9911796707
TMI Blog1972 (10) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 No. 1 to 6 along with Lachhman Singh plaintiff No. 7 filed the present suit for possession of the land in dispute against Rain 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 land-lord) in favour of plaintiffs to . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to sue for possession of land on payment of the mortgage' money and that their suit was barred by limitation. The above submissions have been controverted by Mr. Dikshit on behalf of the plaintiff-respondents, and he has canvassed for the correctness of the view taken by the High Court. Before dealing further with the matter, we may refer to some of the statutory provisions which have been referred to by Mr. Agarwal. Sub-section (1) of section 33 of the U.P. Tenancy Act, (1) A.I.R. (31) 1944 Allahabad 25. (2) A.I.R. (37) 1950 Allahabad 604. 838 1939 (U.P. Act No. 17 of 1939) (hereinafter-referred to as the Act of 1939) provides, inter alia, that the interest of an occupancy tenant is not transferable, otherwise than in accordance with the provisions of the Act. According to sub-section (1) of section 44 of that Act, every transfer, other than a sub-lease, made by a tenant in contravention of the provisions of this Act, shall be void. Section 45 of the above mentioned Act deals with the extinction of tenancy, and according to clause (c) of the section, the interest of a tenant shall be extinguished subject to the provisions of sections 82 to 88 by surrender. Surrender b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the rights which the 7th plaintiff Lachhman Singh retained after executing the void mortgage in 1923 and putting the first defendant in pos session." It is urged by Mr. Agarwal that though plaintiff No. 7 surrendered his occupancy rights in favour of the landlord, the effect of that was not only the extinction of the occupancy rights but also the extinction of the mortgage in favour of the defendant-appellants. The possession of the land in dispute by the defendant-appellants thereafter was as trespassers. A suit against them, according to Mr. Agarwal, should have been brought in the Revenue Court by the plaintiff-respondents, in whose favour fresh occupancy rights had been created by the land-lord, within two years under section 180 read with item 18 of Fourth Schedule of Act of 1939. As no suit was brought within the prescribed time against defendant appellants and as they remained in adverse possession of the land for a period of more than 12 years, the present suit brought by the plaintiffrespondents, it is submitted, was barred by time. We are unable to accede to the, above contention, because we find that the matter is covered by two Full Bench decisions of the Allahabad H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding 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 court not strictly bound itself by the decision. In the light of the above mentioned Full Bench decisions, it cannot, be disputed that the status of the defendantappellants 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 Laclihman Singh plaintiff No. 7. It is urged that after the surrender of the occupancy rights by Lachhman 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
