1. The appellant was the owner of a 3-pies share in a village and, as such, was in possession of several plots of sir or khudkasht. Long before the passing of the Agra Tenancy Act, the appellant gave the respondent (we usufructuary mortgages of the sir and khudkasht lands and placed him in possession. After that, the appellant gave the respondent a simple mortgage of the whole share. The respondent sued upon the simple mortgage and obtained a decree in execution of which he purchased the share himself. At the auction, the usufructuary mortgages were proclaimed as encumbrances upon the property. Shortly after the sale, the appellant sued the respondent for possession of the sir and khudhasht lands under Section 79 of (he Tenancy Act. The first Court threw the case out as barred by limitation because the respondent had been in undistributed possession of the plots as mortgagee for many years. On appeal, the Commissioner held that the suit was not barred by limitation and he gave the appellant a decree for possession of the land holding apparently that the appellant as ex-proprietary tenant was entitled to possession as against his mortgagee. In another proceeding, the rent payable by appellant as ex-proprietary tenant was determined, The respondent then brought this suit. It was resisted on the ground that the Civil Court had no jurisdiction to entertain it. The Munsif overruled this defence and decreed the claim, On appeal, the Additional Judge set aside the decree for possession and gave the respondent a money-decree. In this Court appellant contends that the suit should be dismissed altogether, and the respondent who has filed cross-objections contends that the decree of the first Court was right.
2. The respondent as usufructuary mortgagee is not entitled to a money-decree. The question is whether he is entitled to a decree for possession. The appellant relies upon the decision in the case of Maharaja of Vizianagram v. Chhango Kurmi 7 A.L.J. 555 : 6 Ind. Cas. 834, but it appears to me that that case has no bearing whatever upon the present case. There a fixed rate tenant had mortgaged his land to the defendant's ancestor. On the death of the tenant, the zemindar brought a suit in a Revenue Court against the defendant which is described in the judgment as a suit under Section 95 of the Agra Tenancy Act. The Revenue Court decided that the defendant was a fixed-rate tenant and was not liable to be ejected. The zemindar then brought a suit in a Civil Court for redemption of the mortgage alleging that the defendant was mortgagee of the land. It was held that it was not open to the Civil Court to hold that the defendant was in possession as a mortgagee. There, it will be observed, the Revenue Court, at the instance of the plaintiff, who at the time admitted that the defendant was his tenant, had inquired into the nature of the defendant's tenancy and had decided that the defendant was a fixed-rate tenant. The question was one reserved exclusively for the Revenue Courts.
3. Here the question decided by the Revenue Court was, whether a person lawfully in possession of land as mortgagee must give up possession to his mortgagor when the latter becomes entitled to ex-proprietary rights in the land, i.e., becomes ex-proprietary tenant of the land. That is not a question reserved exclusively fur the Revenue Courts; therefore, Section 167 of the Agra Tenancy Act does not apply. It was contended that all questions arising between a landlord and his tenant relating to the land are reserved exclusively for the Revenue Courts. Section 167 does not so provide, nor, so far as I am aware, has such a rule of law been laid down in any case.
4. In my opinion the Civil Court has jurisdiction to try this skit.
5. On the merits, there is no doubt that the respondent is entitled to possession of the land. The mortgage when made was lawful and did not become unlawful by reason of the passing of the Agra Tenancy Act. The appellant cannot be permitted to hold possession as against his own' mortgagee.
6. For the above reasons, I dismiss the appeal with costs. I allow the respondent's objection and restore the decree of the first Court with costs throughout.