VISHWANATH JANARDHAN NAIK Vs. BAPU JAGANNATH KUNBI

JUDGEMENT

(1.) In 1907 one Jagannath mortgaged certain property to persons who are now represented by the appellant Vishwanath. The mortgaged property consisted of an eight pie share in Mauza Narsala in the HinganghatTashil of the Wardha District, khudkasht field No. 39/100, area 5'86 acres, and other fields in that village, and two kothas. The mortgagees brought civil suit No. 10 of 1920 in the Court of the Subordinate Judge, Wardha, to enforce their mortgage, Jagannath was dead by then and the defendants included his minor son Bapu, who is the respondent in this Court, and Sambhu, son of Zitba, who was impleaded on the allegation that the malguzari share of Narsala had been leased to him for 12 years from 20th December 1918. At the settlement of 1910 -11 khudkasht field No. 39/100 had been declared sir and renumbered as 39/3 with an area 6'93 acres. No reference to that fact however was made in the suit, and the preliminary decree for foreclosure was eventually passed on 24th August 1922 foreclosing the eight pie share in Mauza Narsala, khudkasht field No. 39/100, area 5.86 acres and the two kothas. This decree was made final on 6th September 1924. Just previous to that Vishwanath had put in a petition asking that the final decree should show the new No. 39/3 in place of the old No. 39/100, but even in that petition there was no reference to the fact that the field had been declared sir at the recent settlement. Apparently copies of revenue papers must have been produced to show how the field had been renumbered; and without notice to the defendants, in the final degree, below khudkasht field No. 39 -100, the following entry was inserted: Corresponding No. new 39/3, area 6'93, jama Rs. 10 -12 -0 (which was the same as the old jama), right sir.

(2.) VISHWANATH took out execution proceedings to obtain possession, and an objection was filed by Zitba, claiming that he had taken a lease of field No. 39/3 for 12 years from 11th December 1918 and was entitled to remain in possession until his lease expired as he had not been made a party to the suit on the mortgage. It does not appear whether this Zitba was the father of Sambhu who was a defendant in the mortgage suit or whether this lease was the same as the lease of 12 years said to have been granted to Sambhu with effect from 20th December 1918. The objection was allowed and it was ordered that Zitba should retain possession until the expiry of his lease in December 1930. No notice of these proceedings was given to Bapu. On the expiry of this lease Vishwanath applied for possession, and Bapu took the plea that Under Section 49, C.P. Tenancy Act, he had become the occupancy tenant of this field. The lower Court upheld this contention, and against that decision Vishwanath is now appealing.

(3.) IF no sanction has ever been given then this qualification cannot apply. Mr. Bobde has urged that this section was intended only to apply to cases in which it was possible for the proprietor to apply for sanction. This would mean that the qualification is in effect save where sanction has been given or could not have been given, and I do not think that it is possible to read these words into the clear words of the section. I am therefore of opinion that Rajeshwar v. Mt. Rukhma 1933 Nag 104 was correctly decided.