AJODHIA SINGH Vs. DATA DIN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for possession. The suit was instituted in the revenue Court under Section 180, D. P. Tenancy Act. The plaintiff alleged that on 4-7-1928, he mortgaged his tenancy plots with Ajodhia Singh, defendant 1, and placed him in possession, that Srimati Ram Pati, defendant 2, was wife of Ajodhia Singh and her name recorded in the revenue papers without any right, that the mortgage money had been paid up from the usufruct of the land in suit, that the plaintiff approached the mortgagee in July, 1949, with the mortgage consideration for redemption of the land in suit, but that the defendant refused either to accept the money or to redeem the land in suit. The plaintiff, therefore, prayed that a decree for possession may be passed against the defendants and damages as allowed by law may also be awarded to him. Defendant 2 did not put up any defence. The salt was contested by defendant 1 alone. He pleaded that he was not a mortgagee of the plots in suit because no mortgage was ever executed, that he was himself the tenant of the land and that in any case he had perfected his right to possession as a hereditary tenant by virtue of having been in possession of the plots in suit for more than three years and that the suit was barred by limitation. One further plea was raised by him. It was worded in these terms: That the suit in the present form was defective and the Court had no jurisdiction to try it. He explained this plea, however, by saying that the plaintiff should have filed a suit for redemption under Rule 12, Agriculturists' Relief Act or under Section 83 for account.

(2.) The trial Court framed four issues: 1. Is defendant-mortgages of the land in suit? 2. Is defendant trespasser?

(3.) Is the suit maintainable?