SETH NEMI CHAND Vs. GANESH

JUDGEMENT

(1.) The facts of the case referred are very simple. The defendant by usufructuary mortgages mortgaged to the plaintiff his proprietary rights in a holding. Since the date of the mortgage, that is to say, for nine years before the institution of the suit, the defendant has continued in occupation of certain lands comprised in the holding which were prior to the mortgages in his own cultivation. The present suit was instituted to recover possession of inter alia this land. Both the Courts below gave the plaintiff a decree subject to the occupancy rights of the defendant in the land in his own cultivation. Section 41 of Regulation II of 1877 of the Ajmere Code is as follows Any person who may have, whether before or after the passing of this Regulation, lost or parted with his/proprietary rights in any holding, either, temporarily or permanently and has since continued in occupation of any of the lands comprised in such holding which, as proprietor, he retained under his own cultivation, shall have a right of occupancy in such lands, at a rent five annas four pies in the rupee less than the prevailing rate payable by tenants at will, for lands of similar quality and with similar advantages.

(2.) Such persons are hereinafter called exproprietary tenants.

(3.) Any agreement executed, whether before or after the passing of this Regulation by an ex-proprietary tenant to pay a higher rate of rent than that prescribed by this Section, shall be void."