JAGARNATH SAHU Vs. SRIKANT DUBE

JUDGEMENT

(1.) Guptar Dube and Loknath Dube executed a usufructuary mortgage in favour of Jagarnath and Suraj Nath on 23 May 1922, for a sum of Rs. 1,300. It was registered on 22 June, 1922. The property mortgaged consisted of fourteen specific plots comprising an area of 3.32 acres. The mortgagors are dead. Their sons applied under Section 12, U.P. Agriculturists Relief Act for the redemption of the mortgage. They impleaded as opposite parties not only the two mortgagees, Jagarnath and Suraj Nath, but also their father, Rachha Sahu. Rachha was impleaded on the allegation that his name stood fictitiously recorded as a tenant over two of the mortgaged plots, Nos. 554 and 240, comprising an area of 34 acres. It was alleged that, in fact, the mortgagees themselves were in possession of these two plots. The plaintiffs prayed for actual possession of all the plots mortgaged including the aforesaid two plots over which Rachha's name was recorded as a tenant. Rachha pleaded that he had no connection with the mortgage, that he was in possession as a tenant and not as mortgagee and that the suit was bad for multifariousness. An issue was framed on the point, whether Rachha was a tenant of these two plots or not. The application for redemption having been made in the Court of a Munsif, the issue with regard to Rachha's tenancy, was referred to the revenue Court for a finding. The Revenue Court returned a finding in favour of Rachha, and accepting that finding, the Court of first instance gave a decree for redemption to the plaintiffs or payment of Rs. 624- 10-0 and further directed by means of that decree that the plaintiffs will get actual possession of the plots mortgaged excepting the two plots which were being occupied by Rachha as a tenant. The lower appellate Court modified the decree of the Court of first instance in respect of two matters. It allowed redemption on payment of Rs. 374-10.0 only instead of on payment of Rs. 624-10.0 and reversing the finding returned by the revenue Court and holding that Rachha was not a tenant of the aforesaid two plots, it directed possession of all the fourteen plots to be given to the plaintiffs.

(2.) This application in revision is directed against the aforesaid decree of the lower appellate Court. The mortgagees and Rachha have both joined in making this application. The mortgagees contend that the lower appellate Court has adopted a wrong basis for the calculation of profit and has also erred in crediting the mortgagees with only Rs. 5 annually on account of Government revenue paid by them instead of crediting them with Rs. 6 odd on that account. The questions raised by these applicants do not fall within the purview of Section 115, Civil P.C., Therefore, the decree of the lower appellate Court cannot be interfered with in a revision even if these contentions be sound. This application in revision in so far as it is on behalf of the two mortgagees is, therefore, liable to be dismissed.

(3.) The contention put forward on behalf of Rachha Sahu is that the Courts below had no jurisdiction to adjudicate upon the questions of tenancy in these proceedings, under Section 12, Agriculturists Relief Act, and, for this reason, the findings on the question of tenancy and the decree granted against him should be set aside. In support of this contention reliance has been placed on my judgment in Bhagwati Misir V/s. Ram Ugra Misir, Civil Revn. No. 544 of 1945, decided on 1st October 1948, wherein I held as follows: The jurisdiction of a Court, deciding an application under Section 12, U.P. Agriculturists Relief Act, whether as a Court of original jurisdiction or as a Court of appeal, is a special jurisdiction conferred upon it by a special provision of the Statute and is limited within the four corners of that section. It has jurisdiction only to adjudicate upon the question of redemption and no more. The lower appellate Court had, therefore, no jurisdiction to record a finding on the question of tenancy and that finding should be set aside. 3a. Learned Counsel for the opposite parties points out that my decision has been dissented from by Bhargava J. in Ram Kripal V/s. Bhagwati Saran, civil Revn. No . It does appear from a perusal of the judgment in Ram Kripal's case that my learned brother Bhargava J. has taken a contrary view, though he has not expressed his dissent in express words, and has not referred to that part of my judgment where I definitely said that the lower Court had no jurisdiction to record a finding on a question of tenancy. The view of Hamilton J. in Mt. Thakurain Tiwarin V/s. Chandi Prasad, Civil Revn. No. 199 of 1945, decided on 20 February, 1946, is, however, more in accordance with the view expressed in Bhagwati Misir's case Civil Revn. No. 544 of 1945 than with the view expressed in Ram Kripal's case .