MT SUKHIA Vs. PTKIRPA RAM

JUDGEMENT

(1.) This is an application in revision under Section 115, Civil P. C., arising out of an application under Section 12, Agriculturists Relief Act, for the redemption of a usufructuary mortgage granted by one Bhaggu on 17 September 1902. The property mortgaged consisted of some occupancy tenancy and was for a sum of Rs. 395. Plaintiff 1 is the daughter and plaintiffs 2 and 3 are the daughter's sons of the mortgagor. The mortgagor died some time between the years 1920 to 1922. The present suit was brought by means of an application under Section 12, Agriculturists Relief, Act.

(2.) The defence in the main was that plaintiff 1 was no heir under Act 2 of 1901 which must govern the rights of the parties, and plaintiffs 2 and 3 had no title, inasmuch as they did not share in cultivation with the deceased mortgagor at the time of his death. The learned Assistant Collector granted an unconditional redemption on the finding that the entire mortgage money had been paid up. He held that the plaintiffs character as occupancy tenants of several other plots, not the plots in dispute, as the heirs of the deceased mortgagor was admitted by the defendants and their predecessors. On appeal the learned District Judge held that plaintiffs 2 and 3 were not entitled to redeem, inasmuch as they did not share in cultivation with the deceased at the time of the mortgage. When th6 matter came up before me in revision I sent down two issues: (1) What is the khata in which the property in suit is situate? Are there any such plots in that khata belonging to the deceased Bhaggu in respect of which the applicants shared in cultivation with their grandfather, Bhaggu 1 (2) When did Bhaggu die? This remand was necessary by reason of an error of law made by the learned District Judge, because the material date when the plaintiffs should have shared in cultivation with their grandfather was not the time of the mortgage but the date of his death. The learned District Judge has submitted the following findings: (1) The khatas in which the property in suit is situated are Nos. 148, 43, 155, 257, 315 and 356. There are no plots in these khatas belonging to the deceased Bhaggu in respect of which the applicants could have shared in cultivation with him. (2) Bhaggu died about 20 years ago.

(3.) It has been contended before me that the findings are not enough to dispose of the claim. This may be so but I do not think the learned District Judge is at all to blame for the form in which he has returned his findings. The findings are in answer to the issues sent down by me. A preliminary objection has been taken by the learned Counsel for the opposite party that the application in revision does not come within the four corners of Section 115, Civil P. C? in that the learned Judge did not exercise a jurisdiction not vested in him by law, nor did he fail to exercise a jurisdiction so vested, nor did he even act, in the exercise of his jurisdiction, illegally or with material irregularity. To my mind the judgment of the learned Judge betrays a lack of appreciation of the true legal position. I am, therefore, entitled to come to the conclusion that he has acted at least with material irregularity. Or, to put it in another way, on the facts found and on the law as it is, as I shall presently show, the plaintiffs were entitled to a decree. The plaintiffs have, as a result of a misapplication of the law, been denied justice. This will, to my mind, amount to a material irregularity. I am fortified in my view by the principle laid down in Abdul Noor V/s. Brij Mohan Saran .