KUER MOHAMMAD ASHRAF ALI KHAN Vs. BEHARI LAL

JUDGEMENT

(1.) These are two appeals against, decrees of the lower Appellate Court confirming decrees of the Court of first instance dismissing the claims of the plaintiffs. The plaintiffs in both the suits were the same persons although the defendants in each suit were different. However, both suits acres out of precisely , similar facts and circumstances and, therefore, they were conveniently dealt with together by the lower Appellate Court. We also propose to dispose of both the appeals in this judgment. The facts relating to both cases can be shortly stated as follows: On January 21, 1918, the defendant in each of the two cases executed usufructuary, mortgages in favour of the plaintiffs pre-decessorin-title, the mortgagor in Appeal No. 627 of 1933 being one Behari Lal and the mortgagor in Appeal No. 1517 of 1933; being one Ram Prasad. On the same date the respective mortgagors executed qabu-liats in favour of the plaintiffs predecessor-in-title whereby they retained possession of the mortgaged properly en payment of a certain sum by way of rent or theka money. On the same date the respective mortgagors executed a third document whereby they charged their equity of redemption in the mortgaged properties to secure the due payment by them of the rent or theka money. The rent having fallen in arrear in both the cases, suits were brought in the Civil Courts by the present plaintiffs who are the successors in title to the original mortgagee to enforce the security bonds executed by the respective mortgagors. Both the lower Courts dismissed the plaintiffs claims, hence the two appeals to this Court.

(2.) Before the two lower Courts a number of defences were taken, but in this Court a number of these pleas have been abandoned. In the first place the learned Subordinate Judge who heard these appeals came to the conclusion that the mortgage-deeds, qabuliats and agreements to secure the rent due under the qabuliats formed one transaction which amounted to a simple mortgage. That being so he held that there was no relationship of landlord and tenant existing and that in fact the suits could not be maintained. The learned Subordinate Judge appears to have relied upon a number of authorities upon this point but it is to be observed that he gives no reasons why he regarded these various transactions as substantially forming one transaction, Dig. that of a simple mortgage. However, it has now been decided by their Lordships of the Privy Council in Mian Faros Shah v. Sohbat Khan , that where documents of this kind are executed in the manner in which they were executed in this case, they do not form one transaction and that it is not open to the parties to give evidence which tends to vary or contradict the terms of the written documents. In our judgment the present cases are entirely covered by the decision of their Lordships of the Privy Council referred to and that being so we are bound to hold that the learned Subordinate Judge was wrong in dismissing the plaintiffs claim on this ground.

(3.) A further point was taken before the learned Subordinate Judge, viz., that the Civil Court had no jurisdiction to hear these suits. It was contended that in order, to enforce the charge it was first necessary to ascertain what rent was due and to obtain a decree for such rent. That being so, it: was argued that the Civil Court had no jurisdiction and that the matter was cognizable only by the Revenue Court, it is true that by reason of Section 216, Agra Tenancy Act, 1926, the provisions of the Act relating to the recovery of rent apply to thekadars and it cannot be argued that a thekadar could come to a Civil Court and claim a decree for arrears of rent. For such a decree he would be bound by the terms of the Agra Tenancy Act to sue in the Revenue Court. It is the respondents contention that this claim which was brought in the Civil Court is in effect a claim for rent, but with that view we cannot agree. A perusal of the plaint and the prayer contained therein makes it clear that this was a claim for the enforcement of a charge and clearly such claims can only be brought in a Civil Court.