RAM KARAN SINGH Vs. RAJA RAM

JUDGEMENT

(1.) In the year 1898 Sheo Dutt Lonia the husband of the defendant Musammat Munia executed a usufructuary mortgage in favour of the plaintiffs ancestor of two plots Nos. 219 and 221 in Mauza Kalyanpur in the Jaunpur District. The mortgagor was occupancy tenant of No. 219 and fixed-rate tenant of No. 221. After her husband's death Miisammat Munia relinquished No. 219 to the zemindar and the mortgagee lost possession of it. The rent of No. 221 fell into arrears. The zemindar got it put up for sale in execution of a decree for those arrears and it has been purchased by the defendants-appellants Ram Karan Singh and Har Karan Singh. The plaintiff-mortgagee brought the present suit, on the basis of Section 68 of the Transfer of Property Act and of a covenant contained in the mortgage for recovery of his mortgage-money by sale of plot No. 221. His suit has been decreed by the Court below and the auction-purchasers appeal.

(2.) Three pleas have been urged before me: 1. That the arrears of rent accrued owing to the default of the mortgagee himself and, therefore, he cannot enforce his mortgage against the purchasers of the plot. 2. That the mortgagee has not relinquished possession of No. 221 and, therefore, he cannot claim to recover any part of his mortgage-money from this plot. In the alternative it is urged that he can only recover a proportionate part of it.

(3.) That because part of the mortgaged property consisted of an occupancy holding the entire mortgage is invalid and unenforceable. 3. The first question is a mixed question of law and fact. The respondent takes a preliminary objection that it is raised for the first time in appeal to this Court. The objection is correct. The plea was not taken in the write statement. It is not to be found in any of the eight issues framed by the learned Munsif. There is no discussion of it in the judgment of the Court below. Under these circumstances this Court is not in a position to say whether the arrears of rent were due to -any default of the mortgagee or not, and the respondent is fully entitled under the rulings of this Court and of the Privy Council to object to the point being taken for the first time in second appeal.