Case: Raj Narain Pandey &amp; Ors Vs. Sant Prasad Tewari &amp; Ors

Court in the case of AIR 1944 All 25 (supra) and found that the following five propositions had been laid down in the earlier case:"(1) That the usufructuary mortgage of an occupancy holding by a tenant is void and not voidable.(2) That a mortgagor after giving possession to the mortgagee cannot recover possession of the holding without paying the money which he had taken from the mortgagee.(3) That a mortgagee of an occupancy holding by remaining in possession for over 12 years does not extinguish the rights of the mortgagor to redeem him and by such possession the mortgagee only prescribes for mortgagee rights.(4) That it is open to the mortgagor to seek possession of the holding by tendering the consideration which he had received and he may do so by a redemption suit.(5) The relationship which comes into existence as a result of the mortgage of an occupancy holding and its possession being transferred to the mortgagee, though not strictly speaking that of a mortgagor and a mortgagee, is analogous to that relationship, and the action which is raised by the mortgagor to recover possession of the holding on payment of the money due to the mortgagee, though not strictly in the nature of a redemption, is analogous to a redemption suit."It was also observed that to take a contrary view from the law laid down in those five propositions would have the effect of unsettling the law established for a number of years. Mr. Agarwal has not questioned the correctness of the above mentioned five propositions and, in our opinion, rightly so. In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M. R. in the case of Brownsea Haven Properties v. Poole Coron. (1958) Ch 574, there is well-established authority for the view that a decision of long standing on the basis of which many persons will in the course of time have arranged their affairs should not lightly be disturbed by a superior could not strictly bound itself by the decision.9. In the light of the above mentioned Full Bench decisions, it cannot be disputed that the status of the defendant-appellants was analogous to that of mortgagees. It also cannot be disputed that the successor of the original mortgagor would be entitled to recover possession of the mortgaged land from the defendant-appellants on payment of the mortgage money.Mr. Agarwal, however, submits that plaintiff-respondents 1 to 6 are not the successors of Lachhman Singh plaintiff No. 7. It is urged that after the surrender of the occupancy rights by Lachman Singh, the plaintiff-respondents cannot ask for redemption of the mortgage created by Lachhman Singh. This contention, in our opinion, is not well founded. The copy of the compromise decree dated January 4, 1946 / February 2, 1945 has been placed on record, and it would appear therefrom that in a suit brought by the plaintiff-respondents 1 to 6 against the landlords and Lachhman Singh (who was described in that suit as Lachhman Rai), the plaintiffs 1 to 6 were accepted to be occupancy tenants of the land in dispute. The effect of that decree was that while the occupancy rights of Lachhman Singh came to an end, those of plaintiff-respondents 1 to 6 came into existence at the same time. As plaintiff-respondents 1 to 6 became the occupancy tenants, of the land in dispute, they were, in our opinion, entitled to redeem the land from the mortgagees. The material on record also indicates that plaintiff-respondents 1 to 6 have been declared to be the Bhumidars of the land in dispute.Sanad dated October 5, 1949 declaring them to be Bhumidars of the land was issued on October 5, 1949.As plaintiff-respondents 1 to 6 were the occupancy tenants of the land in dispute and as they were declared to be Bhumidars, they had, in our opinion, sufficient interest in the land as clothed them with the right to redeem it from the mortgagees. Clause (a) of Section 91 of the Transfer of Property Act provides, inter alia, that any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same, may institute a suit for redemption of the mortgaged property. The case of the plaintiffs, who were the occupancy tenants and Bhumidars of the land in dispute, is clearly covered by clause (a) of Section 91 of the Transfer of Property Act. The fact that the present suit has been filed not by the occupancy tenant who mortgaged the property but by others in whom the occupancy rights were subsequently vested would, in our opinion, make no difference and would be no bar to the maintainability of the suit. It is significant in this context to observe that plaintiffs 1 to 6 become the occupancy tenants of the same land of which Lachhman Singhs father was the occupancy tenant at the time of the mortgage.10. It has also been argued by Mr. Agarwal that the suit for possession brought by the plaintiff-respondents was not maintainable in a civil Court and could only be tried by a revenue Court. Apart from the fact that no such plea was taken in the written statement or in the trial Court or the first appellate Court, we find that the five-judge bench of the Allahabad High Court in the case of Mahabal Singh AIR 1950 All 604 (supra) has held that such a suit is maintainable in a civil Court. We see no cogent ground to disturb that view.11

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. In the light of the above mentioned Full Bench decisions, it cannot be disputed that the status of the defendant-appellants was analogous to that of mortgagees. It also cannot be disputed that the successor of the original mortgagor would be entitled to recover possession of the mortgaged land from the defendant-appellants on payment of the mortgage money.Mr. Agarwal, however, submits that plaintiff-respondents 1 to 6 are not the successors of Lachhman Singh plaintiff No. 7. It is urged that after the surrender of the occupancy rights by Lachman Singh, the plaintiff-respondents cannot ask for redemption of the mortgage created by Lachhman Singh. This contention, in our opinion, is not well founded. The copy of the compromise decree dated January 4, 1946 / February 2, 1945 has been placed on record, and it would appear therefrom that in a suit brought by the plaintiff-respondents 1 to 6 against the landlords and Lachhman Singh (who was described in that suit as Lachhman Rai), the plaintiffs 1 to 6 were accepted to be occupancy tenants of the land in dispute. The effect of that decree was that while the occupancy rights of Lachhman Singh came to an end, those of plaintiff-respondents 1 to 6 came into existence at the same time. As plaintiff-respondents 1 to 6 became the occupancy tenants, of the land in dispute, they were, in our opinion, entitled to redeem the land from the mortgagees. The material on record also indicates that plaintiff-respondents 1 to 6 have been declared to be the Bhumidars of the land in dispute.Sanad dated October 5, 1949 declaring them to be Bhumidars of the land was issued on October 5, 1949.As plaintiff-respondents 1 to 6 were the occupancy tenants of the land in dispute and as they were declared to be Bhumidars, they had, in our opinion, sufficient interest in the land as clothed them with the right to redeem it from the mortgagees. Clause (a) of Section 91 of the Transfer of Property Act provides, inter alia, that any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in or upon the right to redeem the same, may institute a suit for redemption of the mortgaged property. The case of the plaintiffs, who were the occupancy tenants and Bhumidars of the land in dispute, is clearly covered by clause (a) of Section 91 of the Transfer of Property Act. The fact that the present suit has been filed not by the occupancy tenant who mortgaged the property but by others in whom the occupancy rights were subsequently vested would, in our opinion, make no difference and would be no bar to the maintainability of the suit. It is significant in this context to observe that plaintiffs 1 to 6 become the occupancy tenants of the same land of which Lachhman Singhs father was the occupancy tenant at the time of the mortgage.10. It has also been argued by Mr. Agarwal that the suit for possession brought by the plaintiff-respondents was not maintainable in a civil Court and could only be tried by a revenue Court. Apart from the fact that no such plea was taken in the written statement or in the trial Court or the first appellate Court, we find that the five-judge bench of the Allahabad High Court in the case of Mahabal Singh AIR 1950 All 604   (supra) has held that such a suit is maintainable in a civil Court. We see no cogent ground to disturb that view.