THAKUR BHAGWANSINGH THAKUR RAMSINGH Vs. SUPYARSINGH NIHALSINGH

JUDGEMENT

(1.) THIS appeal is by the Plaintiff in a mortgage suit which has been partly decreed in his favour. By Exh. P.3 dated 17 September 1950 the Respondent Supyarsingh mortgaged a plot and a house situated in village Mahragaon, settlement No. 250 (Surajganj, Itarsi), tahsil and district Hoshangabad, to the present Appellant for Rs. 16,000. On foot of this mortgage, a preliminary decree has been passed excluding the occupancy land and foreclosing the superstructure giving to the decree -holder the option to recover the entire debt by sale of the superstructure and also by attachment and sale of the Defendant's other property. No interest has been awarded. In other words, the learned Judge has passed a decree for foreclosure against the superstructure, has given the option to the mortgagee to sell the superstructure and a right to recover the balance, if any, by a personal decree against the mortgagor.

(2.) THE appeal filed by the mortgagor in which he had questioned the preliminary decree failed for want of prosecution and we have passed a separate order dismissing that appeal.

(3.) IN our opinion, this submission is without substance. "Land" which is the subject -matter of the C.P. Tenancy Act is agricultural land. Once land has been so designated and is either occupancy or absolute occupancy, the nature of land does not change according to the use to which it is put. The tenure which fastens on such land continues even though the rent may be increased or decreased as the case may be. It is an erroneous assumption to think that tenants by their own action can render agricultural land into non -agricultural land. Indeed, the very sections to which the learned Advocate -General referred clearly show that the landlord can bring the land within agriculture by having the tenant ejected if he is guilty of diverting it to non -agricultural purposes. Where the landlord does not take this action, he may apply for enhancement of rent and the revenue officer can also suo motu enhance the rent after causing notice to be served upon the tenant. Even agricultural land so diverted can become agricultural land again by being used for pure agricultural purposes and the enhanced rent can again be revised and reduced. The character of land, however, continues to be the same and does not alter according as land is used for one purpose or another. It is fallacious to assume that the tenant can by his action convert all agricultural land into something else. There was no doubt that this land was agricultural to start with. It was shown as Khudkasht in Exh. D -8 when it was leased out to the Respondent. From that time it became occupancy land. It was described as occupancy in Exh. D -121. There is nothing to show that it changed its character in the hands of the mortgagor at any time even though it may have been put to non -agricultural use. The exemption of Section 12 of the Tenancy Act was therefore rightly applied to it and the land was excluded from the mortgage decree.