RAM KIRPAL MISIR Vs. BHAGWATI SARAN MISIR

JUDGEMENT

(1.) This is an application in revision under Section 116, Civil P.C. It has been filed by Ram Kirpal Misir, who was defendant 2 in a proceeding under Section 12, U.P. Agriculturists Relief Act, started by Bhagwati Saran Misir against him and Rameshwar Misir, defendant l, in the Court of the Additional Munsif of Basti, on the basis of a usufructuary mortgage deed, dated 27 May 1902, for Rs. 650. The mortgaged property consisted of six plots of land, situate in village Belsar in the district of Basti.

(2.) The plaintiff Bhagwati Saran Misir claimed to be the legal representative of the mortgagors, and alleged that the entire mortgage money had been paid up out of the usufruct of the mortgaged property. He impleaded Ram Kirpal on the ground that Rameshwar Misir, (the mortgagee) and his own brother, Dwarka Misir, were the members of a joint Hindu family, that after the death of Dwarka, Rameshwar and Ram Kirpal son of Dwarka, continued to form a joint family and they were joint in estate as well as in business, that Rameshwar was a shrewd person, and, in collusion with the patwari, he got the name of Dwarka entered as a tenant in the mortgaged property, and that Rameshwar was in actual possession of the property and the name of Ram Kirpal was fictitiously entered in village papers.

(3.) The plaintiff's right to redeem the mortgage was admitted. It was also not disputed that he was entitled to the benefits of the Agriculturists Relief Act and the Debt Redemption Act. One of the questions raised in the case was whether Ram Kirpal's name had been fictitiously entered as a tenant in village records or whether he was holding the land as a tenant as alleged by him. The issue on the question of tenancy thus raised was remitted to the revenue Court which returned a finding that Ram Kirpal was the tenant of the land which was covered by the mortgage, and he had been cultivating the same since 1310-F. The trial Court found that the entire mortgage money was still due and made an order for redemption on payment of the entire mortgage money, i.e., Rs. 650.