RAM KISHORE SINGH Vs. JAI MANGAL SINGH

JUDGEMENT

(1.) This is an appeal from an order of remand passed by the appellate Court of the Subordinate Judge of Basti. Objection is not made as to the remand itself, but the appeal is in the nature of a second appeal from a finding of the lower appellate Court on a question of law.

(2.) The plaintiffs and defendants are grandsons of two brothers and owned a certain revenue-paying property in equal shares. They also held sir land jointly in the village. In 1906 the father of the plaintiffs mortgaged his share of the zamindari property, including the sir rights, to the father of the defendants, and the mortgage has now been redeemed. The present dispute relates to actual cultivating possession of sir land previously held jointly in equal shares by the parties. Both the subordinate Courts have decided that, on redemption, the plaintiffs are not entitled to possession as cultivators and sir-holders of the land which they held as sir at the time of the mortgage. The reason they give is that immediately on the zamindari property being mortgaged, the plaintiffs became ex- proprietary tenants of their share of the sir land, and as they did not enforce their possession as such ex-proprietary tenants, they lost their right to do so six months after the date of the mortgage and the other joint sir-holders became sir-holders of the entire area of the land held as sir by the plaintiffs and defendants jointly at the time of the mortgage. The theory seems to be that the defendants have become sir-holders independently of the mortgage and on the redemption of the mortgage there is no sir land in their possession which they may be called upon to deliver.

(3.) Under Section 60 of the Transfer of Property Act the mortgagor has a right in the case of a usufructuary mortgage, on payment of the mortgage money at the proper time and place, to require the mortgagee to deliver possession of the property to him. The property here was the mortgaged property in the same condition in which delivery was made at the time of the mortgage, including the sir. Though sir is not detailed in the mortgage deed, in the description of the property, the zamindari property is stated to include sir forest and other rights. It must therefore be presumed that sir land was mortgaged along with the zamindari property. The defendants contention that the plaintiffs owned no sir at the time of the mortgage has not been accepted by the subordinate Courts, and it has been held against the defendants that the plaintiffs were owners of the sir land to the extent of one-half at the time of the mortgage. The only provision that Section 60 makes is that the right conferred by the section has not been extinguished by act of the parties or by order of a Court. No such act of parties or by order of a Court is pleaded here. What is pleaded is that the right has been extinguished under the provisions of the revenue law. We have therefore to see whether this is correct, and if correct whether the provisions of the revenue law can override the direct directions of the statute under the Transfer of Property Act.