HIRALAL GAYAPRASAD Vs. SARJOO PRASAD DAYASHANKER

JUDGEMENT

(1.) HIRALAL and Sarjooprasad are first cousins their mothers being sisters. Their grandfather left them by will certain property including a Nazul plot situated in Bilaspur town which has been cultivated as a garden. This plot is now, in accordance with recent settlement instructions, entered as being held in the right of ryot Sarkar. The particular plot in dispute was left to both the parties jointly, and on 12th July 1921, Hiralal sold his half share in it to his cousin Sarjooprasad who on the same day, as he could not pay for it in cash, mortgaged the whole of the plot in Hiralal's favour. The money was to be paid within six years and if not paid there was a condition for sale. Nothing has been paid, and Hiralal sued on the basis of his mortgage in 1936. The claim for a simple money decree was time-barred as the suit was brought more than six years after the date fixed for the payment. The defendant pleaded that Nazul mourusi or ryot Sarkar rights are inalienable, that the mortgage was void ab initio and that the registration of the mortgage deed was obtained by fraud as the Sub-Registrar refused to register the mortgage bond which stated that the property was Nazul and accordingly any reference to Nazul was scored out. Both the Courts below held that the rights of a ryot in Nazul or ryot Sarkar land were not inalienable and that the defendant who had purchased a plot on the very date of the mortgage was not entitled to plead that they were inalienable, and also held that no fraud had been practised on the registration department. The lower appellate Court agreed with the trial Court in dismissing the claim on the ground that any decree given would be inoperative as Section 212(2), C.P. Land Revenue Act, laid down that the right in question could not be sold or foreclosed in execution of a decree. In view of the defendant's conduct, no costs were awarded to him either in the suit or as respondent in the appeal. The plaintiff has now preferred a second appeal.

(2.) IT has been contended on behalf of the appellant that should his claim fail by means of the provisions of the Land Revenue Act, nevertheless he should be given a decree, although sale might not be possible in execution, with the provision that a receiver of the plot should be appointed and the profits paid to him until his claim, which was for Rupees 4521-14-0, should be satisfied. Now, the appointment of a receiver on landed property is confined to the pendency of a suit or an appeal although in exceptional cases, vide the Privy Council decision in Mathusri Umamba Boyi Saiba v. Mathusri Dipamba Boyi Saiba (96) 19 Mad. 120, such direction in a final judgment is permissible. That ease dealt with the exceptional circumstances of female claimants to an estate where it had been found that all were to be supported out of the estate but that individual management by any one of them would waste the estate; that deviation from the ordinary principles cannot have any application here.

(3.) FOR the respondent in this Court it is urged that no rights except the rights in moveables, which the learned Counsel contends means trees and crops growing on the ground, were mortgaged. We cannot for a moment accept this contention. The parties at the time of the mortgage and of the sale were perfectly aware that there could be no out and out transfer of a plot recorded as Nazul and when the last line was added to the effect that the Bagicha excluding Nazul land was mortgaged it cannot mean, as is also faintly contended, that the plot in question was not mortgaged at all; the plain meaning is that all the rights except the land itself were to be mortgaged, that is to say, there was a mortgage of rights corresponding to leasehold rights, i.e., the right of a raiyat in the survey number. It is admitted that this plot with one or two others were not included in the constitution of a raiyatwari village as a number of other plots situated in Bilaspur town were. A survey number, by virtue of Section 2, Sub-section (18), is "any area held by, or intended to be settled with, a raiyat under a separate assessment of land-revenue in a village or land which is the property of the Crown," that is, it includes a survey number in a raiyatwari village and a survey number which is not in a raiyatwari village. We do not consider that the prohibition in Sub-section (2) of Section 212 of the Act in respect of the sale or foreclosure of such in execution of a decree applies to survey numbers which are not situated in a raiyatwari village. The Sub-section reads as follows: "The right of a raiyat in a survey number or in a house-site in the abadi of a raiyatwari village shall not be sold or foreclosed in execution of a decree.