RAM SWARUP Vs. BUNYAD ALI

JUDGEMENT

(1.) This is a second appeal by defendants first party against a decree of the lower appellate Court. The plaintiff originally sued for possession of the property detailed in the plaint. The first ground in second appeal is that as the plaintiff sued for possession the lower appellate Court was wrong in holding that the plaintiff was in possession and in granting the plaintiff a decree for declaration only. But as noted in the judgment of the Court of first instance an amendment of the plaint was allowed which changed the suit from one for possession into a suit for declaration only. The facts of this case are as follows; On 17 March 1866, Mt. Najiban, owner of the property, made a usufructuary mortgage for Rs. 250 to Gobind Sahai, the predecessor of defendants second party.

(2.) On 20 July 1873, Mt. Najiban made a second usufructuary mortgage of the same property and some other property for Rs. 1,900 to Bul Chand, etc., predecessors of defendants first party. That mortgage contained a stipulation that the mortgagees were to pay off the Rs. 250 due on the first mortgage and then obtain possession. It is admitted that Bul Chand etc. did not pay off this Rs. 250.

(3.) In 1916 defendant 16, Nasiruddin redeemed the first mortgage, deposited Rs. 250 in Court, and obtained possession. In January 1925 the plaintiff (a transferee of a share from Mt. Najiban) deposited his rateable share of Rs. 250 and redeemed his share of the mortgage. An application for mutation was made and it was ordered that defendants first set, the present appellants, should be entered as mortgagees in possession. The plaintiff therefore, sued in the civil Court, and the lower appellate Court has granted the plaintiff a declaration to the effect that the plaintiff holds the property in his possession as a mortgagor and that the defendants first set appellants are entered in the khewat only in the capacity of mortgagees and not in the capacity of mortgagees in possession. It was argued by the learned Counsel for the appellants that when the revenue Court had declared that the appellants were in possession it was not open to the civil Court to reverse this finding. No authority was shown for that proposition, and on the contrary Section 44 and Section 40(3), Act 3 of 1901 state that it is open to any one to go to the civil Court who is aggrieved by an order in mutation of the revenue Court.