AUTAR SINGH Vs. BHAWAN SINGH AND ANR.

JUDGEMENT

(1.) This revision is directed against an order Under Sec. 22 of the UP Regulation of Agricultural Credit Act 1940, (hereinafter referred to as the Act) granting an application by the opposite parties for possession of the land in dispute.

(2.) One Genda Singh, who was the owner of the land in dispute, executed on 28 -2 -1941 a deed of sale in favour of Autar Singh, the present Applicant. On 17 -5 -1945 Bhawan Singh, opposite party No. 1 and Udey Singh, father of opposite party No. 2, filed a suit for a declaration that the sale deed aforesaid operates only as a usufructuary mortgage. The present Applicant, Autar Singh, contested that suit. He pleaded that the Plaintiffs were not entitled to sue, that the suit was barred by res judicata as well as time and that the vendor had legitimate grounds for not applying to sell and was entitled to exemption. It is noticeable that there was no plea that the subject matter of the sale deed was not protected land within the meaning of the Act. The learned Revenue Officer repelled the various pleas in bar and decreed the suit on 26 -11 -1945. He held that the vendor had not obtained the permission of the Assistant Collector as required by Sec. 24 of the Act and declared that the sale deed executed by Genda Singh could operate as a usufructuary mortgage for a period of 20 years. Aggrieved, the present Applicant went up in appeal (Civil Appeal No. 20 of 1946). The learned District Judge of Kumaon dismissed the appeal on the merits on 30 -3 -1948.

(3.) On the expiry of 20 years from the date of the sale, the heirs of Genda Singh filed an application (No. 18 of 1961) Under Sec. 22 of the Act for possession of the mortgaged property on the ground that the mortgage had come to an end. This suit was resisted by the vendee mortgagee, Autar Singh, on the principal ground that the previous decree dated 24 -11 -1945 was without jurisdiction and the sale deed executed by Genda. Singh operated as a sale and not as a mortgage. The court below has repelled this plea. It held that the previous decree would not be without jurisdiction on the grounds taken in defence, that there was no local rate imposed on the land. It granted the prayer for possession.