DWARIKA TEWARI Vs. MATA BADAL MALI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit for redemption of a mortgage. The plaintiff's case was that half of old plot No. 5 corresponding to plot No. 11 of the recent settlement was mortgaged by Sheo Sahai, grand-father of plaintiffs 1 and 2 and great grand-father of plaintiff 3 to Ram Prasad Mali grand- father of defendant 1 about 45 or 46 years prior to the, institution of the suit for a sum of Rs. 49-15-0 and that the plaintiffs were entitled to redeem the mortgage.

(2.) The defence to the suit was that the plot in dispute never belonged to the plaintiffs and was never mortgaged to defendants ancestor and that the defendants were in possession of the plot in dispute not as mortgagees, but as fixed rate tenants. Both the Courts below have accepted the pleas urged in defence and have dismissed the plaintiffs suit.

(3.) The lower appellate Court has found as a fact that a portion of plot in dispute was made a gift of by one Thakur Narain Singh, who was the zemindar of the plot in dispute to two persons Mata Din Tewari and Sheo Sahai in 1248 F., and that the plot in dispute all along continued in possession of Ram Prasad Mali as a tenant, and that the donees under the deed of 1248 F. never got actual possession of the same. It has further held that the plaintiff failed to prove that the plot in dispute was ever mortgaged to Ram Prasad Mali, and that the specific mortgage set up by the plaintiffs has not been proved. It has also held that the only right of Sheo Sahai as one of the donees under the deed of 1248 F, was to realize a certain amount of rent from Ram Prasad Mali who was tenant of the plot in dispute and it was this right to realize rent that was actually mortgaged by Sheo Sahai to Ram Prasad Mali. These findings of the lower appellate Court are based upon entries in the revenue papers and the learned Counsel for the appellants has failed to satisfy me that the lower appellate Court has in any way misconstrued the entries in the revenue papers. It is true that a perusal of the deed of 1248 F. leads to the conclusion that what was gifted by Thakur Narain Singh was not the right to realize rent, but was a right to actual occupation of a portion of the plot in dispute, but even then Ram Prasad Mali, having continued in possession as a tenant after the gift, would acquire in the plot in dispute either the rights of an occupancy tenant or the rights of a fixed rate tenant. In either case the right to the possession of the plot would be with him and the plot itself could not have been mortgaged by Sheo Sahai.