BALDEO SINGH Vs. CHHAIL BEHARI LAL

JUDGEMENT

(1.) This is a defendant s appeal arising out of a suit for profits against a lambardar, under Section 164 of the Agra Tenancy Act. It appears that the defendant was in possession of some of the khudkasht land in this village and a number of suits for profits were brought against him. The profits of these khudkasht lands were calculated at Rs. 241-7-6 per year. On the 10th of August 1914 the defendant purported to make a usufructuary mortgage of the khudkasht lands in favour of a third party for at sum of Rs. 1,000. On the same date he executed a kabuliyat in favour of the mortgagee agreeing to pay Rs. 100 a year as rent for the ex-proprietary tenancy to which he became entitled in lieu of interests. The Court of first instance, in calculating the profits for the years in dispute, took Rs. 100, the agreed amount, as the profits for these lands. On appeal the District Judge has varied the decree of the Court of first instance and has taken the profits at the former figure, viz., Rs. 241-7-6. The defendant comes up in second appeal and on his behalf the decree of the learned District Judge is challenged.

(2.) When the defendant owned certain khudkasht lands in this village he had a right to make a usufructuary mortgage of those lands. On the making of such a mortgage by the operation of law he became an ex proprietary tenant of the khudkasht lands which he had cultivated for more than twelve years. The law gives him a concession and no one can deprive him of his right to pay only 3/4ths of the rent that is ordinarily payable in respect of non-occupancy holdings of similar lands. In our opinion, therefore, after the execution of the mortgage deed it is not fair to the defendant that he should be called upon to give credit for the sum of Rs. 241-7-6 which had been taken to be the profits of these lands before the mortgage. The rent which he would have had to pay as an ex-proprietary tenant would be 3/4ths of this amount which comes to Rs. 181-6-7 1/2.

(3.) It appears, however, that after the execution of this mortgage deed in the mutation proceedings which followed under Section 35 or 36 of the Land Revenue Act, the Revenue Court accepted Rs. 100 as the rent which had been agreed to be paid to the mortgagee. We may note that the present plaintiff was not a party to this agreement nor was he made a party to the proceeding under Section 35 or 36 of the Act, and it is difficult to see why he should be held bound by it.