RAM NIHORE AND ORS. Vs. VIJAI DUTT SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit for declaration and in the alternative for possession regarding certain plots of agricultural land. The suit has been decreed with respect to some of the plots and dismissed with respect to others. The plaintiff has not appealed but the defendants have come up in appeal to this Court.

(2.) The following facts are not in dispute; most of them had been admitted in the lower appellate court and all of them were admitted before me. The village in which the plots in suit are situate was granted by the Taluqdars of the village in Guzara to Madho Bux Singh who mortgaged them usufructuarily with Badullah in 1905 and 1906 although he had no power of transfer. The Court of Wards in management of the estate of Nageshwar Prasad Singh, the then proprietor of the Taluqa, brought a suit for possession against Badullah and Madho Bux Singh, and after obtaining a decree against them on 7th Dec. 1908 took delivery of possession on 21st Dec. 1908. Thereafter it transpired that Sarju and Musai, ancestors of the present defendants, were in possession of the plots in dispute whereupon suits were brought against them in which Sarju and Musai claimed to be mortgagees under two mortgage-deeds dated. 9th Aug. 1890 and 23rd March 1898 executed by Madho Bux Singh. It was held in those suits that although Madho Bux Singh was incompetent to create the mortgages, Sarju and Musai had acquired mortgagee rights by adverse possession and the suits were accordingly dismissed. The plaintiff respondent is a grandson of Nageshwar Prasad Singh although he is not an heir of Madho Bux Singh and the defendants appellants are heirs of Sarju and Musai. The plots for which the suit has been decreed by the courts below were sir of the mortgagor when the mortgages of 1890 and 1898 were executed and they were in the personal cultivation of the defendants on the date immediately preceding the date of vesting. The rights of the parties have to be determined on the basis of these admitted facts.

(3.) The only question involved in the case is whether by virtue of Sec. 14 of the U.P. Zamindari Abolition and Land Reforms Act the plaintiff-respondent is a bhumidhar of the plots for which his suit has been decreed. The answer to this question clearly depends upon whether the plaintiff-respondent can be regarded as a mortgagor in relation to the mortgages executed by Madho Bux Singh in 1890 and 1898. The courts below were perfectly correct in holding that even though Madho Bux Singh was incompetent to execute the mortgages, Sarju and Musai prescribed mortgagee's title by having been in possession as such for a period of over 12 years. But the point to be considered is whether Nageshwar Prasad Singh and his heirs representing the grantors of the Guzara could be said to have become mortgagors, and it is in the view that the courts below took on this cardinal question that they were obviously mistaken.