LALA DEVI SINGH Vs. BHAGWAN DASS BADLU

JUDGEMENT

(1.) This second Appeal under Section 100 of the Code of Civil Procedure has been filed by the defendants against the appellate judgment and decree of the Senior Subordinate Judge dated the 15th of November, 1965 by which the learned Judge has allowed the appeal and reversed the decree of the trial court dated the 5th of February, 1965 and finally decreed the suit of the plaintiffs restraining the defendant-appellants from disturbing the possession of the plaintiffs and third defendant who were the owners of the property in dispute except by due process of law.

(2.) The brief facts leading to this appeal are that Ram Kalan father of Padam Singh along with his relation Lala, appellant, son of Devi Singh was the owner of the land in dispute. According to Jamabandi (Ex. P. 3) for the year 1940-41 Bhagwan Dass, respondent, was as found by the lower appellate court shown as the tenant in possession of the land in dispute. Later on Ram Kalan mortgaged the property in dispute in favour of one Ram Sarup and after redeeming the same he sold it to Ram Sarup in 1943. The sale was pre-empted by Lala and Padam Singh. appellants, both of whom were at that time minors and the pre-emption claim was preferred by them through Bhagwan Dass, respondent who is a relation of the appellants and the pre-emption money of Rs. 950.00 was advanced by him in the name of and on behalf of the appellants and the land was pre-empted. As collateral security for the advance of this amount the land in dispute was mortgaged by way of usufructuary mortgage by mutation sanctioned on the 13th of February, 1954 (Exhibit D4) by and on behalf of the minor-appellants through their mother with Bhagwan Dass, respondent, and this mortgage has an important bearing on the case. Eventually the appellants after attaining majority filed a suit on the 30th of April, 1958 for redemption of the mortgage. This suit was decreed on the 5th of May, 1961 and in pursuance of the decree symbolic possession was taken by the appellants on the 7th of June, 1961. Thereafter the contesting respondent contended that his pre-existing rights as a tenant of the land in dispute revived upon the redemption and he claimed that the appellants should not interfere with his possession. This suit was filed on the 4th of September, 1961 and was dismissed by the trial court on the finding that the plaintiff respondent was the non-occupancy tenant who had impliedly surrendered his tenancy rights upon the mortgage resulting in merger of the assets and extinguishment of his rights as a tenant and on appeal the lower appellate court came to concrete conclusion and it found that upon the mortgage the plaintiff-respondent had no intention to surrender his rights as a tenant and in fact he had intended to preserve his possession and had advanced money for success of the claim of the appellants for pre-emption; otherwise the respondent could as well become a tenant of the original transferee. The court further held in agreement with the trial court that there was neither implied surrender nor merger of the estate to extinguish the relationship of landlord and tenant. As a result it decreed the suit. The defendant-appellants in this second appeal have challenged the decision of the lower appellate court and have urged that the suit of the plaintiff-respondent was barred by res judicata and the plea of tenant ought not to have been raised as a defence in the suit for a redemption and secondly the civil court had no jurisdiction by virtue of Section 17 (d) of the Punjab Tenancy Act to record a finding that the plaintiff-respondent was an occupancy tenant. The counsel has strongly contended that upon the grant of the mortgage the rights of the respondent as a tenant had, by operation of law, merged in the mortgage and had not survived for revival on the redemption of the mortgage. He has urged that the finding of the lower appellate court that the respondent was a tenant is based on no evidence, nor is the finding of the lower appellate court on the intention of the parties to preserve the tenancy rights founded on any evidence and the lower appellate court has mis-directed itself with regard to burden of proof in respect of this finding.

(3.) The first two contentions about res judicata and iurisdiction of the civil court had neither been pleaded by the appellants nor raised in the trial court or in the lower appellate court nor have been raised in the grounds of appeal in this court and I have not allowed the counsel to raise them in this court at this stage. The reason is that res judicata is a mixed question of law and fact and the material in the shape of pleadings of the parties in the previous suit as well as the judgment must have been placed on the file and the intention of the parties must have been attracted to an issue on this point. Even otherwise there does not appear to be any substance as in a suit for redemption of a mortgage which had been filed in the revenue court the question of the rights of the mortgagor as a tenant existing prior to the grant of mortgage could scracely constitute the grant of defence which ought not to have been raised.