ABHILAKH DHELPHORA Vs. LILADHAR DHALPHORA

JUDGEMENT

(1.) THE facts of this case are clearly set out in the judgment of the District Judge, dated the 9th of September 1915, by which he remanded an issue to the Court of first instance. Briefly putthe case is as follows. An occupancy tenant in the year 1900 gave a usufructuary mortgage of his holding to the Zemindar About a year before this suit was brought the Zemindar sold his property rights to Abilakh and Lochan. He also relinquished his sir and khudkasht lands in favour of his Vendees. Among such lands he transferred to the vendees the property which is now in suit. THE mortgagor deposited the money due under the mortgage under Section 83 of the Transfer of Property Act making Sheo Narain, Lochan and Abilakh all parties to his application. This was on the 17th of April 1914. As the money was not taken, he sued on the 2lst of July 1914 for redemption of the mortgage and for damages. THE Court-below set aside the decree of the Court of first instance and decreed the plaintiff s suit, awarding the plaintiff mesne profits with effect from the date of the institution of the suit. It was pleaded on behalf of the appellant that the suit is time-barred because the plaintiff is an occupancy tenant who has been dispossessed for more than six years and his suit for possession was birred by time. Attention is called to the ruling of Pahalwan Singh v. Satrupa Kuar 2 A.L.J. 471; A.W.N. (1905) 178. This decision does not assist me in the present case at all. That was a suit by a mortgagee of an occupancy holding to recover possession of that holding when his mortgagor, the occupancy tenant, had been dispossessed by the Zemindar. THEre has been no unlawful dispossession in the present case. THE mortgagee has made a transfer to Abilakh and Lochan of his Zemindar rights He voluntarily and willingly gave up these lands to them THEy did not unlawfully dispossess him in any way. As against them Sheo Narain could not possibly recover possession, they being the transferees of his rights. THEre can be no doubt as to the mortgage and as to the transfer by Sheo Narain to Abilakh. THE tenant, that is the respondent to this appeal, could not possibly recover possession without paying his money and he can only recover possession by a redemption suit. THE suit is not a suit by a tenant to recover possession of a holding from which he has been unlawfully dispossessed. It is a suit by mortgagor to recover possession from his mortgagee and certain persons to whom the mortgage has transferred. THE limitation of 12 years applies from the date of transfer to Abliakh and Lochan. (Article 134).

(2.) THE next point which has been pressed is that the appellant is not liable for mesne profits which have been awarded by the Court below as damages. THE appellant has been in possession with effect at least from the date of the suit, knowing very well that his right to retain possession was contested and with all the facts of the case before him. THE profits that were in his pocket belonged prima facie to the plaintiff who had deposited the money under Section 83 of the Transfer of Property Act. If the appellant has any remedy against Sheo Narain it is open to him to take it. I see no justice in exempting him from the decree and allowing him to keep in his pocket that which belongs to the plaintiff. THEre is no force in this appeal. It is, therefore, dismissed with costs.