RAM PRASAD SINGH Vs. NEPAL SINGH

JUDGEMENT

(1.) THIS was a suit by which the plaintiff sought recovery of possession as the usufructuary mortgagee of certain plots mortgaged to him under a deed of November 12, 1914. The mortgage was effected by a Hindu widow of the name of Mt. Gaura, but it has been found as a fact that she was the absolute owner of the property mortgaged. She purported to mortgage with possession three specified plots of land. She put the plaintiff into possession, and he remained in possession for six years. He neither received any rent from Mt. Gaura and still less did he pay any rent to her. On the lady's death the defendants, who are her heirs, being the nearest reversioners of her late husband, succeeded in ejecting the plaintiff. Hence the present suit. It was dismissed by the first Court, but a decree for recovery of possession was given by the learned Subordinate Judge in a carefully reasoned judgment with which we find ourselves in substantial agreement. A learned Judge of this Court in second appeal has reversed that decision and restored the decree of the first Court on the strength of certain reported cases referred to in the judgment now under appeal, dealing with the rights of the mortgagee in respect of ex-proprietary holding which has come into existence from the date of the mortgage by operation of law. There has been quoted to us in argument the case of Tolai Misir V/s. Muneshar Koeri A.I.R. 1924 All. 737, which is substantially on all fours with the case now before us and is entirely in the plaintiff's favour. With regard to the rulings relied upon by the learned Judge of this Court in the present case, we are content to say that they are all distinguishable on the facts. We do not desire to stand committed to the opinion that an ex-proprietary tenancy in favour of Mt. Gaura necessarily came into existence from the date of the mortgage in the present case; but if it did, it was certainly surrendered by her to the only person who could be treated as the "landholder," supposing an ex-proprietary tenancy to have come into existence, that is, the plaintiff-mortgagee. Moreover, if any ex-proprietary tenancy did continue up to the date of Mt. Gaura's death, it certainly did not devolve on the present defendants (vide Section 22 of the Local Tenancy Act), and it must be held to have escheated in favour of the landholder, that is to say, in favour of the present plaintiff. We have no doubt that in this case the lower Appellate Court was right in holding that the plaintiff was entitled to succeed in his claim for possession. We allow this appeal and, setting aside the decree of the learned single Judge of this Court, restore that of the lower Appellate Court. The plaintiff is entitled to his costs of both hearings in this Court.