1. These are two appeals against, decrees of the lower Appellate Court confirming decrees of the Court of first instance dismissing the claims of the plaintiffs. The plaintiffs in both the suits were the same persons although the defendants in each suit were different. However, both suits acres out of precisely , similar facts and circumstances and, therefore, they were conveniently dealt with together by the lower Appellate Court. We also propose to dispose of both the appeals in this judgment. The facts relating to both cases can be shortly stated as follows: On January 21, 1918, the defendant in each of the two cases executed usufructuary, mortgages in favour of the plaintiffs' pre-decessorin-title, the mortgagor in Appeal No. 627 of 1933 being one Behari Lal and the mortgagor in Appeal No. 1517 of 1933; being one Ram Prasad. On the same date the respective mortgagors executed qabu-liats in favour of the plaintiffs' predecessor-in-title whereby they retained possession of the mortgaged properly en payment of a certain sum by way of rent or theka money. On the same date the respective mortgagors executed a third document whereby they charged their equity of redemption in the mortgaged properties to secure the due payment by them of the rent or theka money. The rent having fallen in arrear in both the cases, suits were brought in the Civil Courts by the present plaintiffs who are the successors in title to the original mortgagee to enforce the security bonds executed by the respective mortgagors. Both the lower Courts dismissed the plaintiffs' claims, hence the two appeals to this Court.
2. Before the two lower Courts a number of defences were taken, but in this Court a number of these pleas have been abandoned. In the first place the learned Subordinate Judge who heard these appeals came to the conclusion that the mortgage-deeds, qabuliats and agreements to secure the rent due under the qabuliats formed one transaction which amounted to a simple mortgage. That being so he held that there was no relationship of landlord and tenant existing and that in fact the suits could not be maintained. The learned Subordinate Judge appears to have relied upon a number of authorities upon this point but it is to be observed that he gives no reasons why he regarded these various transactions as substantially forming one transaction, Dig. that of a simple mortgage. However, it has now been decided by their Lordships of the Privy Council in Mian Faros Shah v. Sohbat Khan , that where documents of this kind are executed in the manner in which they were executed in this case, they do not form one transaction and that it is not open to the parties to give evidence which tends to vary or contradict the terms of the written documents. In our judgment the present cases are entirely covered by the decision of their Lordships of the Privy Council referred to and that being so we are bound to hold that the learned Subordinate Judge was wrong in dismissing the plaintiffs claim on this ground.
3. A further point was taken before the learned Subordinate Judge, viz., that the Civil Court had no jurisdiction to hear these suits. It was contended that in order, to enforce the charge it was first necessary to ascertain what rent was due and to obtain a decree for such rent. That being so, it: was argued that the Civil Court had no jurisdiction and that the matter was cognizable only by the Revenue Court, it is true that by reason of Section 216, Agra Tenancy Act, 1926, the provisions of the Act relating to the recovery of rent apply to thekadars and it cannot be argued that a thekadar could come to a Civil Court and claim a decree for arrears of rent. For such a decree he would be bound by the terms of the Agra Tenancy Act to sue in the Revenue Court. It is the respondents' contention that this claim which was brought in the Civil Court is in effect a claim for rent, but with that view we cannot agree. A perusal of the plaint and the prayer contained therein makes it clear that this was a claim for the enforcement of a charge and clearly such claims can only be brought in a Civil Court.
4. It is true that the amount secured was not a known and definite sum and> therefore, reference is made in the plaint to the ascertainment of this sum in order that the charge might be enforced. In the plaint a decree for arrears of rent is not asked for. All that is asked for is that the amount of the arrears of rent should be ascertained and that the charge created by the agreement should be enforced. The Court is not asked to pass a decree for rent. All that it is asked to do is to enforce a charge created by an agreement. The fact that before the Court can pass a decree enforcing that charge, the arrears, of rent have to be ascertained does not make the claim a claim for rent or arrears of rent. In our judgment this is a type of case which is clearly cognizable by the Civil Court, and that being so, the learned Subordinate Judge was wrong in dismissing the claim on the ground that he had no jurisdiction to hear and determine it. Both the Courts below in arriving at the conclusion that this case was not cognizable in the Civil Court relied upon a dictum in a judgment in a Bench case in Mahadeo Rai v. Baldeo Rai 19 A.L.J. 478 : 63 Ind. Cas. 504 : A.I.R. 1921 All. 301 : 43 A. 539. At p. 479 Page of 19 A.L.J.--[Ed.] Tudball. J. observed:
The lien upon the property could not be enforced in the Revenue Court, and not in the Civil Court until a decree for the arrears had been obtained in the Revenue Court which alone had jurisdiction to hear and determine the suit for the arrears.
5. From this dictum it Would appear that Tudball, J. was of opinion that before charges such as exist in the present cases could be enforced, suits would have to be brought in the Revenue Court for the arrears of rent. It is to be observed that in the case in question the point for determination in these appeals did not arise as the only point in issue was one of limitation. No argument appears to have been addressed to the Court upon the points raised in these appeals and in any event the dictum referred to is merely obiter. In that particular case a decree had actually been obtained in the Revenue Court and then steps had been taken to enforce a charge in the Civil Court. The learned Judges in that case appear to have thought that the obtaining of a decree in the Revenue Court was a condition precedent to a suit to enforce a charge, but there is nothing to show that the contrary view was ever put before them. We do not, in the circumstances, feel bound to follow the dictum to which we have referred. In any event if the case was not cognizable in the Civil Court, the lower Appellate Court having all the materials before it should have heard and determined it by reason of Section 269 (1), Agra Tenancy Act. We cannot understand the reasons given by the learned Subordinate Judge for not proceeding under that section. He said that there 'was no question of the suits having been brought in the wrong Court. If that were so we cannot understand why he held that he had no jurisdiction to deal with them.
6. He further held that the appeals in question were entertainable only by the District Judge and, therefore, he, as a Subordinate Judge, had no jurisdiction to entertain them. We must point out that the appeals were filed in the Court of the District Judge and transferred by the latter to the Subordinate Judge. In circumstances such as existed in these cases the Subordinate Judge had jurisdiction to hear the cases transferred to him: see Babu Nandan Prasad v. Changur 16 A. 363 : A.W.N. 1894, 113 (F.B.). In the result, therefore, we are of opinion that the lower Courts, had jurisdiction to hear and determine these suits and that the orders dismissing them cannot be sustained. In our judgment the cases should have been heard and determined on their merits and that being so, we allow these appeals, set aside both the decrees and direct that the cases be re-heard and determined by the trial Court on all points except that of jurisdiction which we have decided. As regards the question of costs, we think the plaintiff-appellants are entitled to the costs of these appeals from the contesting defendant. We note that the Sat Narain Bank, Limited, did not contest Appeal No. 627 of 1933 and is, therefore, not liable to pay costs. The costs of the hearings in the Court below will of course abide the result of these cases. The appellants in both cases are entitled to a refund of the court-fee in this Court. We have not dealt in this judgment with the point raised as to the effect of Government remissions. As we have remanded the cases for further hearing, we do not wish to fetter the lower Court in any way. We merely point out that our silence upon this point must not be construed to mean that we are in agreement with the views expressed by the lower Courts.