1. This is a plaintiff's appeal arising out of a suit for ejectment in the Revenue Court. The defendant pleaded that the relation of landlord and tenant did not exist between the parties. He in fact set up his rights as a mortgagee from the proprietor Ganesh, who is now dead, and one of whose sons is in Jail and the other absconding. He in support of his contention produced an unregistered deed dated the 22nd of April 1909.
2. The Court of first instance found that the relation of landlord and tenant did not exist between the parties. It also remarked that in this village the lambardar was not the sole person who made collections, but that all the co-sharers made collections in respect of their separate shares. The first Court, therefore, was further of opinion that the suit by the lambar dar alone for ejectment was not maintainable.
3. On appeal the lower Appellate Court has upheld the findings of the first Court and dismissed the suit. The judgment is not as clear as it might have been but I take it that the lower Appellate Court was opinion that the relation of landlord and tenant did not subsist between the parties.
4. It is true that the mortgage-deed in question, not being a registered document, is invalid as a mortgage-deed and cannot affeot the property purporting to have been transferred under it. At the same time, this was executed in 1909 and delivery of possession followed. When the plaintiff came to Court on the alligation that the defendant was a tenant, I think it was open to the defendant to produce this document in order to show the nature of his possession and to satisfy the Court that he was not holding the land as a tenant. This is the view which was accepted in the Full Bench case of the Madras High Court reported in Kurri Veerareddi v. Kurri Bapireddi 29 M. 336 : 1 M.L.T. 153 : 16 M.L.J. 395. (F.B.) and by the Bombay High Court in the case of Thakore Fatesingji v. Bomanji A. Dalai 27 B. 515 : 5 Bom. L.R. 274. It is also clear that if a suit had been brought in the Civil Court for the ejectment of the defendant as a trespasser he would have been allowed to show that he had been put in possession on payment of a certain mortgage-money and might have asked the Court to give him some relief in equity. Similarly, there may, be a case where a co-owner has transferred his share under an unregistered sale-deed to his other co-owners and put them in possession. Even though the other co-owners cannot set up this unregistered deed as passing title, I think it is open to them to show by means of that deed that since that date they have been holding possession adversely to the original owner and not as mere co-owners. In this view of the matter, I am of opinion that it was open to the defendant to show that his possession was not that of a tenant, and that, whatever else his possession may be, the relation of landlord and tenant does not exist between the parties. This I take to be the finding of both the Courts below. On that finding the suit for ejectment in the Eevenue Court was liable to be dismissed.
5. It is to be noted that the present plaintiff, though a lambardar, is in no sense the legal representative of Ganesh or his sons. A suit by him either for redemption of the supposed mortgage or for the ejectment of the defendant as a trespasser would not have been maintainable in the Civil Court. It is, therefore, not open to him to turn round and treat the defendant as a tenant, when on the facts found by the Courts below the defendant has not been holding this land as a tenant at all.
6. I am, therefore, unable to interfere with the decree passed by the lower Appellate Court and I dismiss this appeal with costs.