RAGHUNATH PRASAD Vs. JWALA PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit for damages for fruit misappropriated by the defendant from a grove and for a permanent injunction restraining the defendant from interfering with the plaintiffs possession of the trees of the grove. On 15th September 1927, the defendant executed a usufructuary mortgage of certain plots of land, which have been held to be grove land, in favour of the plaintiffs. The property was described as being resumed muafi, and it was recorded as sir land. On 20 January 1928, the zamindar brought a suit for the determination of the rent of the mortgagor on the ground that by reason of the transfer of his proprietary rights under the usufructuary mortgage, he had become an exproprietary tenant and his rent should be fixed. Accordingly the revenue Court fixed Rs. 10-10-0, as the rent of the defendants as an exproprietary tenant. Subsequently, a dispute arose between the parties or their lessees for possession and enjoyment of the produce of the grove, and the plaintiffs instituted the present suit.

(2.) The principal defence was that as the mortgagor had become an exproprietary tenant of the land in suit, the trees which formed part of the exproprietary holding could lawfully be retained by the mortgagor notwithstanding the terms of the mortgage deed. The jurisdiction of the civil Court was also challenged, as it was stated that the relation of landlord and tenant exists between the parties. Both the Courts below have decreed the plaintiffs claim and the defendant comes to this Court in second appeal.

(3.) It is clear that under the terms of the mortgage deed itself the mortgagee, namely the plaintiff, is entitled to the usufruct of the grove. It was contemplated in the mortgage deed itself that by reason of the transfer the mortgagor would become an exproprietary tenant, and it was expressly provided that in such an event, if rent were fixed upon the holding of the defendant as an exproprietary tenant, then he would be liable to pay that rent, but the mortgagee was to be entitled to the full use and enjoyment of the grove, to appropriate the produce and to plant new trees. The question is whether the mortgagor is bound by the terms of his own agreement, or whether this agreement is void as contrary to the provisions of the Agra Tenancy Act.