CHET NARAYAN SINGH Vs. JANGALI SINGH AND OTHERS

JUDGEMENT

(1.) THE applicant's predecessor in title was a fixed rate tenant of the land in dispute and he mortgaged it with possession to the predecessors of the opposite parties. In 1945 the applicant applied under Section 12 of the Agriculturists' Relief Act contending that the mortgage had been fully discharged out of the usufruct. That application was dismissed in 1945 by the trial court on the ground that it was barred by res judicata on account of a preliminary decree for redemption having been obtained by him previously and he not having deposited the amount in court and having obtained a final decree for redemption. This view of the trial court was confirmed on appeal by the District judge in 1949 and in 1950 this application in revision was filed.

(2.) IN 1952 the ZA and LR Act came into force. It repealed the Agriculturists' Relief Act. Under Section 18(1)(c) of the Act the applicant acquired bhumidhari rights over the land in dispute on account of his being a fixed rate tenant before the abolition of the zamindari and the opposite parties acquired under Section 21(1)(d) rights of assamis on account of their being mortgagees in actual possession from a person belonging to a class mentioned in Section 18(1)(c). Section 202 of the Act lays down that no asami shall be ejected from his holding except as provided in the Act. Section 202 contains the only provisions relating to ejectment of asamis. Under that section an asami is liable to be ejected from his holding on the grounds mentioned in Sections 167, 191 or 206, and, if he is an asami belonging to the class mentioned in Section 21(1)(d), on the ground that the mortgage has been satisfied or the amount due has been deposited in court.

(3.) AFTER the repeal of the Agriculturists' Relief Act an action can be taken under Section 12 of it unless it be held that the intention of the Legislature repealing it was that no action should be taken under it after the repeal. Section 6(c) of the UP General Clauses Act provides that, unless a different intention appears, the repeal of an Act by an Uttar Pradesh Act shall not affect any right or liability acquired or incurred under the repealed Act and shall not affect any remedy or legal proceedings commenced before the repealing Act in respect of any such right or liability and the legal proceedings would be continued and the remedy would be enforced as if the repealing Act had not been passed. In a proceeding under Section 12 of the Agriculturists' Relief Act if the court was satisfied that the applicant was entitled to redeem the mortgage and that the mortgage stood redeemed or that the amount deposited by him was sufficient for its redemption, it would order that the mortgage be redeemed, that the money deposited should be paid to the mortgagee and that the title deeds in possession of the mortgagees be deposited in court to be delivered to the mortgagor and, if necessary, put the applicant in possession of the mortgaged property. The words "if necessary" meant "if required by the nature of the mortgage." If the mortgage was a simple mortgage there was no necessity of putting the applicant in possession of the mortgaged property because he was already in possession. If the mortgage was, on the other hand, a usufructary mortgage, after the redemption the mortgagee was not entitled to remain in possession and it became necessary to restore possession to the applicant. Therefore, what was meant by Section 18 of the Agriculturists' Relief Act was that in case of a usufructuary mortgage the court while ordering redemption was also required to restore possession of the mortgaged property to the applicant. It was thus clear that the redemption of a usufructuary mortgage under the Agriculturists' Relief Act involved not merely a declaration that it stood redeemed but also putting the applicant into possession. Putting him into possession could not be separated from the declaration that the mortgage stood redeemed. The Court could not content itself with only making the declaration; it was bound at the same time to put the applicant into possession. When our learned brother Srivastava said in his judgment that a court under Section 12 of the Agriculturists' Relief Act could simply make a declaration and refrain from passing an order of restoration to the applicant, we respectfully differ from him. In our opinion it would be impossible for the court simply to make a declaration that the mortgage stands redeemed; in the case of a usufructuary mortgage it must follow up the declaration with an order of restoration of possession. It follows that if it cannot make an order of restoration of possession, it can not make a declaration even; Sections 12 and 18 of the Act do not at all contemplate that in the case of a usufructuary mortgage the court could only make a declaration and refrain from ordering restoration of possession.