TASADDUQ HUSAIN Vs. CHATURBHUJ

JUDGEMENT

(1.) These are two connected second appeals from a decision of the District Judge, and they have given me a good deal of trouble on account of the number and variety of points of law which are said to arise. One appeal is valued at Rs. 8, and the other at Rs. 12. There are almost as many points as there are rupees. I will try and deal with all of them in turn. I hope if I forget any of them, I shall be forgiven by the parties because they are so many, and I cannot remember them all. I may at first say that I think the decision is right, and a decision which, as the Judge himself says he was bound to come to. A suit was brought in the Court of the Assistant Collector by a zamindar against a mortgagee for ejectment. On the facts stated, the suit was improperly brought in a Court which the plaintiff knew perfectly well had no jurisdiction to eject the defendant. The land had been the occupancy tenancy of one Mangla with others. Mangla died and the property was inherited by Mt. Lachmania,, his widow. Before his death Mangla, during the tenancy, had mortgaged the property, in favour of the defendant, the present respondent, who constructed buildings upon it.

(2.) It is important to observe that it is found by the lower appellate Court that the plaintiff had in 1903 brought a similar suit for ejectment against both Mangla and the others, that is to say, the occupancy tenants and also the usufructuary mortgagee, and that suit was dismissed on the 13 of October 1903. One of the points raised in defence in this suit is that the decision of that suit was a determination of the issue, and that, therefore, this suit is governed by Section 11, Civil P.C. I should have thought that was a correct view, and if necessary I am prepared to hold that, although I do not think it necessary. The lower appellate Court holds that Section 11 does not apply. He does not say why. It may be that he thought that the Court which tried the previous suit in 1903 had no jurisdiction, and was therefore, not competent to decide the question of the ejectment of the usufructuary mortgagee. If that is the correct view, it puts the present plaintiff in a dilemma, because if the previous Court had jurisdiction over the mortgagee to eject him, it decided against the plaintiff and interfered with Section 11. If, on the other hand, its had no jurisdiction, then the Assistant Collector had no jurisdiction, and the plaintiff brought his suit admittedly in the Court which had no jurisdiction to decide it.

(3.) The foregoing, however, is not the point which has been argued, although many others have been. The Assistant Collector held in favour of the plaintiff. The widow had relinquished the holding, and as between herself and the plaintiff had brought the tenancy to an end. It looks suspicious that she should have clone so, because no motive for it is assigned, and to that extent it creates a distinction between the first suit decided in 1903 and the present suit, but a distinction which does not govern the relationship between the plaintiff and the mortgagee, the present defendant. But it looks very much as if the plaintiff hating been defeated in his previous efforts to eject this mortgagee, procured the relinquishment or surrender in the hope that it would enable him to improve his position in a subsequent suit. The Assistant Collector fell into the trap, and apparently, adopting the view which has been taken by the Board of Revenue, held that the Court had cognizance of the case, and that the mortgagee had no right on the land in suit. It was equivalent to a declaration that the mortgage had determined, and was a complete determination destructive of the mortgagee's original rights under his mortgage from the deceased Mangla.