PARMANAND PANDIT Vs. MATA DIN RAI

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit for redemption of a mortgage, dated the 18 of February, 1878, executed by the predecessors-in-title of the plaintiffs in favour of the ancestors of the defendants. The mortgage was for a sum of Rs. 160 and was usufructuary. Among other conditions, it is provided that the mortgagees would be entitled to appropriate the profits in lieu of interest and that at the time of redemption, there would be no accounting between the parties. There was a further provision that if in Jeth of any year the principal sum was paid, then the property would be redeemed. There was a clause that even after redemption the mortgagees would not be ejected but they would hold on the land as lessees on payment of annas 8 per bigha annually. There was a further provision that the mortgagees would be entitled either to cultivate the land or to plant a grove on it. The mortgagees, some time after the mortgage, it is not quite clear when but at least more than 25 years before the suit, did plant a grove consisting of numerous fruit trees like mangoes, jamun, mahua, guava, etc., as well as a large number of shisham trees.

(2.) The plaintiffs claimed that they were entitled to actual possession on payment of the principal sum only. The defendants contested the claim and pleaded that even after redemption they were entitled to hold on payment of the fixed rent. They further claimed that if possession was to he given to the plaintiffs, they must get full compensation for the grove which stands on the mortgaged land.

(3.) The Court of first instance was of opinion that in spite of the clause entitling the mortgagees to remain in possession as lessees, the plaintiffs were entitled to actual possession of the land but that they must pay compensation. It, however, assessed-the compensation on the actual costs incurred which it fixed at Rs. 100. On appeal the learned District Judge agreed with the view of the first Court that the plaintiffs were entitled to actual possession of the land but thought that the compensation awarded was not fair. The value of the grove, in his opinion, ought to have been taken into account. He accordingly remanded the case, and, after the findings were returned, he fixed the compensation at Rs. 1,800.