BABU RAM KUMAR Vs. MAHPAL SINGH

JUDGEMENT

(1.) This is a second appeal from the decree passed by the learned District Judge of Cawnpore on appeal from a decree of the Second Subordinate Judge of that district in a suit by the appellants for recovery of Rs. 2000 by sale of property specified at the foot of the plaint in enforcement of a mortgage deed dated 8th January 1884, executed by Nanhe, who is now represented by his heirs defendants 1 and 2. Defendants 3 and 4 have purchased half of the mortgaged property under a dead dated 25 May 1933. The property mortgaged consisted of 3 pies and odd share in thok Kalloo Singh, village Gajner, District Oawnpore, with sir and khudkasht. The principal sum advanced was Rs. 2000. The stipulation as regards interest was that the mortgagee would be given possession of the mortgaged property and ha would have the right to appropriate all the rents and profits in lieu of interest and that at the time of redemption the mortgagee would not have a right to claim any interest, nor would the mortgagor be entitled to claim any mesne profits. A period of 25 years was fixed for redemption. During that time the mortgagor was not entitled to redeem and the mortgagee was not entitled to call in his money. It appears that appertaining to the mortgaged share there was some sir land of the mortgagor which was either left in his possession at the time when the mortgage deed was executed or was subsequently let by the mortgagee at a rant of Rs. 23 a year. The mortgage deed however does not make any reference to this transaction. It recites, on the other hand, that the share including the sir was mortgaged and would be handed over to the mortgagee. It is no longer in dispute that the mortgagor and his legal representatives have been in possession of the sir all along. The lower Courts have found that the mortgagee was in receipt of Rs. 23 a year from the mortgagor or his representatives upto 1335 Fasli after which no payment of rent has been made.

(2.) The suit which has given rise to this appeal was brought by the Court of Wards representing the estate of the mortgagee on 15 March 1934, on the allegation that the defendants deprived the mortgagee of part of the security and that the plaintiffs were entitled to recover the sum of Rupees 2000, the amount originally advanced, and Rs. 115 being the profits of the sir for five years before the suit, by sale of the mortgaged property. No appearance was entered on behalf of the defendants in the trial Court. The suit was however dismissed by that Court on the finding that the plaintiff had not been dispossessed from any part of the mortgaged property, nor was there any evidence to show that the mortgagor had failed to give possession of the mortgaged property. The first Court considered that as the mortgage was usufructuary, the mortgagee was not entitled to sue for the mortgage money unless it was established that Section 68(c), T.P. Act under which the suit was apparently brought was applicable. The plaintiffs appealed to the District Judge. Defendants 1 and 2 did not put in appearance even at that stage, but defendants 3 and 4 contested the appeal. The learned District Judge held that as the mortgagor failed to pay rent after 1335 Fasli and because of certain other circumstances noted in his judgment, the mortgagor should be considered to have withheld possession of the sir land, at any rate, since 1335 Fasli. accordingly the learned District Judge held that Sec. 68(e), T.P. Act was applicable and that the plaintiffs were entitled to sue for their mortgage money. The learned Judge went on to hold that the mortgagee was entitled only to a personal decree under Section 68(e), T.P. Act and that no decree for sale of the mortgaged property could be passed. He also held that as defendants 3 and 4 were not responsible for the dispossession of the mortgagee from the sir land the plaintiffs were not entitled to any decree against them. In the result the learned Judge passed a personal decree for Rs. 2115 claimed by the plaintiffs only against defendants 1 and 2. The present second appeal has been preferred by the plaintiffs.

(3.) The learned advocate for the appellants has addressed a twofold argument in appeal. He maintains that in the circumstances of the case, Section 68(e), T.P. Act was applicable and that the plaintiffs are entitled to a decree for sale having regard to the provisions of Section 67 of the same Act which should be read with Section 68(e). For this contention, he relies upon Narsingh Partab Bahadur Singh V/s. Mohammad Yaqub Khan (1929) 16 A.I.R. P.C. 139. Secondly, it is contended that there is an express covenant in the mortgage deed which entitles the mortgagee to recover the mortgage money after the expiry of 25 years. It is said that consequently Section 68(a) is also applicable. In our opinion there is no evidence on which it can be held that the mortgagee was deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor as pro. vided by Section 68(c). The plaintiffs rely on the fact that in the year 1335 Fasli or thereabout an application was made by them to the Revenue Court for the entry of the names of defendants 1 and 2 as sub-tenants of the sir land which was in their possession. It is not disputed that defendants 1 and 2 were entered in the khatamii as tenants. The plaintiffs case was that the land should be considered to be the mortgagee's sir and that the actual cultivators, namely defendants 1 and 2, should be considered and recorded as subtenants, The result of the recognition of this position of the parties would have been that defendants 1 and 2 would be liable to ejectment as tenants-at-will at the instance of the mortgagee who in relation to defendants 1 and 2 should in that view be considered to be the landholder entitled to eject the cultivator of their sir land. Defendants 1 and 2 conested this application. No copy of their objection has been produced in this case, but we have the order of the Collector who decided the case in appeal. He held that the land could not be regarded as the sir of the mortgagee and that defendants 1 and 2 should not be considered to be subtenants.