BHAIRON PRASAD Vs. KURA MAL

JUDGEMENT

(1.) THIS is a suit arising out of a certain contract embodied in a registered instrument of the 2nd of October 1903. Under this instrument the plaintiff obtained possession of certain land of which the pre-decessor-in-title of the defendants was the owner. It is admitted that under the terms of the contract the plaintiff was entitled to remain in possession for five years. After this period bad expired the proprietors of the land instituted proceedings against the plaintiff for his ejectment, describing him as a lessee or tenant of the land in question. The case was contested in the Revenue Courts up to the highest Court of revision, but ended in a decree for the ejectment of the plaintiff.

(2.) THE present suit is based upon the allegation that the plaintiff could not legally be ejected by the defendants from his possession over this land without the defendants first paying him a sum of Rs. 125. THE claim is for this sum with interest. THE Court of first instance decreed the claim and that decree has been reversed by the Additional Subordinate Judge of Cawnpore. THE real question about which the parties have been disputing is whether the document of the 2nd of October 1903 was really a lease or a mortgage. THE main point taken in the appeal now before us is that the defendants, having succeeded in obtaining from the Revenue Courts the ejectment of the plaintiff by representing him as a mere lessee, were not entitled in this suit to obtain a decree in their favour on the strength of certain legal difficulties based upon the finding that the document in question was in reality a mortgage, though drawn up under the form of a lease. To this contention there appears to be more than one answer. If the plaintiff had come into Court alleging that he was a lessee, who had formerly held under a contract of lease, pure and simple, and that he had been deprived of his possession as such lessee under circumstances which amounted to a breach of contract on the part of his lessors, for which breach of contract be was entitled to recover damages to anamount sufficiently apparent from the terms of the contract itself, he might or might not have bad an arguable case. THE suit, however, would have been a wholly different suit from that actually brought, and it would beyond question have been a suit of the nature cognizable by a Court of Small Causes, within the meaning of Section 102 of the Code of Civil Procedure. Supposing that it were possible at this stage to treat the plaintiff s suit as having been nothing more than what is above stated, we could not entertain a second appeal in this matter, in view of the provisions of the section above referred to, the subject-matter of the present suit being admittedly less than Rs. 500 in value. As a matter of fact, the plaintiff based his suit upon the allegation that he was in reality the mortgagee of this land under the contract of the 2nd of October 1903. He distinctly alleged that the contract in his favour amounted in law to a possessory mortgage, although it was drawn up in the form of a zar-i-peshgi or a premium lease. This plea by the plaintiff was admitted by the defendants in their written statement. It may be contended that, in making this admission, the defendants were departing from the position taken up by them in the Revenue Courts. THE materials on the record before us make it a little difficult to determine this point with certainty; but in any case it seems impossible to hold that the plaintiff is entitled, at a subsequent stage of the litigation, to make it a grievance that an important allegation of fact contained in his own plaint was admitted by the defendants. If the contract of the 2nd of October 1903 was in the eye of the law a mortgage, then the reasoning of the Court below is correct. What the plaintiff really obtained under this contract of mortgage was a right in law to treat his mortgagors as ex-proprietary tenants of the land in suit, and to get a rent assessed on them as such. This point was clearly laid down by a Bench of this Court, of which one of us was a member in Dipan Roi v. Ram Khelawan Rai 5 Ind. Cas. 557 : 7 A. L.J. 330 : 32 A. 383 the principle of which seems to have been affirmed in subsequent decisions of this Court. We cannot concern ourselves with the question whether or not the Revenue Courts were right, on the law or on the facts, in ejecting the present plaintiff from his possession over the land in suit. We know that he was not in possession on the date on which this suit was instituted and the Court below is right in saying that he, being out of possession and coming into Court as plaintiff, was not entitled, either to a decree for recovery of possession (which he did not even claim) or to a decree for the recovery of the sum of Rs. 125 paid nominally as a premium upon the contract of lease, if that payment is to be regarded as having been in reality the mortgage-debt advanced upon a contract of mortgage. On these grounds this appeal must fail and we dismiss it with costs.