JYOTILAL MONDAL Vs. BIRUBALA DASI

JUDGEMENT

(1.) This rule has been obtained by the mortgagee and raises a difficult point in connexion with an application under Section 26G, Ben. Ten. Act. At the time of the execution of the mortgage, the land was producing nothing. The intention of the mortgagee was to build and there was a clause in the deed to the effect that the mortgagor would only get back possession of the land on paying a fair price for any buildings which might be constructed by the mortgagee. In view of the provisions of Section 26G (5) the debt has now been discharged. Opposite party 1 accordingly filed an application under the sub-section to recover possession. The Munsif neither allowed nor rejected the application in direct terms. He held that the debt was discharged but put the mortgagor on terms that she was to pay Rs. 1100, at which he assessed the value of the structures, as a condition precedent to being put into possession. Both sides appealed. The petitioner was dissatisfied with the Munsif's valuation of the structures but now of course accepts it. The Subordinate Judge held that the petitioner had no right to remain in possession and allowed the application. Mr. Ghose raised two preliminary points in showing cause against the rule. In the first place, he contended that the petitioner should have appealed in stead of filing this application in revision. In view of the peculiar terms of the order made by the Munsif, which neither allowed nor rejected the application, it is very difficult to say whether there was an appeal or not. I myself should be inclined to hold that the opposite party's appeal in the lower Court was incompetent. But inasmuch as the only point now taken relates to the jurisdiction of the Munsif to make an order, a point which can be taken either in appeal or revision, this is a matter of only academic interest.

(2.) Then in the second place, Mr. Ghose contended that a mortgagor cannot be put on terms by an order allowing an application under this section. I have no doubt that on a strict interpretation of the section this contention is correct. The learned Munsif, holding that the opposite party was not entitled to immediate possession, should have directed her to convert the application into a plaint or, if she had not sufficient funds to pay into Court what she considererd to be a fair valuation for the structures, left it to her to institute an independent suit. He ought not to have made an order allowing her to recover possession. Similarly, the learned Subordinate Judge, taking the view which he did, was right to relegate the petitioner to a separate suit to recover the value of the structures.

(3.) The following questions accordingly arise for consideration now: (1) Has the petitioner any other right than that of a mortgagee entitling him to remain in possession? (2) Does the agreement amount to a clog on the equity of redemption? (3) If so, is the opposite party entitled to an order for immediate delivery of possession? Now that the mortgage is extinguished it is not suggested that the petitioner has any title to the property. Mr. Das however contended that in virtue of the agreement he has an equitable right to remain in possession until he is paid for the structures. I accept this position. As the property was not in a position to yield any profits at the time, it is quite clear that the petitioner would not have advanced the money, if he had not been in a position to build. It is equally clear that he would not have been willing to lay out his money in making structures unless he could feel assured that he would be able to recover their value without being compelled to sue. In these circumstances, as he was (induced to lay out money in structures, which would enure to the benefit of the opposite party, on the inducement held out in this agreement, he has an equitable claim to remain in possession in terms thereof.