SITAL RAI Vs. RAM KHELAWAN PANDEY

JUDGEMENT

(1.) This is an appeal by the defendants arising out of a suit brought by a mortgagee for recovery of possession of certain lands and, in the alternative, for recovery of a proportionate amount due.

(2.) It appears that the defendants made a mortgage of occupancy and fixed-rate holdings in the year 1911 for a sum of Rs. 999-15-0 in favour of the plaintiff. The plaintiff's case is that he has been in possession of the occupancy lands all along and is in possession of them even now, but; that as regards the fixed-rate tenancies, he was put in possession but has since been dispossessed. The defence was that the mortgage was void and the plaintiff had no right to seek the assistance of the Court.

(3.) The Court of first instance dismissed the suit on the ground that the mortgage was one transaction and the whole of the mortgage was illegal. It also came to the conclusion that inasmuch as the plaintiff wanted to retain possession over the occupancy lands, he did not come to Court with clean hands and was not entitled to any relief. The suit was accordingly dismissed. On appeal the learned District Judge has taken a contrary view. Relying on the case of Rajendra Prasad v. Ramratan Rai (1917) 39 All. 539, he is of opinion that it was open to the mortgagee to claim relief against the fixed-rate tenancies which were transferable. He has accordingly allowed the appeal and remanded the case for disposal of the other issues.