BODDANA RAMUDU Vs. SASAPU SANYASI NAIDU

JUDGEMENT

(1.) This second appeal arises out of a suit instituted by the plaintiffs as purchasers of the equity of redemption of two mortgages dated 22nd June, 1914 and 12 November, 1918. Tlie mortgage of 22nd June, 1914, is usufructuary and that of 12 November, 1918, is simple. The plaintiffs sued for redemption of. the mortgages and for recovery of possession of the lands mortgaged thereunder. The right to redeem is not denied. The amount due and payable under the mortgages is not disputed. But the point in controversy between the parties is whether the plaintiffs are entitled to recover vacant possession of the lands or are only entitled to the melvaram interest therein. The contention of the defendants is that on the date of the mortgage in 1914 they were cultivating tenants in possession of the lands and had occupancy rights therein and that what was mortgaged was only the melvaram interest. The plaintiffs said in answer that under the terms of the mortgage what was mortgaged was the entire land and not merely the melvaram interest and that the tenants had no occupancy rights but were only tenants at will and that even assuming they had occupancy rights they were precluded from asserting such rights. So the substantial questions which fell to be decided were (1) whether the defendants had occupancy rights on the date of the usufructuary mortgage in 1914 and (2) assuming they had occupancy rights whether they are estopped from contending that they had such rights. The learned District Munsif of Parvatipur who tried the case was of the opinion that as the lands were dharrmilla inam lands and the defendants father was a cultivating tenant on the date of the mortgage the defendants were( entitled to loccupancy rights and they were not estopped from resisting the plaintiffs right to claim possession. On appeal the learned Subordinate Judge held against the defendants on both the points and gave a decree in favour of the plaintiffs as prayed for. It is against this decision that this second appeal has been preferred by the defendants. It seems to me that on both the points the view of the learned Judge is wrong.

(2.) Ex. IV (a) which is the deed of mortgage dated 22nd June, 1914, Ex. IV which is dated 12 November, 1918, and two other deeds of mortgage which were filed by the plaintiffs themselves (Exs. B and C) relating to the suit land describe the nature of the land as dharmilla inam. Ex. IV (a) clearly states that the land was under the cultivation of the defendants father on that date; and as the learned Subordinate Judge observes it was conceded before him that the defendants were in possession as tenants on the date of the mortgage. The recitals are prima facie evidence as regards the nature of the tenure of the land and the learned District Munsif who came to the conclusion on those recitals that it was dharmilla inam land was perfectly warranted in doing so. What Mr. Jagannatha Das contends is that those recitals ought not to be taken as evidence against his clients because on the date of the document the executant (the plaintiffs predecessor in title) was a minor and those recitals were made by the guardian and that an opportunity should be given to his clients for placing more evidence on record in regard to the nature of the tenure. The question whether the defendants had occupancy rights was specifically put in issue in issue 4. The plaintiffs themselves1 filed Ex. C which contain recitals as to the land being dharmilla inam and Exs. IV and IV(a) under which the mortgages were created describe the land as dharmilla inam. As I have already observed the recitals in the deeds would be prima facie evidence against the plaintiffs. The fact that the recitals were made by the guardian is not a reason for not taking them as prima facie evidence unless it can be shown that those recitals were made under a mistake or misapprehension of the nature of the tenure in regard to which the burden would certainly be on the plaintiffs. In the face of these recitals it was obviously the duty of the plaintiffs to have put before the Court other evidence to show that these recitals ought not to be acted upon. The absence of any such evidence coupled with the fact of long possession by the defendants certainly warrants the finding of the District Munsif. Once it is found that the land was dharmilla inam there can be no question of the defendants having occupancy rights as settled by a Full Bench of this Court in Brqhmayya v. Achiraju and affirmed by the Privy Council in Narayanaraju V/s. Suryanarayudu2. This is not disputed by Mr. Jagannatha Das. I am therefore of the opinion that the learned Subordinate Judge ought not to have brushed aside the recitals in the documents and should have given effect to them. I set aside the finding of the learned Subordinate Judge and hold that the lands are dharmilla inam lands and that the defendants father was entitled to occupancy rights on the dates of the mortgages in question.

(3.) The next question is whether the defendants are estopped from denying the right of the landlord to claim possession of the land. Mr. Jagannatha Das contends that under the deed of mortgage Ex. IV (a) the defendant's father undertook to deliver possession of the land at the end of the period stipulated for in the deed, that the mortgage proceeds on the footing that he had no occupancy right therein and that the plaintiff's predecessor in title was entitled to get possession of the land at the end of the term. There can be no doubt that on the date of the mortgage Ex. IV(a) neither the plaintiffs predecessor in title nor the defendants father was aware of their respective rights. The plaintiffs predecessor in title thought that he was entitled to possession and the defendants father thought that he had no occupancy right or at any rate was not conscious of it and he believed he was bound to deliver possession at the end of the term. The question is not what the plaintiffs predecessor in 1 title thought or what the defendants father thought but if in Jaw the tenant had occupancy right and he was under a statutory incapacity to enter into any contract to give up his occupancy right and if the landlord wants to claim possession of the land free of that right, would the tenant be estopped from denying the right of the landlord to claim possession? The policy of the Legislature as enacted in Section 187 of the Act is to protect the tenant against himself and prevent him from entering into any contract by which he can deprive himself of the protection afforded by the statute. Except by voluntary surrender under Section 143 of the Estates Land Act or by adopting the procedure prescribed in Section 151 of the Act a tenant cannot be deprived of possession of land wherein he has occupancy right. The contention of Mr. Jagannatha Das is that Section 187 (g) would not be applicable to the case of a mortgage but must be strictly applied only to cases where the landlord seeks to eject the tenant from possession of the land. It seems to me that so to construe the section would make the provision illusory. The landlord and the tenant have only to resort to the device of having a mortgage executed by which at the end of a particular period the tenant undertakes to give up possession to render the statute futile. In this connection I would like to refer to the observations of Lindley, M.R., in Bateman (Lady) V/s. Faber (1898) 1 Ch. 144, where the question was whether it was competent for a married woman who was entitled to property for her separate use without power of anticipation to get rid of the restraint even by telling an untruth. The observations are to this effect: A married woman cannot by hook or by crook - by any device, even by her own fraud (the cases go to that length) - deprive herself of the protection which the restraint on "anticipation throws around her. About the policies of the law I will say nothing, but it has been sanctioned by the Married Women's Property Act.