JOKHU MAL Vs. SUDAMA MAL

JUDGEMENT

(1.) THIS is an application in revision arising out of proceedings under Section 12, Agriculturists' relief Act. The facts are simple. On 17-6-1913, one Udit Mal executed a simple mortgage of the property in dispute in favour of one Billar Mal for a sum of Rs. 550/ -. On the 20th August, 1914, udit Mal executed a usufructuary mortgage in respect of the same property in favour of four persons, Lalla Mal to the extent of one-third share, Oudh Behari Mal, Jokhu Mal and Palakdhari to the extent of two-thirds share. In 1923, Billar Mal, the first mortgagee, sued upon his mortgage and obtained a decree for sale of the mortgaged property. The heirs of Udit Mal, the mortgagor, were impleaded as defendants in the suit. The decree was sent to the Collector for execution. The Collector held a sale under the U. P. Regulation of Sales act 26 of 1934 and instead of auctioning the property transferred it in favour of four persons, jokhu Mal, Sri Narain Mal, Sheo Shanker Mal and Rama Shanker Mal. The deed of transfer is dated 16-10-1936. It may be noted that Jokhu Mal was one of the usufructuary mortgagees, Sri Narain Mal and sheo Shankar Mal were the heirs of Oudh Behari Mal, another usufructuary mortgagee, but rama Shanker Mal was not one of the usufructuary mortgagees, and the heirs of Lalla Mal, one of the usufructuary mortgagees, were not the transferees under this transfer. On 30-10-1937 the collector put the transferees in possession of the transferred property. Since the transferees, with the exception of Rama Shanker Mal, were the usufructuary mortgagees, they obviously did not raise objections to this procedure. It does not appear whether Lalla Mal was actually ejected or remained in possession as mortgagee.

(2.) ON 14-2-1938, however, the Board of Revenue set aside the transfer made by the Collector with the result that the title to the equity of redemption that had been transferred by the Collector became re-vested in the heirs of the mortgagor. In 1945 an application was made under Section 12, Agriculturists' Relief Act by the heirs of the mortgagor for redemption of the usufructuary mortgage. The defendants to the application were the heirs of all the usufructuary mortgagees as well as Rarna Shanker Mal himself, one of the transferees.

(3.) THE main defence to the suit with which we are concerned in the present application was that the title to the mortgaged property became extinguished by lapse of time, as, after the sale was set aside by the Revenue Court, the plaintiffs did not obtain restitution of possession over the property by means of an application under Section 144, C. P. C. within a period of three years.