintiffs are not entitled to recover rent from the tenants liable to pay them, as other co-sharers had not been joined as plaintiffs. It is true the Collector held incidentally, at any rate, that the plaintiffs were not exclusively, entitled to possession of the sir land now in dispute. If the defendants, who were held to be co-sharers with the plaintiffs were to bring a suit for recovery of rent from those tenants, it would meet the same fate. The plaintiffs cannot claim any consequential relief as against the defendants, who can, in no sense, be considered to have ousted the plaintiffs. It is conceded on all hands that the actual cultivators are liable to pay rent. The question is whether they are so liable to the plaintiffs alone or jointly to the plaintiffs and the defendants. A declaratory relief, under these circumstances, is a proper one and may be claimed by them without infringing the provisions of Section 42, Specific Relief Act. Accordingly we he ld that the plaintiffs' suit for the declaration claimed by them is maintainable.
16. Another ground on which the lower Appellate Court's decision was adverse to the plaintiffs was one of jurisdiction. It found, on a question raised before the Court of first instance by the defendants, that the value of the properties in dispute in the suit exceeded Rs. 2,000. It was accordingly held by the lower Appellate Court that the trial Court, the Munsif, had no jurisdiction to entertain the suit. It found on evidence that the value was well over Rs. 2,000. (It should be mentioned that the Court of first instance found the value of the property in dispute to be no more than Rs. 1,100, which was within the pecuniary limits of its jurisdiction.) The lower Appellate Court held that 'the appeal ought, therefore, to be allowed for this reason alone.' It has apparently overlooked the provisions of Section 11(1)(6), Suits Valuation Act. Over-valuation alone is not sufficient for the suit being dismissed by an Appellate Court, unless it is satisfied, for reasons to be recorded by it in writing, that the over-valuation has prejudicially affected the disposal of the suit on its merits. It is only on this finding that it is justified in dismissing the suit, or, more correctly speaking, in directing the plaint to be returned for presentation to the proper Court. If any authority were needed to support the proposition clearly borne out by the section itself, we may refer to Dalip Singh v. Kundan Singh 22 Ind. Cas. 614 : 36 A. 58 : 12 A.L.J. 21. There is nothing to suggest that the defendants have been prejudiced by the trial of the suit in the Court of the Munsif whose judgment is thorough and well considered.
17. In the view of the case that we have taken Second Appeal No. 1270 of 1927 is allowed subject to the result of Second Appeal No. 1271 of 1927 as regards the five plots to which it relates. The plaintiffs suit is decreed; it is declared that they are entitled to recover from the tenants liable to pay rent in respect of the land in dispute other than the five plots aforesaid. The defendants-respondents must pay the costs of this appeal incurred by the plaintiffs here and in the lower Appellate Court, including in this Court fees on the higher scale. As regards the costs of the original suit, the defendants must pay 9/10ths of the costs incurred by the plaintiffs in the Court of first instance, the remaining 1/10th being assumed by us to be costs apportionable towards the five plots to Which Second Appeal No. 1271 relates and as to which orders shall be passed in that appeal.