NOOR MOHD Vs. SIRAJUDDIN

JUDGEMENT

(1.) This is a revision against the order of the learned Civil Judge of Bulandshahr.

(2.) The Plaintiffs applicants filed an application under Section 12 of the U.P. Agriculturists' Relief Act praying for the redemption of a usufructuary mortgage executed by the predecessors in interest of the applicants. The mortgage was for a sum of Rs. 1,500 and the case of the Plaintiffs was that the opposite parties mortgagees have recovered not only the interest on this sum but also realised in full the principal amount advanced by the mortgagees. The application was filed in the court of the Munsif and it was contested on behalf of the opposite parties. They denied that the Plaintiffs had any right to redeem the mortgage and asserted that they have recovered a very small portion of the profits. The Munsif held that the applicants were successors in interest of the mortgagors and were thus entitled to apply for the redemption of the mortgage. He also held that the applicants were agriculturists on the date of the application and that the original mortgagor was also agriculturist on the date of the mortgage. He accordingly was of the opinion that the Plaintiffs were entitled to redemption but he held that the mortgagees had not been able to recover any part of the principal money and the whole of it was still due. Redemption was accordingly decreed on payment of Rs. 1,500 by the Plaintiffs. The Munsif decreed the suit on 6-10-1952 and the opposite parties went up in appeal against that decision During the pendency of the appeal the UPZA and LR Act came into force and Section 14 of the Act provided that a mortgagee in possession of an estate or share therein shall, with effect from the date of vesting cease to have any right to hold or possess the land but if such land was in personal cultivation of the mortgagee on the date immediately preceding the date of vesting the mortgagor would acquire the rights of bhumidhar in the land if it was his sir or khudkasht. If it was not the mortgagors sir or khudkasht and the land was in the personal cultivation of the mortgagee, the mortgagee was granted an opportunity of paying five times the amount of annual rent calculated at hereditary rates, within six months, to the State Government and he was then to be deemed to be hereditary tenant of the land. In the UPZA and LR Act as originally passed there was no provision deleting the U.P. Agriculturists' Relief Act. The ZA and LR Act was, however, subsequently amended by the UPZA and LR (Amendment) Act, 1953 (Act XVI of 1953). By Section 67 of this amending Act an entry was inserted in Sch. 3 of the principal Act which was numbered as entry No. 13A. This entry had the effect of repealing the UP Agriculturists' Relief Act in areas where the ZA and LR Act was in force. This amending Act was given retrospective operation excepting with reference to three sections of it with which we are not concerned. The result of the amendment was that the UP Agriculturists' Relief Act stood repealed with effect from 1-7-1952. When the appeal filed by the opposite parties before the learned Civil Judge came up for hearing, an objection was taken before him that the Agriculturists' Relief Act having been repealed and the repeal having come into force from before the date of the decree of the Munsif the decree as well as all proceedings taken by the applicants under Section 12 of the U.P. Agriculturists' Relief Act, should be set aside. The learned Civil Judge gave effect to this contention and dismissed the suit but he gave a direction that the suit would only be dismissed if the opposite parties deposited back the sum of Rs. 1,500 within three weeks from the date of the judgment. It appears that after the decree of the Munsif the applicants had deposited this sum of Rs. 1,500 and the same had been withdrawn by the opposite parties.

(3.) The present revision has been filed against the judgment of the learned Civil Judge. The contention of the learned Counsel for the applicants is that the subsequent repeal of the U.P. Agriculturists' Relief Act should not have the effect of setting aside the decree which he had already obtained before the amending Act came into force and also that under the provisions of the ZA and LR Act his clients were entitled to the possession of the land. He also made an application for amendment of the application filed under Section 12 of the UP Agriculturists' Relief Act praying that the same be treated as an application under Section 209 of the UPZA and LR Act. I was not inclined to allow this application and propose to decide the revision according to the pleadings as they are at present.