MOHAMMAD LDRIS Vs. SAT NARAIN

JUDGEMENT

(1.) This is an appeal by special leave against an order passed by the Allahabad High Court in Civil Revision No. 1077 of 1957 dated October 9, 1961 in a suit in which a decree for redemption on an application under S. 12 of the U. P. Agriculturists Relief Act has been passed. The appellants are the successors-in-interest of one Suleman who was the original mortgagee. The original respondent in this appeal Sat Narain was the successor-in-interest of one Jantari who was the original mortgagor. Subsequently, Sat Narain sold his interest to others who have been ordered by us to be joined as respondents under O. 22, R. 10 of the Code of Civil Procedure on their application in this behalf (C. M. P. No. 2081 of 1965). The land in dispute measures 5 bighas and 3 bighas (Khata No. 2 situate in Bhagwatipura, pargana Kewai, district Allahabad) and consists of 5 plots Nos. 26, 27, 29, 30 and 32. Jantari had mortgaged the said land with Suleman on October 4, 1929 and the mortgage, now it is admitted, was usfructuary in nature. It is also admitted not that the land was Sir Sankalap of Jantari.

(2.) On May 27, 1952, Sat Narain filed an application under S. 12 of the U. P. Agriculturists Relief Act in the court of the Munsif (East) Allahabad on the allegation that the mortgage had been paid off from the usufruct of the land and he was entitled to redeem it. As required by the Agriculturists Relief Act the claim was made in the prescribed form and set out the accounts by reason of which it was claimed that the mortgage was satisfied. The defendants, who represented Suleman (the mortgagee) opposed the application. Two written statements were filed on October 4, 1952 and March 31, 1953. Both the statements alleged that the plaintiff was not an agriculturist and hence the suit was not maintainable under S. 12 of the U.P. Agriculturists Relief Act. They also stated that the mortgage was not satisfied from the usufruct as the land was not productive. One of the written statements denied even the mortgage. All the defendents claimed that they had become Sirdars by reason of the U. P. Zamindari Abolition and Land Reforms Act and that the suit was not, therefore, maintainable. Although the Abolition Act had come into force from July 1, 1952 no other claim was set up. Nor was the suit challenged as incompetent by reason of any provisions of the Abolition Act.

(3.) The learned Munsif framed five issues which he decided in favour of the plaintiff before him. He held that there was a mortgage as alleged; that the plaintiff and the original mortgagor were agriculturists; and that the mortgage had been satisfied from the usufruct. He also held that the defendants (mortgagees) had not become Sirdars and the suit was maintainable. In the result he passed a decree in favour of the plaintiff on November 24, 1953. The defendants appealed to the District Court but by a judgment dated April 17, 1957 their appeal was dismissed. All the above findings were confirmed by the Civil Judge, Allahabad who disposed of the appeal. The main point which was urged before the appellate Court was that as the U. P. Agriculturists Relief Act was repealed by an Act, in 1953 which amended the Abolition Act, the suit under S. 12 of the U. P. Agriculturists Relief Act was rendered incompetent and the plaintiffs could not eject the representatives of the mortgagee except in accordance with the provisions of the Abolition Act. The contention was not accepted by the learned Civil Judge, Allahabad. An application for revision was then filed in the High Court but it was dismissed by the order impugned in this appeal as the decree of the Munsif had already been executed and possession had been delivered on May 1, 1957 to the successor-in-interest of the original mortgagor. Mr. Justice Mithan Lal who decided the revision, held that no interference was called for as the property had gone back to the original owner and substantial justice had already been done. From the last order the present appeal has been filed by special leave of this Court.