CHULHAN SINGH Vs. MADHO SINGH

JUDGEMENT

(1.) This second appeal arises out of a rent suit, which has been dismissed on the ground that the plaintiffs, being usufructuary mortgagees of the share for which the rent is claimed, have not registered their names under Section 78 of Act VII of 1876. The suit was dismissed by the Munsiff, firstly, on the finding that the plaintiffs are mortgagees and not the had an and secondly, that before the Munsif they had not obtained registration of their names under Section 78 of Act VII of 1870. Fending the appeal to the District Judge they got their names registered and on the authority of numerous cases of this Court with respect to such proceedings, of which the one most in point is the unreported case Second Appeal No. 137 of 1911, whore it was held that where a suit failed by reason of the non-production of the succession certificate in the Court of first instance, the succession certificate might be obtained and tiled in the Appellate Court on the appellant paying the cost of; the previous proceeding. We think that this principle might fairly be applied in this case, and we are of opinion that the decree which is to be made should he drawn by the Munsif in the first Court on the basis of his findings as to the area under paddy and rabi and the area which is nagdi and bhowli respectively and as to the kinds and quantities of crops produced and the selling rates. The defendants will then have a right of appeal upon the plea of payment and the selling rates which have been found in favour of the plaintiffs.

(2.) We also think that the finding of the learned Judge in the Court below as regards the plaintiffs being mortgagees is not sufficient. He says they are zurpeshgidars. That term is quite ambiguous. On the finding of the Munsif it is extremely doubtful as a question of law whether they are mortgagees. The findings that no interest was chargeable and chat a premium merely was paid at the inception of the lease, go far to show that in law it might be considered a lease with premium and not a usufructuary mortgage. This is a question on which the plaintiffs will have a further right of appeal to the learned Judge as well as on other points not dealt with by him in this appeal.

(3.) The judgment and decree of both the lower Courts are set aside and the Munsif will be directed to draw up a decree in favour of the plaintiffs in accordance with his findings, it being admitted that no portion of the claim was barred on the day when the land registration was really taken.