IRSHAD MUHAMMAD KHAN Vs. JWALA PRASAD

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for recovery of arrears of revenue under Section 160 of the Tenancy Act. The plaintiff was a usufructuary mortgagee of the defendant's share under two mortgages of the 14 June 1913 and the 12 December 1913 respectively. The defendant made a simple mortgage of his property in the year 1324 and the staple mortgagee paid up the usufructuary mortgage of the plaintiff dated, the 12 of December 1913. The mortgage of the 14 of June 1913 was not redeemed. The plaintiff's name continued, to be recorded as mortgagee notwithstanding the fact that one of the mortgages had been redeemed. He had to pay the Government revenue for the years 1324 and 1325 Fasli. He now sues, for recovery of the proportionate amount of the money which he had to pay on account of that share of the defendant which had already been redeemed, the defence was that the plaintiff was in possession of the whole of the mortgaged property and the suit, therefore, did not lie. The first Court came to the conclusion that the plaintiff's name continued to be recorded as mortgagee and, further, that the plaintiff was in possession and dismissed the plaintiff's claim. The learned Judge of the Appellate Court does admit that the plaintiff's name is still recorded as mortgagee notwithstanding the fact that one of his mortgages had been redeemed and then assumes that the plaintiff was not in possession of the property redeemed and gives him a decree for the Government revenue which he had paid on account of that share of the defendant which had been redeemed. It is contended before me, on the strength of the case of Durga Parshad V/s. Hajari Singh 11 Ind. Cas. 116 : 33 A. 799 : 81 A.L.J. 1025, that the name of the plaintiff being recorded in the revenue papers as mortgagee, the learned Judge of the lower Appellate Court was not competent to go behind this entry and to find that, although the name of the plaintiff was so recorded he was not actually the mortgagee in possession. THIS argument seems to have considerable force. THIS view of mine is supported by the case of Ahmad Said Khan V/s. Mast Ullah Khan 13 Ind. Cas. 975 : 34 A. 250 : 9 A.L.J. 152, where this Court held that, where a person's name was entered as a lessee the Revenue Court was not competent to go behind the entry and to find that he was not a lessee. In my opinion, the decree of the first Court was right and. should not have been disturbed. I allow the appeal, set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs in all Courts including in this Court fees on the higher scale.