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Tirbeni Sahu Vs. Lachmi Pande and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All346; 75Ind.Cas.666
AppellantTirbeni Sahu
RespondentLachmi Pande and anr.
Cases ReferredHanuman Din v. Ram Bisal
Excerpt:
.....that a suit like this by a dispossessed mortgagee did not lie against his mortgagor. he is the mortgagor as well as the lambardar; there is no plea that the revenue court was not competent to decide the present suit, but that a suit like the present one did not lie at all either in the revenue court or in the civil court......from the tenants. the mortgage has not yet been admittedly redeemed. the plaintiffs brought the present suit under section 164 of the tenancy act as a suit for recovery of profits. one of the pleas raised in defence was, that such a suit did. not lie. the learned assistant collector fixed issue no. 3 on this point and came to the conclusion that the plaintiffs being co-sharers, such a suit was maintainable. this decree was confirmed on appeal after certain findings had been obtained on issues remitted by the lower appellate court. the defendant comes here in second appeal, and the first point taken before me in appeal is, that such a suit does not lie at all ana reliance is placed on the case of hanuman din v. ram bisal 14 ind. cas. 260 decided by mr. justice banerji. in that suit his.....
Judgment:

Gokul Prasad, J.

1. This is a defendant's appeal arising out of a suit for profits for the years 1323, 1324 and 1325 Fasli. It appears that the defendant-appellant owns an 8-annas share in the village and is also a Lambardar. In the year 1314 Fasli he executed a mortgage of a 3-annas 1-pie out of the 8-annas share in favour of the plaintiffs, the plaintiffs giving them a lease for 7 years of the mortgaged property. The period of lease expired in 1322 Fasli but the defendant continued to make collections and now prevents the plaintiffs from making collections from the tenants. The mortgage has not yet been admittedly redeemed. The plaintiffs brought the present suit under Section 164 of the Tenancy Act as a suit for recovery of profits. One of the pleas raised in defence was, that such a suit did. not lie. The learned Assistant Collector fixed Issue No. 3 on this point and came to the conclusion that the plaintiffs being co-sharers, such a suit was maintainable. This decree was confirmed on appeal after certain findings had been obtained on issues remitted by the lower Appellate Court. The defendant comes here in second appeal, and the first point taken before me in appeal is, that such a suit does not lie at all ana reliance is placed on the case of Hanuman Din v. Ram Bisal 14 Ind. Cas. 260 decided by Mr. Justice Banerji. In that suit his Lordship came to the conclusion that a suit like this by a dispossessed mortgagee did not lie against his mortgagor. That decision is on all fours with the present one and I see no reason to differ from the conclusion arrived at by Mr. Justice Banerji in that case. Mr. Uma Shanker Bajpai on behalf of the plaintiffs-respondents contended that in that case it was alleged by the defendants that the mortgage had ceased to exist because of the want of possession of the mortgagee for more than 12 years but I do not see how this distinction will help the plaintiffs. Mr. Justice Banerji remarks in that case as follows:

The Courts below have dismissed the suit on the ground that this is not a suit for profits by a recorded co-sharer against a Lambardar but is in reality a suit by the mortgagees against their mortgagor who dispossessed them. No doubt, the names of the plaintiffs are recorded in the Revenue papers. But the defendant fills two capacities. He is the mortgagor as well as the Lambardar; by withholding profits he as mortgagor has dispossessed the plaintiffs; and the plaintiffs' remedy is to sue to recover possession and possibly mesne profits. As such mortgagees they cannot, in the guise of a suit for profits, recover possession from their mortgagor in the Revenue Court.' With these remarks I am in full accord. It has, however, been urged by Mr. Bajpai, the learned Vakil for the respondents, that this is really a plea of want of jurisdiction of the Revenue Court and not having been taken in the Court of first instance should not be heard now, and reference is made to Section 196 of the Tenancy Act. This contention is not right. There is no plea that the Revenue Court was not competent to decide the present suit, but that a suit like the present one did not lie at all either in the Revenue Court or in the Civil Court. It is not necessary to enter into the other pleas taken in appeal. I, therefore, allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs in all Courts.


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