GAUTAM JAYACHAND GUAR Vs. MALHARI BAPU BHONG

JUDGEMENT

(1.) THE plaintiff claims as the owner of the land in suit under a sale-deed executed in his favour by the previous owner Achyut in 1887, and as such owner claims possession of the land from the defendant, who, he alleges, became his tenant under a lease of even date with the sale-deed. THE defendant s case is that his father, and not the plaintiff, was the purchaser from Achyut; that the plaintiff was the saokar who advanced money, and payment of the interest was secured by the contemporaneous lease. THE defendant s case has been substantially held to be established on the facts by concurrent findings of two lower Courts, and we are bound by those findings.

(2.) THE question of law, however, has been raised whether this is a suit in which the real intention of the parties to the lease can be investigated under Section 10A of the Dekkhan Agriculturists Relief Act as being a suit for possession of mortgaged property within the meaning of Section 3(y) of that Act. If strictly read it may be fairly argued that that Clause (y) should only apply to suits where the plaintiff sues as mortgagee for possession of the mortgaged property. But the Dekkhan Agriculturists Relief Act must be read as a whole, and as part of the Dekkhan Agriculturists Relief Act we have Section 10A, which says: "Whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party that any transaction in issue entered into by such agriculturist or the person, if any, through whom he claims was a transaction of such a nature that the rights and liabilites of the parties thereunder are triable wholly or in part under this Chapter, the Court shall, etc." Now the illustrations to that section, namely, illustrations (a) and (c) show that the intention of the Legislature, when this section was enacted, was to apply the provisions to suits by a money- lender suing to enforce either a lease or a sale-reed against an agriculturist, though the instrument sued on was really according to the intention of the parties in the nature of a mortgage. That is exactly the case we have here, and therefore, reading Clause (y) of Section 3 by the light of Section 10A, we must conclude that the intention of the Legislature was that the nature of the suit under Clause (y) should not be determined by the frame of the plaint, but by the allegations of the parties which raised the question of mortgage or no mortgage. That being so, we think it cannot be doubled that the question raised upon the lease contemporaneous with the sale deed of 1887 is a question which must be disposed of under Section 10A. It has been so disposed of by the lower Courts, and, therefore, the point of law which has been raised must be decided in favour of the respondent. We affirm the decree and dismiss the appeal with costs.