BASDEO Vs. BOARD OF REVENUE

JUDGEMENT

(1.) GAJADHAR Khatik was the occupancy tenant of the plots in dispute. In or about the year 1923 he mortgaged them in favour of the res pondents second set. Gajadhar died and the tenancy was inherited by his son Moti. In 1944 a tripartite agreement was entered into among Moti, the Maharaja of Banaras, who was the zamindar and the appellants. As a result, two docu ments were executed. One was dated 4th September, 1944, where under Moti sur rendered his occupancy tenancy holdings in favour of the Maharaja of Banaras, the zamindar, on payment of Rs. 6,000 as consideration. This amount was paid by the appellants as consideration for being granted a lease of the plots by the zamin dar. On 20th February, 1945, the Maha raja of Banaras executed a registered deed of lease letting out the plots to the appellants on a premium of Rs. 6,000. Out of the sum of Rs. 6,000, a sum of Rs. 3,300 was retained by the appellants for payment to the mortgagees, namely, respon dents second set and the balance of Rs. 2,700 was paid in cash to Moti Khatik.

(2.) ON 10th April, 1945, the appel lants, namely, the new lessees, filed a suit for declaration and possession under Section 59/180 of the U. P. Tenancy Act against the mortgagees, respondents se cond set.

(3.) THE trial court decreed the suit on 6th September, 1948. On appeal the decree was set aside and the suit was dismissed. On 18th August, 1951, the Board of Revenue, however, allowed the second appeal filed by the plaintiffs and restored the decree of the trial court. The Board of Revenue observed that the appellants before it did not deny the liability to pay the mortgage money and, in fact, they offered to pay it. Therefore, they could not be estopped from ejecting the mortgagees whose interest had been extinguished under Section 47 of the U. P. Tenancy Act. In execution of this decree for possession, the appellants obtained possession on 5th October, 1951. The names of the mortgagees were expunged from the records and those of the appel lants were mutated.