RAJWANTI KUNWARI Vs. DOMAN SINGH

JUDGEMENT

(1.) THE plaintiff in this case obtained from the father of the defendant No.3. mortgage-deeds, on June the 12th, 1903, July the 2nd, 1905, and June the 14th, 1906, purporting to mortgage with possession certain tenant holdings. THE holdings in question were occupancy holdings the transfer of which by way of mortgage is prohibited by law. THE plaintiff, however, obtained possession under the said mortgages. He now comes into Court alleging that since the death of the original mortgagor his right to possession has been challenged, by the defendant and has been doubted in the Revenue Courts.

(2.) THE plaint as drafted avoids any express admission that the plaintiff has been dispossessed. THE relief sought is described as a decree for maintenance of possession and there is an alternative prayer that if the Court considers the plaintiff is dispossessed in any way, he might be put in possession. As a further alternative relief the plaintiff also sought recovery of the principal and interest due under the bonds in question. THE Court of first instance fixed an issue as to whether the plaintiff was in possession or not and found that issue against him. On other points that Court found in favour of the plaintiff and gave him a decree for recovery of possession over the plots of land specified in the plaint. THE learned District Judge on first appeal held that the decree of the first Court as passed could not be maintained, and he has given the plaintiff a decree for the principal of the debt stated in the three bonds with an order that in the event of the defendant s failing to pay this money within three months from the date of the decree, the plaintiff will be put back in possession of the property specified below, that is to say, of the plots of land constituting the occupancy holdings in question. THE learned District Judge purports to follow the decision of this Court in Bahoran Upadhya, v. Vttamgir 12. Ind. Cas. 112 : 8 A.L.J. 931 : 33 A. 779, but he has overlooked the passage at the bottom of page 782 of the report in which the learned Judges point out that a case of a mortgagee under similar circumstances seeking to recover possession from the mortgagor is different. THEre is, as a matter of fact, a great deal of authority the other way. I expressed my own opinion in a case practically on all fours with the present case, Ram Partap Rai v. Ram Phal Teli 18 Ind. Cas. 9 and I see that in a very recent unreported case, that of Bhmgwan Rai v. Ram Sobhag Rai (Second Appeal No. 146 of 1914, decided on March the 6th, 1914), the appeal of a plaintiff suing to recover possession under circumstances practically on all fours with those of the present case was dismissed by a Bench of this Court, affirming the decision of the lower Appeallate Court dismissing the suit. On behalf of the respondent in the present case it has been contended that there is no finding by the lower Appellate Court on the question of present possession. THEre is nothing on the record to show that the learned District Judges was asked to re-consider the finding of the first Court on this point. It was open to the plaintiff to have done this under the provisions of Order XLI, rale 22, Civil Procedure Code. As a matter of fact the form of the decree passed by the lower Appellate Court shows that the finding of the first Court on the question of present possession was accepted and endorsed. I am satisfied that the decree of the learned District Judge in this case cannot be sustained. Such a decree would virtually nullify the express provisions of the law prohibiting the transfer of occupancy rights. I accept this appeal and setting: aside the decrees of both the Courts below I dismiss the plaintiff s claim with costs throughout.