ABDUL MUGHNI KHAN Vs. MTFARKHUNDA BIBI

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for possession of properties specified in the plaint and for the recovery of mesne profits. The question raised in the appeal is a short and simple one. The facts may be briefly stated. Defendant 2 on 18 September 1924 executed a simple mortgage deed by which he mortgaged his one quarter share of Mauza Kakarghata to the plaintiff. The plaintiff brought a suit on the footing of the mortgage and obtained a decree on 12 May 1928. The decree she put into execution. The mortgaged property was auctioned and purchased by the plaintiff herself on 21 November 1928. Prior to the auction-sale, namely on 20 April 1928, the mortgagor and his co-sharers executed a theka whereby they leased the property in suit and the shares of the other cosharers for a period of twelve years to defendant 1. Following upon the execution of this theka defendant 1 obtained mutation in respect of the entire property leased in his favour.

(2.) The plaintiff filed the present suit in which she prayed for possession of the property which was mortgaged and which formed part of the property which was leased under the lease of 20 April 1928 and the sum of Rs. 234-10-9 in name of mesne profits. The learned Subordinate Judge has held that the plaintiff must have recourse to the Revenue Court for possession of property purchased by her and for the mesne profits due to her. He has, however, granted a declaration in favour of the plaintiff that the lease of 20 April 1928 is not binding upon the plaintiff by virtue of the provisions of Section 52, T.P. Act.

(3.) It appears from the judgment of the learned Subordinate Judge that the question as to whether the lease was void in respect of the mortgaged property under the provisions of Section 52, T.P. Act, was referred to the revenue Court for decision. The revenue Court held that the theka of 20 April 1928 was a transfer of property affecting the rights of the plaintiff within the meaning of Section 52, T.P. Act, and as such was void against the plaintiff. Learned Counsel for the appellant advanced two arguments in appeal. He contended in the first instance that the learned Subordinate Judge was not entitled to grant a declaration that the lease of 20 April 1928 was not binding on the plaintiff, inasmuch as there was no prayer for such a declaration in the plaint. Prayer (d), however, may be taken to include such a declaration. This prayer is as follows: Besides or in place of the reliefs sought, any other reliefs that may be deemed beneficial by the Court may be granted to the plaintiff.