WALZI CHHATRI Vs. GANPAT SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff who has been refused a foreclosure decree on the foot of a mortgage executed by the respondent, an occupancy tenant, and involves the consideration of a number of Secs.of the Central Provinces Tenancy Act (Act 11 of 1898). The appeal was in the first instance heard by my learned brother sitting singly, but as he felt doubts as to the correctness of the decision of Rowland J., in Parmeswar Dayal V/s. Walji Chhatri A.I.R. 1941 Pat. 352 he referred the case to be heard by a Division Bench. The facts necessary to understand the nature of the controversy are these: The land formerly belonged to one Bhimsen Panda from whom the defendant purchased it on 28 February 1923 for a sum of Rs. 75 by a sale deed (Ex.A). That sale deed recited that that Bhimsen sold the .31 acre of land (Dewar settlement plot No. 939) out of his raiyati holding. In the year 192S what is known as Hamidt Settlement took place, and in the khatian (Ex. C) which was finally published in that year the defendant was recorded as an occupancy raiyat in respect of this .31 acre of land now bearing plots Nos. 2426 and 2427. It should be stated here that on the back of the sale deed (Ex. A) there is an endorsement (EX. 3) dated January 1924 to the effect that the Court of Wards, who is the landlord of the holding, waived its claim to recovery of possession by reason of the transfer on receipt of Rs. 25 as compensation and also the rent of the land which was originally one anna has been enhanced to Rs. 2 besides 1 anna 6 pies as cess.

(2.) On 16 April 1934 the plaintiff advanced a sum of Rs. 550 to the defendant on the foot of a mortgage bond on the security of these lands and after the due date he instituted the suit on 13 September 1987 for foreclosure. The defence to the action was that the full amount of Rs. 550 was not advanced by the plaintiff but only a sum of Rs. 275 and further that this sum has been paid off to the plaintiff by means of some adjustment.

(3.) The Courts below have concurrently come to the conclusion that this defence has not been established and have passed a decree for a sum of Rs. 770 in favour of the plaintiff, but they have refused to pass a foreclosure decree on the ground that Section 46, Central Provinces Tenancy Act, (hereinafter to be called the Act) operates as a bar to grant of this relief to the plaintiff; hence the appeal to this Court. The learned Munsif held that plots Nos. 2426 and 2427 constitute the rayati holding of the defendant. He refers to the evidence of Shraddhakar (P.W. 3) that formerly the land was raiyati and the defendant had constructed a houso on a portion thereof but the remaining portion is bari and paddy is grown there occasionally. He also refers to some receipts in which it is stated that rent was realised by the landlord in respect of the defendant's raiyati land. He also refers to the evidence of the two witnesses on behalf of the defendant who proved that in the bari portion paddy is grown by the defendant.