KOER SINGH Vs. PAHALWAN SINGH

JUDGEMENT

(1.) This is the second appeal by the defendants against the decree of the lower appellate Court setting aside a decree of an Assistant Collector for the ejectment of the defendant-appellants as sub-tenants of certain plots. The plaintiffs were owners of a zemindari share in a mahal in which sir plots were situated, and these plots were originally the sir of the plaintiffs and were so recorded in F. 1332. For that year the defendants were entered as sub-tenants of 12 and 18 years. On 12th March 1913, there was a deed of mortgage by conditional sale executed by the plaintiffs of the whole of their zemindari share in this mahal in favour of the defendants. A preliminary decree was obtained by the defendants for foreclosure of that mortgage on 12 March 1922 and a final decree on 2 December, 1922 and, on 16 February 1923, the defendants obtained possession from the civil Court of the zemindari share. The plaintiffs claim that as a result of a transfer of their zemindari share the plaintiffs had become exproprietary tenants in their sir plots, and that they are entitled to eject the defendants who are still their sub- tenants. On the other hand, the learned Counsel for the appellants contends that no exproprietary tenancy arose on this transfer, because it was on a decree of foreclosure and that Section 10, Act 2 of 1901, does not refer to a decree, of foreclosure. Originally Section 7, Act 12 of 1881 provided: Every person who may hereafter lose or part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such Joss or parting.

(2.) Under that section there was a ruling in Sheobarut Rai V/s. Ram Rai [1884] A.W.N. 273, in which it was laid down that a mortgage by a deed of conditional sale resulted in the creation of exproprietary rights. In Act 2 of 1901 the language used in Section 10 is as follows: Every proprietor whose proprietary rights in a mahal or in any portion thereof, whether in any share therein, or in any specific area thereof, are transferred, on or after the commencement of this Act, either by sale in execution of a decree or order of a civil or revenue Court, or by voluntary alienation, otherwise than by gift or by exchange between cosharers in the mahal shall become a tenant with a right of occupancy in his sir land, etc. and there is a further provision that a usufructury mortgage shall be deemed to be a transfer within the meaning of this section. In the present Agra Tenancy Act, Act 3 of 1926, the wording has been made more specific and includes a decree of foreclosure, but the case before us is governed by the language of Act 2 of 1901.

(3.) The Transfer of Property Act, Section 58(c) states: Where the mortgagor ostensibly sells the mortgaged property: on condition that on default of payment of the mortgage money on a certain date sale shall become absolute, or on condition that on such payment being made the sale shall become void; or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale