RADHA SHIAM AND OTHERS Vs. HIRAMANI AND OTHERS

JUDGEMENT

(1.) These three connected appeals are by Plaintiffs and arise out of suits for redemption.

(2.) The plaintiffs executed two deeds of exchange and one deed of gift in 1945. The defendant-respondents filed thereafter three suits for preemption alleging that the alienations made were sales and not deeds of exchange or gift as they apparently appeared to be. These suits for preemption were decreed in the defendants' favour. The present suits have been instituted by the plaintiffs, who were the original transferors, on the allegations that under the provisions of the U.P. Regulation of Agricultural credit Act, 1940, the Transactions which were held to be sales were permanent alienations within the meaning of that statute and could be given effect to only as mortgages. Redemption is now claimed of those mortgages.

(3.) The three transactions were all dated the 13th April, 1945. One was a deed of exchange valued at Rs. 100.00 and is now the subject matter of regulation in suit No. 258 of 1947. The other transaction was again a deed of exchange valued at Rs. 50.00 and is the subject matter of suit No. 259 of 1947. The third transaction was a deed of gift valued at Rs. 50.00 and became the subject matter of suit No. 349 of 1947. In the preemption suits that were filed all these transactions were held to be sales for the amounts mentioned above respectively. The plaintiffs in the suits giving rise to these appeals have alleged that the transfers related to protected land and had been made without any permission under the U.P. Regulation of Agricultural Credit Act, that they should be given effect to as mortgages under the provisions of that statute and that redemption should be ordered in their favour on payment of the amounts of Rs. 100, Rs. 50 and Rs. 50 which were the amounts for which the respective transfers were made. The suits contested on various grounds and the point raise in the defence which has now survived and comes up for decision in these appeals is that the transferors plaintiffs were parties to the pre-emption suits and in their defence they ought to have raised the plea that the transfers, even if sales, were only mortgages in effect and could not be the basis of the suits for pre-emption. The trial Court did not accept the contention that the plaintiffs' suits were barred by ras judicata and decreed the suits. On appeal, however, the lower appellate court while affirming the other findings of the trial Court held that the plaintiffs have omitted to raise the plea relating to the effect of the U.P. Regulation of Agricultural Credit Act could not now claim the benefits of that statute and the suits for redemption were barred under Sec. 11, Explanation IV, of the Code of Civil Procedure.