HAMID HUSAIN Vs. RAM NARESH MALLAH AND OTHERS

JUDGEMENT

(1.) THE following question has been referred by a learned single Judge to a Division Bench.

(2.) BRIEFLY stated the facts are that the predecessor-in-interest of plaintiff respondent Tulsi Mallah executed a mortagage of his occupancy holding in favour of the predecessor in interest of the defendant appellant on 14th May, 1913, for a consideration of Rs. 500/-. The present suit was instituted in the civil court for possession of the disputed property on payment of mortgage money. The defence was that the suit was not maintainable in the civil court and that the defendant had become Asami and the only proper remedy for the plaintiff was to institute a suit under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter called as the Act).

(3.) SRI N.D. Ojha, learned counsel for the appellant, has contended that under clause (d) of Sub-Section (1) of S. 21 of the Act a mortgagee in actual possession from a person belonging to any of the classes given in clauses (i) to (vii) and (ix) of S. 19 shall be deemed to be an Asami. In this case the mortgage being of an occupancy holding, it will be covered by clause (iii) of Section 19. Consequently, the appellant became Asami and the only proper remedy for the respondent was to institute a suit for ejectment under S. 202 of the Act. For this purpose learned counsel has submitted that even though the transfer of an occupancy holding or the holding of a hereditary tenant may not have been transferable under the law yet on reading Ss. 19 and 21(i)(d) together the effect was that every person who was in fact, a mortgagee from the tenants described in the aforementioned clauses of Section 19, would acquire the status of an Asami. Sri V.P. Migra, learned counsel for the respondent has, on the other hand, contended that, according to the provisions of the U.P. Tenancy Act or under the old N.W.P. Tenancy Act of 1881 certain transfers of non-transferable tenancies such as occupancy tenancies were permissible, and the Full Bench in the case of Khiali Ram v. Nathu Lal, ILR 15 All 219 expressed the view that, the right of occupancy though may not be strictly transferable yet the legislature did not prohibit the occupancy tenant from transferring the right, to occupy. According to him S. 19 applies only to such rights which were transferable under the provisions of law and only those mortgagees in actual possession have become Asamis who were in possession as mortgagees of transferable tenures. According to his submission a mortgagee of are occupancy holding was not a mortgagee in law and could not be treated to be in actual possession as a mortgagee and so clause (d) of Sub-Section (1) of S. 21 of the Act did not apply. He has also contended that according to the earlier decisions of this Court the position of such a mortgagee is, that of a mere licencee and in no sense has he, become a mortgagee. Consequently, the Courts below were right in holding that such a person is not a mortgagee in possession.