HARI NARAIN Vs. RAM SURAT AND OTHERS

JUDGEMENT

(1.) This second appeal filed by the plaintiff arises out of a suit under Sec. 209 read with Sec. 14 (2) of the U.P.Z.A. and L. R. Act. The plots in dispute, which were sir and khudkasht of the mortgagor on the date of mortgage, were mortgaged, with possession by the original owner Ram Nivas Chaudhari on 5th of Feb. 1931 in favour of the predecessor-in-interest of defendants Nos. 1 to 6. After the death of Ram Nivas his son Mahabir succeeded to his property and thereafter he executed a deed of gift in favour of his daughter's son the present plaintiff on 2nd of June 1945.

(2.) The suit was contested on a variety of grounds. It has been found that the plaintiff is the daughter's son and is the donee of the property in suit. It has also been found that the property was a sir and khudkasht of the mortgagor on the date of mortgage. The trial court held that the plaintiff had a right to claim possession and so the suit was decreed, but the lower appellate court came to the conclusion that the plaintiff was neither a mortgagor nor a legal representative of the original mortgagor and so he had no right to claim the property. The appeal was allowed and the suit was dismissed. It is against this finding that the present appeal has been filed.

(3.) . It has been contended on behalf of the appellant that the lower appellate court went wrong in holding that the plaintiff was neither a mortgagor nor a legal represent and that according to the scheme of the U.P.Z.A. and L. R. Act one of the consequences of vesting was that a possessory mortgage became a simple mortgage and a mortgagee in possession ceased to have any right to hold or possess any estate or share therein or any land situated in such estate. According to his argument the land should be deemed to be sir and khudkasht of the mortgagor which term would include not only the original mortgagor but persons deriving title from him.