VISHWANATH AND OTHERS Vs. JAI MANGAL LAL

JUDGEMENT

(1.) JUDGEMENT The suit which has given rise to this second appeal was instituted in 1951 for recovery of possession over certain plots of agricultural land. Mata Badal who was an occupancy tenant of the plots in suit died leaving Smt. Shahzadi, his daughter as his heir, Smt. Shahzarli mortgaged the land usufructuarily on 1st June 1909 to Basdeo and others for a sum of Rs. 1500/- and put them in possession, Jai Mangal Lal plaintiff as the heir of Mata Badal, while the defendants are the heirs of the mortgagees. These facts were not in dispute and the main ground on which the suit was contested by the defendants was that the relationship of mortgagor and mortgagee no longer substituted between the parties and the defendants had become tenants of the land in suit. Pleas of limitation, res judicata and estoppel were also taken. The courts below decreed the suit subject to payment of Rs. 1500/- by the plaintiff to the defendants. Aggrieved by the decree passed against them the defendants have preferred this appeal.

(2.) THE only contention raised before me on behalf of the defendants was that on account of the expiry of the period of limitation prescribed for the institution of a suit under Sec. 180 of the U.P. Tenancy Act of 1939 the defendants had acquired the rights of hereditary tenants and no suit for recovery of possession was, therefore, maintainable against them. The facts on which this contention was founded are as follows. The plaintiff filed suit No. 451 of 1945 against the defendants claiming possession on the ground that the mortgage executed by Smt. Shahzadi was null and void, but also making an averment in the plaint that he was entitled to the benefit of the U.P. Agriculturists Relief Act and the mortgage money had been satisfied from the usufruct of the mortgaged property. The court before which the suit was instituted felt that the plaintiff could not in the same suit treat the mortgage as a nullity and also allege satisfaction of the mortgage and it, therefore, put the plaintiff to election.

(3.) IT appears that at the time of the institution of suit No. 451 of 1945 the plaintiff was not quite sure as to what the correct legal position in regard to the mortgage executed by Smt Shahzadi, was. This was perhaps natural. On the one hand there was the fact that the mortgage related to an occupancy tenancy and had been created after the enforcement of the Tenancy Act No. II of 1901. Further, the mortgagor had only a life interest in the property and she was dead. The plaintiff, therefore, regarded the mortgage as devoid of all validity and force and felt that he had no obligation to pay back to the defendants the amount advanced under the mortgage. The suit was thus framed as one for possession against trespassers. But the plaintiff was also faced with the situation that a sum of Rs. 1500/- had been advanced under the mortgage to Smt. Shazadi who was the tenant for the time being and a period of twelve years had expired since the execution of the mortgage. The plaintiff could not, therefore, rule out the possibility of being required to pay back the mortgage money as a condition to recovery of possession.