GOPINATHA CHOWDHARI Vs. KRISTNO CHOWDHARI

JUDGEMENT

(1.) This is an appeal against the order of remand, by the Additional Subordinate Judge of Berhampore in a suit brought by the respondent plaintiff, for the recovery of possession of the suit land, from the 1 defendant, who is now in possession. The land admittedly belongs to one Sadhuvani. The plaintiff claims from her, under the deed, Ex. A of 1909, the constitution of which is one of the questions argued before us. The 1 defendant claims by a lease, Ex. II, dated 1917, from the same lady, Sadhuvani. The District Munsif held that the plaintiff had no right to possession at all, under Ex. A, and without further considering the case, dismissed his suit. On appeal the Subordinate Judge has sent the case, down for trial on the merits. He is apparently of opinion that the document is an anamolous mortgage and that its terms are ambiguous and that further extraneous evidence should be adduced to explain its terms. The respondent before us has not attempted to support this view that there is anything ambiguous and that extraneous evidence should be allowed to explain its terms. We are of the same opinion. We think that the order of the Subordinate Judge, that extraneous evidence should be allowed is not correct. Ex. A says: Having given to you the land described in paragraph 3 for cultivation, for an equal share, for a period of three years, I have taken a loan of Rs. 750.

(2.) It then sets out the way in which Rs. 750 has been accounted for. It then sets out further: This amount shall bear interest, at the rate of Rs. 10 per cent per year, and the interest of each year shall be added on, to the principal amount, and the same accumulated. You shall obtain payment of the principal and interest by means of sale of the mortgaged property. As regards the rajabhagam paddy, etc., you shall be giving the rajabhagam paddy, at the rajabhagam ratesIf the rajabhagam paddy for any year is not delivered in that year, the above mentioned amount, namely, the mortgage amount, shall not bear interest. 6. And it contains a further covenant that "in that event the mortgagee shall realize the money due to him, by sale of a portion, or sufficient part of the mortgaged land and leave the remaining lands to the mortgagor." The document is certainly in its terms, neither a simple mortgage, nor a usufructuary mortgage. It is not a simple mortgage, as possession of the property has been given to the mortgagee; and it is not a usufructuary mortgage because there is no provision that any portion of the usufruct should be taken towards the principal, or the interest on the mortgage. It is, we think, an anomalous mortgage and we should decide the rights of the parties under it, according to its terms under Section 98 of the Transfer of Property Act. It is suggested that this is really a lease, for a period of three years. We are unable to accede to that suggestion, as it has got the necessary incidents of a mortgage. There is the mortgage, money, with the provision for interest on it; there is a provision, for the sale of the property, for realizing the mortgage money and there is a provision made also for possession of the property, being given to the mortgagee, for a fixed period. Under the document, we have come to the conclusion, that the respondent-mortgagee has only a right to keep possession of the property, for a period of three years fixed in the deed; and after the completion of the period of three years, the covenant says : "You shall obtain payment of the principal and interest, by means of sale of the mortgaged property." That is he can sell up the property and realize the money. There is the further covenant that if the rajabhagam paddy is not paid in any year, that is, even within three years, the mortgage money shall become payable and shall be realized by sale of the property, within that period itself, though it will not carry interest for that year. In our view, under the document itself, the plaintiff cannot be said to have any further right to possession of the property and his right to sell the property, for realizing his money within three years, has long ago expired, as the mortgage is of 1909, But it has been alleged that though three years have expired, the mortgagee has continued to be in possession of this property, for several years, after that, paying rajabhagam to the owner of the land, the mortgagor, and that the same had been received by the owner, Sadhuvani. That, we think, would have created a right in the plaintiff, in the nature of an implied tenancy; as this is agricultural land, the tenancy will be a yearly one. Till that tenancy is properly and legally put an end to, the plaintiff would certainly have a right of tenancy, which he could enforce in this suit. The question whether the mortgagee continued in possession, after the expiry of the three years, and did pay rajabhagam to the mortgagor, and whether the mortgagor did receive that rajabhagam, has not been dealt with by the Subordinate Judge. We must therefore call for a finding from him on this question. If the Subordinate Judge finds that a tenancy has been so created, he will also consider the question, whether that tenancy has been properly determined, before the date of the suit, as there is a plea on the defendant's side that by a notice to quit, the tenancy has been so determined. The finding, on these two points, will be returned, on the evidence on record. If the Subordinate Judge finds in favour of the plaintiff, on the above questions, he would also return a finding upon the third issue in the case and the parties will be allowed to adduce fresh evidence on that issue, as it does not seem to have been tried by the District Munsif. The finding will be returned in two months, from the date of the receipt of this order and ten days for objections. 7. In compliance with this order the findings submitted by the Subordinate Judge were as follows: 1. In obedience to the remand order, issued by the High Court, on 4th December, 1923, the following findings are submitted. 2. The issues framed by the High Court and sent down to this Court for recording findings are: (1) Did the mortgagee continue in possession of the suit land after the expiry of the three years arid pay rajabhagam to the mortgagor and did the mortgagor receive that rajabhagam? and (2) If it is found that an implied tenancy has been so created, was the tenancy properly determined, before the date of suit? (3) To what damages, if any, is the plaintiff entitled?

(3.) 1 Issue. - Sadhuvani who was the mortgagor under Ex. A, swore as P.W. 3, that the plaintiff continued in possession of the suit land after the expiry of the lease on 3 July, 1912, and was in possession even when she gave a lease to the 1 defendant on 10 May, 1917, (Ex. II). She further stated that the plaintiff was paying rajabhagam to her, in respect of the suit land, from 1912 until he was dispossessed of the land by the 1 defendant in December 1918. P. W. 1 also stated that the plaintiff was paying rajabhagam, on the suit land, to Sadhuvani, until he was dispossessed from the land. This witness was a prior mortgagee of the suit land, from Sadhuvani. The defendants did not adduce any rebutting evidence on this point. I believe the evidence of" P.W s. 1 and 3 and find the 1st issue in the affirmative.