BISHESHWAR UPADHIA Vs. JAGDESHWAR PRASAD

JUDGEMENT

(1.) The plaintiffs sued to redeem a mortgage of 29 September 1902. They are successors-in-interest of Debi Prasad and Durga Prasad, who were proprietors at the time and mortgaged sir plots to Bisheshar and others. Under the Tenancy Act of 1901 prevailing at the time. Debi Prasad and Durga Prasad acquired the right to occupy the land as ex-proprietary tenants under Section 10 of that Act. They did not avail themselves of this privilege and the defendant remained in possession. In 1906 the proprietary title of the mortgagors was sold at auction and purchased by strangers who took action under Section 36, Land Revenue Act, for assessment of rent. This action was taken both against the plaintiffs and the defendant in 1908 and rent was assessed. In 1923 some of the plaintiffs sued for redemption but their suit was dismissed under Order 9, Rule 8, by reason of their absence and the presence of the defendant on the date of hearing. The present suit was subsequently brought in. 1926 by all the plaintiffs.

(2.) The lower appellate Court granted a decree for redemption and hence the defendant Bisheshwar has come here in second appeal. First of all the argument that the dismissal of the redemption suit in 1923 barred the present suit, may be examined. It was argued that this dismissal put an end to the mortgage. Such however, was not the decree. There was no decree passed putting an end to the mortgage and the mortgage therefore survived. A Privy Council ruling in the case of Shanker Bakhsh V/s. Daya Shankar [1888] 15 Cal 422 was quoted but that has no relevance. In that case it was held in the first suit that the right of redemption did not exist. Such a finding would be binding in the subsequent suit. There was no such finding in the suit of 1923. Until a mortgage has been extinguished there would be a repeated cause of action to sue for its redemption. It is only when it has been extinguished finally by a final decree for redemption or when the mortgagor fails to redeem and the property is sold that the rights of a mortgagor to redeem come to an end.

(3.) The next argument was that Bisheshwar had become tenant of the land because the mortgagors did not claim exproprietary title within six months of 29th September 1902. Various rulings were quoted as to what is to happen when on a sale of proprietary interest, or of sir land the vendor does not claim exproprietary tenancy rights within six month. No case of a mortgage was quoted. When there is a mortgage, the rights of the mortgagor to take possession on payment of the money cannot be barred because a mortgagee cannot deny the title of his mortgagor. Whatever may happen after the mortgage the mortgagee must deliver possession for the plaintiffs will lose their rights only if the purchaser of the proprietary interest had chosen to disown them and make a fresh contract of tenancy with the defendant. The zamindar was entitled to put an end to the exproprietary tenancy and to settle the land with some one else on the vendors not claiming actual physical possession of the land within six months. In the present case the zamindar has on the contrary behaved favourably to the plaintiffs in so far that he got rent assessed of the land as against the plaintiffs treating them as exproprietary tenants. When the zamindar purchaser has treated the plaintiffs as exproprietary ten-ants, the defendant cannot resist the claim of the mortgagors to take possession. So long as the mortgage existed there was no forfeiture of exproprietary rights. In my opinion redemption was rightly granted by the lower appellate Court and I dismiss this appeal with costs.