SHEO SHANKAR Vs. BHUP SINGH AND ANR

JUDGEMENT

(1.) This is an appeal by the defendants arising out of a suit for recovery of possession of two plots namely, 170 and 176. situate in mauza Asadpur in the district of Etawah. On 16 August 1907 the plaintiffs executed a simple mortgage of 69 bighas and 6 biswas in favour of Joti Prasad for Rs. 1,000 and agreed to pay Rs. 50 annually by way of interest. In order to secure the payment of interest to the mortgagee, the plaintiffs transferred the plots in dispute to the possession of the mortgagee upon the understanding that the mortgagee was to appropriate the usufruct in lieu of interest to the extent of Rs. 45, and that the mortgagor was to pay Rs. 5 in cash to the mortgagee. For certain length of time, the plaintiffs cultivated the plots themselves, and continued to pay rent to the mortgagee. Later on they gave up possession of the two plots and authorized the mortgagee either to cultivate these two plots or to let them out to the tenants. In 1917, or thereabout the mortgagee let out the plots to defendants 3 and 4. The plaintiffs redeemed the mortgage on 18 August; 1926. They obtained formal possession of the plots in dispute but did not recover actual possession which continued with defendants 3 and 4-

(2.) The plaintiffs alleged that the possession of defendants 3 and 4 after the date of the redemption of the mortgage by the plaintiffs became that of trespassers and that defendants were liable to ejectment.

(3.) The Court of first instance dismissed the suit. The lower appellate Court has reversed the decision and decreed the plaintiffs suit upon the ground that the legal position of the defendants after the date of redemption of the mortgage by the plaintiffs was that of trespassers and they were not justified either in law or equity to resist the action for ejectment.