NAGESHWAR UPADHYA Vs. CHANDRA CHARUMAN TEWARI

JUDGEMENT

(1.) This is a defendants' appeal arising out of a suit for accounting under Section 33 of the U. P. Agriculturists' Relief Act.

(2.) In 1894 two persons Badriman and Moharman usufructuarily mortgaged their plots in dispute, which were at that time their sir plots, to Deoki Nandan, Nageshwar and Ram Lagan. Possession over the plots was taken by the mortgagees. In the year 1909, the equity of redemption of the mortgagors was sold at an auction sale and purchased by one Chandrabali Dube. It does not appear that the mortgagors claimed any exproprietary rights on the sale of their proprietary rights in the equity of redemption in 1909. On the 13th September 1944, the suit which has given rise to this appeal was brought by the successors of the original mortgagors against Nageshwar, Indrajit and Ganga Upadhya sons of Ram Lagan, and Mt. Kunta Upadhyan widow of Deoki Nandan, mortgagees. The plaintiffs' case was that on account of the sale of equity of redemption in 1909, the rights of exproprietary tenancy arose in their favour and as there was an outstanding mortgage upon the property, the exproprietary tenancy right remained in abeyance and that they were still ex-proprietary tenants of the plots and entitled to redeem the mortgage. They, therefore, alleged that they were entitled to sue for accounting under Section 33 of the U. P. Agriculturists' Relief Act.

(3.) The defence was that no right of ex-proprietary tenancy accrued in favour of the plaintiffs and they were not entitled to sue and further that the purchaser had already recognised the mortgagees as his tenants.