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Kumar Sainthwar Vs. Bishun Mohan Sahai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in73Ind.Cas.651
AppellantKumar Sainthwar
RespondentBishun Mohan Sahai and ors.
Excerpt:
landlord and tenant - occupancy rights, mortgage of--relinquishment in favour of landlord--redemption. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - the zemindars then sued to eject the mortgagees, and, although they got a decree, failed to execute it, with the result that the mortgagees remained in possession......with the result that the mortgagees remained in possession.2. the zemindars then brought a suit to redeem the mortgage and they got a decree, the courts below, allowing them to redeem the mortgage on payment of rs. 523 within the time stated in the decree of the courts below.3. the mortgagees appeal. three points have been taken.(1) that the relinquishment of bodha was in favour only of some of the zemindars of the village and was not a complete relinquishment. this, point was not taken in the written statement. no issue was raised upon it and, of course, no evidence was led on the subject. it is taken for the first time in appeal and there are no materials on which it could be disposed of in the way in which the appellant wishes. we do not think the court below ought (to have allowed.....
Judgment:

1. Bodhai, who is an occupancy tenant, mortgaged his occupancy holding for Rs. 99, in favour of one Bachchan Saithwar, on the 31st March 1896. On the 10th June 1922 Bodhai relinquished his holding in favour of the zemindars-respondents. The zemindars then sued to eject the mortgagees, and, although they got a decree, failed to execute it, with the result that the mortgagees remained in possession.

2. The zemindars then brought a suit to redeem the mortgage and they got a decree, the Courts below, allowing them to redeem the mortgage on payment of Rs. 523 within the time stated in the decree of the Courts below.

3. The mortgagees appeal. Three points have been taken.

(1) That the relinquishment of Bodha was in favour only of some of the zemindars of the village and was not a complete relinquishment. This, point was not taken in the written statement. No issue was raised upon it and, of course, no evidence was led on the subject. It is taken for the first time in appeal and there are no materials on which it could be disposed of in the way in which the appellant wishes. We do not think the Court below ought (to have allowed it?) to be raised, for the first time in appeal. We see, however, no reason to differ from the Court below in its conclusion on the point.

The next point is to the effect that the zemindars are not entitled to redeem this mortgage. It is admitted that the mortgage is still in existence; therefore, there must be somebody who is entitled to redeem it. It has been held by this Court that in a case of this kind where an occupancy tenant relinquishes his holding in favour of the zemindar, the zemindar becomes the transferee of any mortgagor's right, which might have been created on it. The zemindar, therefore, is entitled to redeem.

The last point taken is that the amount fixed by the Court below should have been Rs. 599 and not Rs. 523. This argument is based on the assumption that a particular compromise was come to between the Parties in a former litigation in which tie -mount was fixed at Rs. 599. The Court below has found that that compromise has nothing to do with the present case.

4. Under the circumstances, none of these pleas raised has any force.

5. The result is the appeal fails and is dismissed with costs.


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