MIAN FEROZ SHAH Vs. MOHAMMAD AKBAR KHAN

JUDGEMENT

(1.) This appeal is brought by the plaintiff from a decision (23 May 1936) of the Court of the Judicial Commissioner for the North-West Frontier Province affirming a decree of the Subordinate Judge of Peshawar dated 25 March 1935, whereby the appellant was awarded Rs. 8110. The appellant complains of this sum as inadequate; partly, but not solely, on the ground that a three-year period of limitation has been applied to his claim and not a six-year period under Art. 120 of the Schedule to the Limitation Act of 1908. On 12 March 1917 one Sohbat Khan, who was the owner of a considerable area of land in the village of Sheikhu in the Peshawar District, mortgaged 1011 kanals 8 marlas of his land to the appellant and his brother. The mortgage was for a term of 10 years and was a mortgage with possession, the sum secured being Rs. 44,233. Possession was not, in fact, taken by the mortgagees, but by a second document of even date the mortgaged land was leased by the mortgagees to Sohbat Khan for the same term at a rent of Rs. 1224 per annum which was taken to represent the yearly interest on the mortgage debt. The appellant, for reasons which need not here be detailed, became solely entitled to the mortgage. On 31 March 1920 the respondent obtained against Sohbat Khan a money decree and thereafter applied for and obtained attachment of the land above mentioned and of certain other land. As Sohbat Khan was a member of an agricultural tribe the sale of his land was prohibited by Section 16, Punjab Alienation of Land Act, 1900. On some date prior to June 1927, which does not appear from the record, the Naib Tehsildar of Charsadda was appointed by the Revenue Court to be receiver of the land of Sohbat Khan, including the 1011 kanals now in question. On 6 June 1927 the receiver applied to the Court of the Collector for a warrant of possession in order that he might lease out the land and thereby realize money on account of the respondent's judgment debt. An order for possession was granted on 16 June 1927, and on 21 July 1927 possession of the land was delivered to the receiver. The appellant, on 16 August 1927, lodged objections against this in the Court of the Collector, but his objection was disallowed by an order dated 17 May 1928, on the ground that the appellant, though the mortgagee, was not in possession of the land; and execution was permitted to proceed, subject to any order that might be obtained in a civil suit.

(2.) It appears that in 1924 the appellant's mortgage of 1917 had been renewed at a higher figure and that a new lease of the land to Sohbat Khan was granted by the appellant for four years at a rent of Rs. 2000, with conditions which entitled the appellant to cancel the lease in the event of failure to pay the stipulated rent or to comply with any other term of the lease. This lease by its terms extended until June or July 1928. In July 1928 the receiver reported to the Assistant Commissioner of Charsadda that a proper rent for the land of which he had obtained possession would be Rs. 3000, and prayed for sanction to the grant of a lease to four named persons in equal shares for a period of one year. This lease was sanctioned and was continued from time to time. On 25 April 1929 the appellant sued, in the Court of the District Judge, Peshawar, Sohbat Khan, the present respondent, the lessees and the respondent's brother, asking that it might be declared that the land was not liable to attachment at the instance of the respondent, and asking for possession of the land by ejectment of the receiver. By his plaint, the appellant, among other reliefs, claimed a declaration that the relation of landlord and tenant still subsisted between himself and Sohbat Khan. This suit, on 22 August, 1929, was dismissed by the District Judge and an appeal to the Judicial Commissioner's Court was dismissed on 8 March 1930. The Judicial Commissioner held that the present appellant was not entitled to obtain a decree for possession of the land because his mortgage from Sohbat Khan was not a usufructuary mortgage, but only a simple mortgage which did not entitle him to possession of the land. The matter was taken on appeal to His Majesty in Council, and the judgment of this Board, delivered on 11 April 1933, was to the effect that the appellant's mortgage deed entitled him to enter into possession of the land, and that a decree should be made giving him possession as mortgagee of the 1011 kanals 8 marlas now in question and of a further 140 kanals claimed in that suit. It is a noticeable feature of the appellant's plaint in that case, that it contained no claim for damages against the present respondent in respect of the possession taken by the Receiver of the 1011 kanals 8 marlas. Indeed one of his prayers for relief was in the following terms : That in the event of the relation of landlord and tenant being held to exist between the plaintiff and defendant 1 judgment debtor, separate proceedings with regard to his ejectment and for recovery of the share of produce in accordance with the terms of the lease deed will be taken in a Court of competent jurisdiction.

(3.) On 2 August, 1933 however he brought the suit out of which the present appeal arises. In this suit the respondent is the sole defendant and the case made against him by the amended plaint is that having obtained a decree from the Revenue Court on 31 March 1920, he applied in 1920 and in 1924 for attachment of the 1011 kanals 8 marlas aforesaid; that he had done this without reserving the rights of the present appellant; that in these proceedings the Receiver had dispossessed the appellant, and that this was an illegal act for which the respondent was liable to pay to the appellant "the sum equivalent to the price of the produce as damages which should have accrued to the plaintiff from the land in dispute." Certain sums are mentioned in the plaint as due upon this basis for the period 1927 to 1933 according to the record of crops kept by the village accountant or patwari. The cause of action in respect of damages was pleaded as arising both on 10 June 1927, which is said to have been the date of the attachment, and on 19 April 1933, the date of the decision of the Privy Council. Rs. 66,000 was the figure claimed " on account of price of produce including interest on account of damages." By a further pleading, the appellant stated that the plaintiff's cause of action was not that the defendant took possession of the property against the will of the plaintiff, but that the defendant procured wrongful attachment wilfully or without caring to find out whether the plaintiff's property is attachable or not.