RAMDHARI RAI Vs. RAMDHARI RAI

JUDGEMENT

(1.) Six mortgages with possession were executed by Ramjas, defendant No. 2, as the head of a joint Hindu family, in favour of the plaintiffs, of an exproprietary holding comprising Nos. 197, 22, 524, 462, 413, 57, 2054, 1972, 203 and 224, ten plots in all. The zamindar defendant No. 1 according to the allegation in the plaint colluded with the defendants Nos. 2, 3 and 4 who were the exproprietary tenants of the plots, and brought a suit for arrears of rent. The parties entered into a compromise whereby the exproprietary tenants relinquished their rights in favour of the zamindar. The plaintiffs filed an objection in that suit, but it was rejected. The zamindar then brought two actions for the ejectment of the plaintiffs. The defendants Nos. 2, 3 and 4 were impleaded. The first action was commenced on the 14 of August 1905 for ejectment from plots Nos. 197, 203/1 and 224. The Assistant Collector dismissed the suit on the authority of Rannu Rai V/s. Rafiuddin A.W.N. 1904. p. 170. There was an appeal to the Commissioner who on the 4 of Jane 1906 reversed the decree of the Assistant Collector and decreed the suit for ejectment. His decree was confirmed by the Board of Revenue on the 16 of November 1906. The result of these ejectment proceedings in substance was that the plaintiffs were ordered to be ejected from three plots, namely, 197, 203/1 and 224. In the face of the concurrent finding of both the Courts below, that the plaintiffs are still in possession it must be taken that the zamindar never got actual possession of the plots. The second action for ejectment related to plots Nos. 1972, 2504, 22, 413, 462, 524 and 57. The suit was decreed on the 9 of March 1907 by Babu Anrudh Lal Mahendar. The operative words of the decree are: A decree for ejectment in favour of the plaintiff, be passed against the defendants". The plaintiffs did not appeal against the decree and it became final. Having regard to the concurrent finding of both the Courts below that the plaintiffs are in possession of these plots it must be assumed that the zamindar in spite of the decrees in his favour did not get actual possession. Subsequent to the ejectment proceedings the plaintiffs on the 1 of June 1907 instituted the suit which has led to this appeal, impleading the zamindar and the original exproprietry tenants as defendants for a declaration that the compromise entered into between the zamindar and the occupancy tenants so far as it prejudiced their rights as mortgagees was not binding on them. They in their plaint alleged that it was entered into fraudulently. The main defence was that they were bound by the Revenue Court proceedings. The first issue framed by the Court of first instance was : was the compromise dated the 11 of July 1904 bona fide and binding on. these plaintiffs or was it collusive (and effected) to defeat plaintiffs rights as mortgagees?" The Court of first instance decreed the claim relating to the plots which formed the subject-matter of the first ejectment proceedings, coming to the conclusion that the appeal from the decree of the first Court lay to the District Judge and not to the Commissioner and that therefore the decree of the Commissioner was ultra vires. Regarding the plots covered by the second ejectment proceedings the suit was dismissed by the learned Munsif on the ground that the plaintiffs were ejected by the decree of Babu Anrudh Lal and that they allowed that decree to become final. In the preparation of the decree plot No. 57 was omitted by an oversight. Both the plaintiffs and the defendant Ramdhari Rai zamindar, appealed. to the lower appellate Court. The lower appellate Court in disposing of the appeal of Ramdhari Rai zamindar confirmed the decree of the first Court save as to plot No. 57 which by some oversight was omitted from the decree. The appeal of the plaintiffs to the lower appellate Court was also dismissed. In the memorandum of appeal presented by the plaintiffs to that Court the pleas raised were that the proceedings taken by the defendants were based on fraud and that the decision of Babu Anrudh Lal being ultra vires was inoperative against the plaintiffs. The reasons which led the lower appellate Court to dismiss those appeals as they appear from its judgment are: that the judgments of the first Court in both the ejectment suits are final and operate as resjudicata against both parties and that the decree of the Commissioner is ultra vires. Both parties have preferred second appeals to this Court. The grounds of appeal taken by the defendant in Second Appeal No. 235 of 1908 are, that the decision of the Commissioner to whom an appeal lay is binding on the parties, that as the mortgage of plot No. 224 was effected subsequent to the Agra Tenancy Act coming into operation, no rights have arisen in respect thereof in favour of the plaintiffs and that No. 57 should not have been omitted from the decree of the lower appellate Court. The pleas in the memorandum of appeal in Second Appeal No. 240 of 1908 of the plaintiffs are, that the suit being based on fraud and collusion it is within the jurisdiction of the Civil Courts exclusively, that the decree passed by Babu Anrudh Lal being ultra vires cannot operate as res judicata and that the plaintiffs being in possession as mortgagees cannot be ejected by the Revenue Court. Regarding the first ground of appeal in Second Appeal No. 233 of 1908, I am of opinion that the suit out of which this appeal has arisen is exclusively within the jurisdiction of the Civil Court. The relief sought in it is to have it declared that a compromise entered into collusively is not binding on the plaintiffs. Such a suit cannot be entertained, by the Revenue Courts. As to the proceedings in the Revenue Court for the ejectment of the plaintiffs, my opinion is that the decree for their ejectment which was obtained on the ground that they were the sub-lessees of the exproprietary holding and that the decree for ejectment was Hinted to their ejectment as sub-tenants and could not in any way effect the ejectment of the plaintiffs as mortgagees. The Revenue Court can only eject a tenant. It has no jurisdiction to eject a mortgagee from an exproprietary tenant, and if the exproprietary tenant during the subsistence of the mortgage with possession relinquishes his holding to the prejudice of his mortgagee his relinquishment so far as the mortgagee with possession is concerned is inoperative; see Rannu Rai V/s. Rafi-ud-din A.W.N. 1904. p. 170. Moreover, it is to be noticed that according to the finding of the lower appellate Court the plaintiffs are still in possession and have not yet been actually ejected in pursuance of the decree for ejectment. Under these circumstances the decree of the Commissioner is in no way binding on the plaintiffs as mortgagees with possession. The decree passed by Babu Anrudh Lal, I am of opinion, is also not binding on the plaintiffs who have been found to be in possession of the plots covered by that decree and who as mortgagees could not under that decree to ejected from those plots. In this view of the case the plaintiffs who are in possession of plot No. 57 are entitled to hold it as mortgagees with possession and the plea in appeal by the defendants as to plot No. 57 has no force.

(2.) Plot No. 224 no doubt was mortgaged after the Agra Tenancy Act had come into force and its mortgage under Secs.20 and 21 of the said Act is, therefore, void; see Ram Sarup V/s. Kishan Lal A.W.N. 1907 p. 76. The learned vakil for the respondents, however contends as follows : Such a mortgage is only voidable and not void, for if it bad been void and not merely voidable Section 31 of the said Act would have been unnecessary inasmuch as a void transfer can have no legal effect and the land-holder need take no trouble to have it avoided in the manner provided by Section 31. As the mortgage is only voidable and as the zamindar land-holder took no steps within one year to have it avoided under Section 31 of the Agra Tenancy Act not only his remedy but also his right under Section 28 of the Indian Limitation Act (XV of 1877) became extinguished; see Dalip Rai v. Deoki Rai 21 A. 204. There is much force in this contention but in deference to the ruling in Ram Sarup V/s. Kishan Lal A.W.N. 1907 p. 76 the learned vakil for the respondent consents to let the appellant Ramdhari Rai have a decree for plot No. 224, The appeal, therefore, with the exception of the plea taken regarding plot No, 224 fails and is dismissed with costs, including the fees in this Court on the higher scale.

(3.) Regarding the connected Appeal No. 240 of 1908 I am of opinion that it must prevail. The suit, as I have already stated, was brought for a declaration that a compromise entered into between the zamindar and the original exproprietary tenants was collusive and was not binding on the plaintiffs. The zamindar could not go to the Revenue Court for the ejectment of the mortgagees with possession of an exproprietary holding, because the power given to the Revenue Court in cases of ejectment is limited to the cases in which the relation of landlord and tenant subsists between the parties. A Revenue Court has no authority to eject the mortgagees with possession of an exproprietary holding. The decree of Babu Anrudh Lal, therefore, so far as it aimed at ejecting the plaintiffs as mortgagees with possession, was certainly ultra vires. I, therefore, decree the appeal of the plaintiffs, i.e., Second Appeal No. 240 of 1908, with costs including the fees in this Court on the higher scale, set aside the decrees of both the Courts below and decree the plaintiffs claim for the relief (a) sought in his plaint. They of course will not be entitled to have possession of plot No. 224, the mortgage of which was void.