JAGARDEO SINGH Vs. ALI HAMMAD

JUDGEMENT

(1.) These are four connected appeals which have come before us under the following circumstances: The plaintiffs instituted, in the Court of the Assistant Collector, Azamgarh, four suits for the ejectment of the defendant from certain specified plots of land, in each case with the allegation that they themselves were mortgagees in possession of the proprietary rights over the said plots, and the defendant was a non-occupancy tenant of the same. The defendant replied that there was no contract of tenancy between himself and the plaintiffs; that his possession was proprietary in its nature and that he was in possession as of right; because he was a co-sharer in the proprietary rights of the particular sub-division of a mahal to which the land in suit appertained. On this the learned Assistant Collector took action under Section 199 of Act II of 1901, requiring the defendant to file a suit in the Civil Court for the determination of the question of title in issue between himself and the plaintiffs. The Court of first instance determined the question in favour of the present defendant who was, of course, the plaintiff in the Civil Court. On appeal, however, this decision was reversed. The controversy in this case has been very largely as to the meaning and effect of the Appellate Court s decision in this litigation. The decision fairly considered amounts to this, that the plaintiffs-respondents (the defendants in the Civil Court) held a usufructuary mortgage in respect of the plots of land in suit and were entitled to the exclusive possession of the same as such mortgagees; but the present defendant had acquired a share in the proprietary rights, that is to say, in the equity of redemption, in respect of the mortgage held by the opposite party. The case came again before the Assistant Collector, who was bound to dispose of the ejectment suit then pending before him in accordance with the final decision of the Civil Court. He passed a brief order to the effect that in view of the decision of the Civil Court, the defendant could only be regarded as in possession of the land in suit as a sub tenant, that is to say, a non-occupancy tenant (the land in question being sir land) from the plaintiffs. He ordered the defendant to be ejected accordingly. The defendant filed an appeal in the Commissioner s Court, who refused to entertain it, holding that a question of proprietary title was still in as between the parties. The defendant then went before the District Judge in appeal, who dismissed the appeal holding that the question of proprietary title, originally in issue, had been finally and completely disposed of in the suit already referred to, and that there was no question left for determination in the case which was not exclusively cognisable by the Revenue Courts. Against this decision four second appeals have been filed. When the case originally came up for hearing, the facts were not as clear as they are now, and an order was passed directing the District Judge to entertain the defendant s appeal and to determine certain issues of fact.

(2.) We have now before us the findings arrived at by the District Judge on the issues remanded, and as a matter of fact his findings proceed on admissions made by the parties. The mortgage under which the present plaintiffs-respondents now hold, and have been holding since 1902, was a mortgage of the specific plots of sir land which are now in suit. The mortgage itself had been contracted prior to the passing of the present Tenancy Act; so no question of ex-proprietary rights arises. On the terms of the mortgage the plaintiffs, as transferees of the mortgagee rights, were entitled from 1902 and onwards to actual possession and enjoyment in respect of the land in suit.

(3.) The defendant, having acquired a part of the equity of redemption, asserted a right to take possession of some of the sir lands, without tendering the mortgage money. In prosecution of this claim he somehow succeeded in obtaining possession of the plots of land now in suit. The question specifically raised by these appeals is whether the learned District Judge was right or wrong in holding that no appeal lay to his Court. I should be prepared to hold that that decision was correct, but the matter has now gone somewhat further. After the order of remand and the ascertainment of the facts, the real question before us is whether the Assistant Collector was right in ordering ejectment of the appellant. On the principles laid down by a learned Judge of this Court in Balli v. Naubat Singh 16 Ind. Cas. 120 : 9 A.L.J. 771 the Assistant Collector was clearly right. It has been suggested, on the other side, that this decision was doubted in a Fall Bench decision of this Court in the later case of Nandan Singh v. Ganga Parhsad 20 Ind. Cas. 892 : 35 A. 512 at p. 516 : 11 A.L.J. 786. (See specially the remarks at page 516.) As a matter of fact the decision reported as Balli v. Naubat Singh 16 Ind. Cas. 120 : 9 A.L.J. 771 was not specifically considered or in terms overruled, though it is open for the appellant to contend that remarks of the learned Chief Justice, when delivering the judgment of the Full Bench, suggest that he was not prepared to accept the correctness of that ruling. We find, however, that the principle laid down in Balli v. Naubat Singh 16 Ind. Cas. 120 : 9 A.L.J. 771 has been in substance accepted and followed by the Revenue Court since that decision was pronounced. Reference may be made to the notes by Mr. M. L. Agarwala in his valuable commentary on the N.W. P. Tenancy Act, fifth edition, at pages 40 et seq. of that edition. Moreover, there is a decision of the Board of Revenue Champa Kuar v. Pati Ram 33 Ind. Cas. 70 which deals with the position of a squatter occupying agricultural land for cultivating purposes, and which adopts the principle of the case of Balli v. Naubat Singh 16 Ind. Cas. 120 : 9 A.L.J. 771 to its fullest extent. In this state of authorities I should be prepared personally to stand by the reported decisions directly bearing on the question before us. Moreover, I think that, there being nothing in favour of the defendant on the merits, it is not incumbent on us to go out of our way to insist upon any legal technicalities for the sake of enabling the defendant to prolong this litigation. The decision in the case of Champa Kuar v. Pati Ram 33 Ind. Cas. 70 is by the Senior Member of the present Board of Revenue; and it is quite clear that if the defendant had got what he asked for, namely, a re-consideration of the Assistant Collector s order by the higher Revenue Courts, the result would have been to affirm his ejectment.