LAKSHMI NARAYAN Vs. SHRIDHAR

JUDGEMENT

(1.) SLACKNESS of phrase and thought is responsible for this very simple case being complicated by many irrelevant arguments in both Courts and having taken a year to try. The phrase that perhaps shows the greatest laxity of expression and has been the most misunderstood is that relating to the sir land in the village in question when it was sold. In every document from the preliminary decree for sale to the warrant for delivery of possession and indeed the report of delivery of possession, the village is ordered to be sold or said to have been sold sir zamin chhorke or "excluding sir land." Those words taken liter-rally import a sale of neither the proprietary right nor the occupancy right in the sir land, one which would leave the original proprietor still owner of that land as sir. It is, however, clear that, their real meaning is to include in the [sale the proprietary right but to exclude from it the occupancy right in the sir land. But all through the case, even in this Court, most of the reasoning has been based on the literal meaning of the words, and other parts of it on their real meaning.

(2.) THE only facts that are relevant are these. The proprietary right in the whole of the village of Malona, which belonged to the respondents and included 82.06 acres of sir land, was sold by auction in execution of a decree on the 25th May 1922 and bought by the appellant. The occupancy rights in the sir land were expressly excluded from the sale by the phrase already mentioned, which has lost its essential ambiguity by long usage, though it would not matter if they had not been excluded so long as they were not expressly included. On the 24th April 1923 the appellant was put in possession of what had been sold to him, that is to say of the proprietary rights in the whole village including the sir land. But he was not put in possession of the occupancy rights in what had been sir land any more than of the occupancy rights in any other land in the village. At some later date, probably within two or three months after the 24th April 1923 the appellant, who then owned the village, dispossessed the respondents of their occupancy holding of 82.06 acres.

(3.) THOUGH it is irrelevant it is perhaps advisable to explain how it is wrong to say, as the appellant says, that on the transfer of a village under a mortgage, whether by foreclosure or sale, the mortgagor becomes an occupancy tenant of only so much of the sir land as had that character at the date of the mortgage and not of that part of it which has become sir in the interval. Whether the land was khudkasht or banjar or tenancy land at the time of the mortgage, the mortgagor has in the interval acquired in it the occupancy right which, with the proprietary right he held before, makes up the sir right though it remained in a state that may be called dormant. That occupancy right is undoubtedly an accretion to the mortgaged property and, in the absence of a contract or law to the contrary, would pass with it to the mortgagee. But there is a very clear enactment to the contrary in Section 49, Tenancy Act, and the mortgagors in this case were entitled to remain in possession as occupancy tenants of all the land that was sir on the date of the sale.