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

1. This appeal by special leave is directed against the judgment of Allahabad High Court whereby that Court reversed the decisions of the trial Court and the first appellate Court and awarded a decree for possession of the land in dispute in favour of the plaintiff-respondents against the defendant-appellants. The appellants were further held to be entitled to withdraw the mortgage amount which had been deposited by the respondents.2. On January 16, 1923 Ganga Prasad Rai, father of Lachman Singh plaintiff-respondent No. 7, executed a mortgage deed in respect of land in dispute for Rs. 600 in favour of Ram Cheej Pandeyd and put him in possession thereof as a mortgagee. Ram Cheej Pandey, who was impleaded as defendant No. 1 in the suit, is now dead and the appellants, who too were impleaded as defendants, are his legal representatives. Ganga Prasad Rai at the time of the mortgage was the occupancy tenant of the land in dispute. On January 6, 1955 plaintiff-respondents Nos. 1 to 6 along with Lachman Singh plaintiff No. 7 filed the present suit for possession of the land in dispute against Ram Cheej Pandey and others on the allegation that Lachhman Singh had transferred all his rights in the land with the consent and permission of the Zamindar (the landlord) in favour of plaintiffs 1 to 6. It was stated that, as a result of the said transfer, plaintiffs 1 to 6 had become the occupancy tenants of the land in dispute. The plaintiffs 1 to 6 also claimed to have acquired Bhumidari rights of the land by depositing ten times the amount of the land revenue. According to the plaintiffs, they had a right to redeem the land from the mortgagee, but as the mortgagee was not prepared to give back the land on receipt of the mortgage money, the plaintiffs were depositing the amount in Court. It was also added that plaintiff No. 7 had been joined as a co-plaintiff with plaintiffs 1 to 6 to avoid any dispute. Raj Narain Pandey, son of Ram Cheej Pandey, as well as two minor sons of Raj Narain were impleaded as defendants on the ground that the four defendants were members of the joint Hindu family and, as such, were in possession of the land in suit.3. The suit was contested by Raj Narain Pandey, Raj Narain Pandey admitted the mortgage alleged by the plaintiffs. It was, however, averred that plaintiffs 1 to 6 had no right to redeem the land. The plaintiffs suit was further stated to be barred by limitation as, according to the written statement, the defendants were in adverse possession of the land for more than 12 years.4. The trial Court found that the plaintiffs suit was not barred by time. The plaintiffs were, however, held to have no right to sue. In the result, the suit was dismissed. On appeal, learned Additional Civil Judge Ballia held that plaintiffs 1 to 6 were not the successors of plaintiff No. 7. It was further observed that the defendants, after the mortgage, had become trespassers in the land and the suit against them was barred by time. When the matter was taken up in second appeal before the High Court, the learned Judge held that in 1946 plaintiffs 1 to 6 had acquired, as a result of agreement with the Zamindar, the same rights which had vested in plaintiff No. 7 before he surrendered those rights. The learned Judge further referred to two Full Bench decisions of Allahabad High Court, namely, Ghassu v. Babu Ram, AIR 1944 All 25   and Mahabal Singh v. Ram Raj, AIR 1950 All 604   (FB) and in the light of those decisions, held that mortgagee of an occupancy holding by remaining in possession for over 12 years did not extinguish the right of the mortgagor to redeem him and by such possession the mortgagee only prescribed for mortgagee rights. It was further held that the plaintiffs were entitled to redeemd the mortgage and recover possession of the land and that the suit of the plaintiffs was not barred by time. In the result, the plaintiffs appeal was accepted, the decisions of the Courts below were set aside, and a decree for possession of the land in dispute was awarded in the plaintiffs favour. The defendants were held entitled to withdraw the mortgage amount already deposited by the plaintiffs.

Reasoning: 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.