PYARE LAL Vs. RAM SARUP

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit brought for the recovery of Rupees 3321-4-0 on account of compensation for use and occupation of certain zamindari property for a period of three years with future interest. The facts that have given rise to this appeal have not been disputed. It appears that the defendant-respondent Ram Sarup executed a usufructuary mortgage in favour of the plaintiff-appellant on 2 June, 1927 for a consideration of Rs. 9600. By a kabuliyat of even date the mortgagor obtained a lease of the mortgaged property on payment of a certain sum of money payable half-yearly. On 18 December 1931, another usufructuary mortgage was executed by the defendant in favour of the plaintiff for Rs. 6500 "with respect to another property. On the same date the defendant executed a kabuliyat in favour of the plaintiff and agreed to pay a certain sum of money half-yearly. No formal lease however was executed by the mortgagee in favour of the mortgagor. On 31 May 1936 the mortgagor made an application under Section 4, Encumbered Estates Act, which in due course was forwarded to the Special Judge. The mortgagee filed a written statement and claimed compensation up to the date of the application with respect to the money due to him under the two kabuliyats. The present suit was instituted with respect to three years, that is, Rabi 1344 Fasli to Kharif 1347 Fasli. The suit was contested inter alia on the ground that it was not maintainable in the civil Court and that it was barred under Section 7, Encumbered Estates Act. The Courts below dismissed the suit. It is manifest that no suit for the recovery of theka money could have been filed in the revenue Court because no lease was executed by the mortgagee in favour of the mortgagor. Section 200, Agra Tenancy Act of 1926, which was in force at the time of the transaction provided that the theka could be made only by a written instrument executed by the landlord. THIS plea therefore had no force. The next point which has been pressed by learned Counsel for the defendant and which found favour with the Court below was that the suit was barred under Section 7, Encumbered Estates Act. Section 7(b) is limited in its operation to debts that were incurred before the passing of the order under Section 6. It is not disputed that the present claim relates to the period after the filing of the application. The lower appellate Court came to the conclusion that the suit was barred inasmuch as a claim for pendente lite interest should have been made by the plaintiff in the Court of the Special Judge. The Court below was of the opinion that in effect the deeds executed by the mortgagor in favour of the mortgagee were in the nature of simple mortgages and that being so the mortgagee was entitled to claim pendente lite interest from the Court of the Special Judge and that Court had jurisdiction to grant that interest to the plaintiff. In our opinion, the documents in suit cannot be described as simple mortgages for the simple reason that they are usufructuary mortgages. Upon the mere fact that a kabuliyat was executed immediately after the execution of the mortgage, it is not possible to hold that the usufructuary mortgage was converted into a simple mortgage. We must separate the two transactions. The first transaction was of a usufructuary mortgage. By that document the mortgagee was entitled to obtain possession of the mortgaged property. As usufructuary mortgagee it was open to him to execute a lease in favour of any one he chose. In this case the mortgagee allowed the mortgagor to continue in possession upon certain terms which were embodied in the kabuliyats executed by the mortgagor. If we treat the two transactions separately, it must be held that the plaintiff continued to be the usufructuary mortgagee and the defendant was in possession of the mortgaged properties as lessee and not as mortgagor. As no written lease was executed by the mortgagor the relation of lessor and lessee was not brought into existence. Nonetheless, the possession of the mortgagor was permissive and he is bound by the terms embodied in the kabuliyats. In Sheo Karan V/s. Parbhu Narain ( 07) 31 All. 276 (F.B.) a certain person entered into possession of property executing a registered kabuliyat and paid rent for sometime, later he stopped paying rent. The plaintiff brought a suit for recovery of the arrears. It was held that in the absence of a lease there was no contract of tenancy and rent could not be recovered by suit, but the suit might be treated as one for use and occupation of the land and in view of the fact that the defendants entered into and continued in possession they could not be heard to say that they were not liable for use and occupation. The position is more or less the same in the present case, the defendant remained in use and occupation of the land with the permission of the plaintiff ever since the execution of the mortgages. They obtained large sums of money on the security of the property in suit which according to the terms of the mortgage deed should have been in possession of the mortgagee. It was with the consent and permission of the mortgagee that the defendant enjoyed the usufruct of the mortgaged properties. He must therefore pay whatever is due under the kabuliyat as compensation for the use and occupation of the land. In our judgment there is no provision of the Encumbered Estates Act barring a suit of this description. The suit therefore must be decreed. The plaintiff has appended a statement at the foot of the plaint giving an account of the money due under the kabuliyats. The sum claimed was agreed upon by the defendants as evidenced by the kabuliyats. It was not seriously contested in the trial Court. In the circumstances we think that the suit for recovery of Rs. 3321-4-0 should be decreed with costs in all the Courts. Future interest at the rate of 3 per cent, per annum is allowed.