JANKI KOERI Vs. JAMUNA KOERI

JUDGEMENT

(1.) This is a defendant's second appeal which arises from a suit for possession. The two Courts below found that Dhari Koeri, ancestor of plaintiffs and Sit Basant were the occupancy tenants of the holding in which the plot in suit was included and they granted an usufructuary mortgage of the plot in suit in favour of Rekha Koeri, predecessor-in-interest of defendants 1st set, in the year 1920. The Courts below, therefore, decreed the plaintiff's claim for possession over the plot in suit on payment of the mortgage money to defendants 1st set within a specified time.

(2.) The present appeal has been filed by one of the successors-in-interest of the original mortgagee. One of the points raised by the appellant is that the mortgage of occupancy holding being void, the position of the defendant-appellant became that of a trespasser and he can be ejected, if at all, only by a suit under Section 180 of the U.P. Tenancy Act in the Revenue Court. The contention has no force. It has been consistently held by this Court that though the mortgage of an occupancy holding is void, yet the position of the mortgagee inducted to the property under the invalid mortgage is not that of a trespasser. His position, though not strictly that of a mortgagee under the provisions of the Transfer of Property Act, is nonetheless analogous to it. In Lallu Singh v. Ram Nandan, 1930 All LJ 153 at p. 161 : (AIR 1930 All 136 at p. 139), Mukerji, J., interpreting an earlier Full Bench decision of this Court, pointed out that a sub-tenant and an usufructuary mortgagee can be placed on the same footing. Niamatullah, J., who was also a member of that Full Bench, observed that the transaction of an usufructuary mortgage of an occupancy holding was not valid as a mortgage with all its incidents and subject to the provisions of law relating to usufructuary mortgages, but is valid only so far that the mortgagee could retain possession and enjoy it, as agreed between the parties, a feature which is not peculiar to usufructuary mortgage as such, but was also one of sub-lease or other arrangement under which possession of occupancy holding was made over by the tenant to another without creating an interest or charge in favour of the transferee. In the light of these abundant authorities it is perfectly clear that an usufructuary mortgagee of occupancy tenancy is not a trespasser. Although the mortgage of occupancy holding is not permitted under law, yet the creditor who enters into possession under the invalid mortgage cannot prescribe to any title or rights different from or greater than those created under the invalid transaction through which he was inducted to the property.

(3.) Another contention of the appellants, and in tact the one on which main stress was laid by his counsel, is that the mortgagees became Asamis under Section 21 (1) (d) of the U.P.Z.A. and L.R. Act and as such they cannot be ejected from the plot in dispute except by a suit in the Revenue Court under Section 202 (c) of U. P. Z. A. and L. R. Act. In the appeal before the lower Appellate Court the defendant raised this point, but the learned Civil Judge held that a mortgagee who was in possession under the invalid mortgage prior to the date of vesting, could not claim to be an Asami under Section 21 (1) (d) of the U.P.Z.A. and L. R. Act. This view does not appear to be correct. I have already held in Bishwanath Singh v. Sunder, S.A. No. 737 of 1958, D/5- 9-1962 (All), that 'mortgagee in possession' within the meaning of Section 21 (1) (d) does not necessarily refer to a creditor who enters into possession under a valid mortgage. The expression 'mortgagee' in the section has been used by the legislature to describe the factual relationship irrespective of the fact whether the transaction is or is not valid as a mortgage with all its incidents and characteristics of a legally valid mortgage. I, therefore, hold that the mortgagees in the instant case acquired the status of Asamis under Section 21 (1) (d).