HAKO DITTA Vs. BEG SINGH

JUDGEMENT

(1.) THIS second appeal has been filed by a plaintiff Hako who has failed in both the lower Courts in a suit for possession of 46 'kanals' ana 17 'marlas' of land. The history ot the land is as follows. Sher Singh defendant No. 3 mortgaged the land with possession on the 22nd of June in 1928 with Beg singh and Jowand Singh defendants Nos. 1 and 2 for Rs. 1,4357- but in fact this was only a 'benarni' transaction and the real mortgagee was a money-lender named Khushi Ram who was a non-agriculturist. The plaintiff Hako purchased the rights of the mortgagees on 23-7-1936 and thus entered into possession, in July 1945 Udham Singh defendant No. 4, the son of Sher Singh mortgagor, applied to the Deputy Commissioner under Section 9, Punjab Alienation of Land Act, for redemption of the land on the ground that the mortgage was 'benami' and by his order dated 5-11-1946 the Deputy Commissioner, Mr. K. D. Rogers, held that the real mortgagee was Khushl Ram and that the mortgage must, therefore, be altered under Section 6(1)(A) so as to be one for twenty years in the names of Mulk Raj and Chajju Ram, the sons of Khushi Ram, who had died in the meantime, and at the same time he ordered that since the mortgagees had by that time recovered the amount of the original mortgage debt, under Sections 7(5) and 7(2) of the Act the mortgage should be terminated. From this the order followed that the present appellant Hako was to be ejected and possession given to Udham Singh.

(2.) IN the trial Court and in the lower appellate Coart the plaintiff's case was that the order of the Deputy Commissioner was ultra vires and he strenuously contested the allegation that the mortgage in the first instance was 'benami' in spite of the fact that he himself had admitted it to he so in the proceedings before the Deputy Commissioner. His learned counsei has not now attempted to challenge the fact that the mortgage was 'benami' but has relied on a new aspect of the case which does not appear to have been brought up before or considered by either of the Courts below. By the Punjab Alienation of Land (Second Amendment) Act, 10 of 1938, a new Section 13-A was added to the Act dealing specifically with 'benami' transactions. Sub-section (1) reads: