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Case Number

Second Appeal No. 1103 of 1958, against decree of Civil J., Ballia, D/- 20-2-1958

Attorney(S)

R. B. Misra
M. H. Beg

Judges

Kailash Prasad, J.

Acts

Section 66 of the Amending Act (16 of 1953) clause (c) of Section 202
Section 202(c) of the U.P.Z.A and L.R Act that section
Section 64 of the U.P Amending Act (20 of 1954).
TRANSFER OF PROPERTY ACT
U.P Land Reforms Amendment Act (18 of 1956),
Section 180 of the U.P Tenancy Act
U.P Agriculturists Relief Act
Section 21(1)(d)

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Smart Summary

Structured Summary of the Opinion (Kailash Prasad, J.)

Factual and Procedural Background

The opinion arises from a suit for possession. The two courts below found that Dhari Koeri (ancestor of the plaintiffs) and Sit Basant were occupancy tenants of the holding that included the plot in suit, and that they had granted an usufructuary mortgage of the plot in favour of Rekha Koeri (predecessor-in-interest of the defendants of the first set) in 1920. On that basis, the courts below decreed the plaintiffs' claim for possession, subject to the plaintiffs paying the mortgage money to the defendants of the first set within a specified time. The present appeal was filed by a successor-in-interest of the original mortgagee (a defendant).

Legal Issues Presented

Whether a mortgage of an occupancy holding being void makes the mortgagee a trespasser (so that ejectment is possible only under Section 180 of the U.P. Tenancy Act in the Revenue Court).
Whether persons in possession under such an (invalid) mortgage acquire the status of "Asami" under Section 21(1)(d) of the U.P. Zamindari Abolition and Land Reforms (U.P.Z.A and L.R.) Act, entitling them to protection and requiring ejectment proceedings under Section 202(c) of that Act in the Revenue Court.
Whether the Munsif ought to have referred the question of the defendants being Asamis to the Revenue Court as required by Section 332-B (where that provision was later introduced).
Whether a plaint that does not specify Section 202(c) of the U.P.Z.A and L.R. Act is thereby invalid or prevents the suit from being treated as one under Section 202(c).
Whether a suit under Section 202(c) is maintainable if the plaintiff has not deposited the mortgage money in Court or established that the mortgage money has already been satisfied prior to filing.

Arguments of the Parties

Appellant's Arguments (defendant / successor-in-interest of mortgagee)

The usufructuary mortgage of an occupancy holding is void; consequently the mortgagee who entered must be treated as a trespasser and can be ejected only by a suit under Section 180 of the U.P. Tenancy Act in the Revenue Court.
The mortgagees became Asamis within the meaning of Section 21(1)(d) of the U.P.Z.A and L.R. Act and thus could be ejected only by a suit under Section 202(c) of that Act in the Revenue Court.
The Munsif should have referred the question of the defendants being Asamis to the Revenue Court in accordance with Section 332-B (as contended by appellant's counsel).
The plaint did not state that the suit was instituted under Section 202(c) and sought only possession by redemption of the mortgage; therefore, the suit cannot be treated as one under Section 202(c).
The suit is not maintainable because the plaintiffs did not deposit the mortgage money in Court prior to filing and the courts below found that the mortgage money was not satisfied — so the suit should be dismissed.

Respondents' / Plaintiffs' Position

The plaintiffs sought a decree for possession by redemption of the mortgage and alleged that the mortgage money had been satisfied; they relied on the Court of first instance's treatment of the plaint as conforming to a suit under Section 202(c).
Although the plaintiffs did not deposit the mortgage money before instituting the suit, they alleged satisfaction of the mortgage money — and the courts framed relief in terms of possession being granted provided the plaintiffs deposit the mortgage money in Court within a specified time.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lallu Singh v. Ram Nandan, 1930 All LJ 56 at p. 161 (AIR 1930 All 136 at p. 139)	Explained that a sub-tenant and an usufructuary mortgagee can be placed on the same footing; the usufructuary mortgagee of an occupancy holding, though the mortgage is not valid with all incidents, may retain possession and enjoyment as agreed and is not to be treated as a trespasser.	The Court relied on this authority to hold that an usufructuary mortgagee of an occupancy tenancy is not a trespasser and that a creditor who entered into possession under an invalid mortgage cannot claim rights greater than those created by the invalid transaction.
Bishwanath Singh v. Sunder, S.A. No. 737 of 1958 Dated 5-9-1962 (All)	Held that the expression "mortgagee in possession" in Section 21(1)(d) does not necessarily refer to a creditor who entered into possession under a valid mortgage; the legislature used the term to describe the factual relationship irrespective of legal validity of the mortgage.	The Court applied this holding to conclude that the mortgagees in the instant case acquired the status of Asamis under Section 21(1)(d) even though the mortgage itself was invalid as a formal mortgage.

Court's Reasoning and Analysis

The Court proceeded through the contested points in sequence, applying statutory interpretation and precedent from earlier decisions:

On the contention that an invalid (usufructuary) mortgage renders the mortgagee a trespasser: the Court relied on prior authorities (notably Lallu Singh v. Ram Nandan) to explain that although an usufructuary mortgage of an occupancy holding is not valid as a mortgage "with all its incidents," the person inducted into possession under such an arrangement is not to be treated as a trespasser. The possession and enjoyment that arise from the arrangement are analogous to sub-lease or similar transfer of possession; consequently the mortgagee in possession cannot claim title or rights beyond those created by the invalid transaction.
On whether those in possession under the invalid mortgage became "Asamis" under Section 21(1)(d) of the U.P.Z.A and L.R. Act: the Court referred to its prior decision in Bishwanath Singh v. Sunder, holding that the phrase "mortgagee in possession" in the statute is used descriptively of the factual relationship and does not depend on the formal validity of the mortgage. Therefore the mortgagees in this case did acquire the status of Asamis under Section 21(1)(d).
On the procedural question whether, because the defendants are Asamis, ejectment could be ordered only by a Revenue Court under Section 202(c): the Court examined the timing of jurisdictional amendments. The Munsif decided the suit on 7-12-1953 at a time when the Civil Court had cognizance. A later amendment (1956) conferring jurisdiction on the Revenue Court was not made retrospective. The Court invoked the principle that an amendment which would cause multiplicity of suits should not be given retrospective effect unless the legislature clearly intended it. Consequently, the amended jurisdiction did not affect the present matter decided by the Civil Court before the amendment; the 1956 amendment was not retrospective.
Regarding the contention that the Munsif should have referred the Asami question under Section 332-B: the Court observed that the provision for remitting Asami issues to the Revenue Court (S.332-B) was introduced only from 6-8-1954 (by an amendment/ordinance) and was not in force when the Munsif had decided the suit. Therefore the Munsif's failure to refer did not constitute illegality.
On whether omission of an explicit reference to Section 202(c) in the plaint vitiated the suit: the Court noted there was no statutory rule requiring a plaint to specify the statutory provision under which it was filed. The proper approach is to look at the pith and substance of the plaint. The plaintiffs had alleged satisfaction of the mortgage and sought ejectment and possession; the trial court treated the suit as one under Section 202(c). The appellate court held that the substance of the plaint conformed to requirements of S.202(c) and so the absence of explicit mention did not vitiate the suit.
On whether deposit/satisfaction of the mortgage money was a pre-condition to maintain the suit: the Court held that satisfaction or deposit of mortgage money is not a pre-requisite to institute the suit; it is a pre-requisite to the actual ejectment of the Asami. Section 202(c) makes an Asami liable to ejectment on satisfaction or deposit of mortgage money. The courts below framed relief so that plaintiffs would be entitled to possession only if they deposited the mortgage money in Court within the time specified. The Court rejected the defendant's interpretation that the absence of pre-filing deposit or a preliminary declaration of the amount would require dismissal, noting such interpretation would give rise to multiplicity of suits (first for declaration of amount due, then another for possession after deposit).

Holding and Implications

CORE HOLDING: APPEAL DISMISSED.

Direct consequences for the parties:

The decree of the courts below stands: the plaintiffs' claim for possession is decreed on condition that they deposit the mortgage money in Court within the specified time. The defendant/mortgagee in possession (though the mortgage was invalid as a formal mortgage) is not treated as a trespasser and had the status of Asami under Section 21(1)(d).
The procedural objections raised by the appellant — including the jurisdictional challenge based on later amendments, the absence of explicit reference to Section 202(c) in the plaint, and the non-deposit of mortgage money before filing — were rejected for the reasons given in the analysis above.

Broader implications: The Court did not purport to lay down a novel rule beyond applying and reaffirming earlier authorities on the legal position of persons in possession under invalid usufructuary mortgages of occupancy holdings and on the correct procedural approach to jurisdictional amendments and the pith and substance of pleadings. The decision preserves the effect of the trial court's decree subject to the deposit condition and does not indicate that a new precedent was created.

Disposition: The appeal was dismissed with costs.

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Janki Koeri v. Jamuna Koeri .

Kailash Prasad, J.:— This is a defendant's second appeal which arises from a suit for possession. The two Courts below found that Dhari Koeri, ancestor of plaintiffs and Sit Basant were the occupancy tenants of the holding in which the plot in suit was included and they granted an usufructuary mortgage of the plot in suit in favour of Rekha Koeri, predecessor-in-interest of defendants 1st set, in the year 1920. The Courts below, therefore, decreed the plaintiffs claim for possession over the plot in suit on payment of the mortgage money to defendants 1st set within a specified time.

2. The present appeal has been filed by one of the successors-in-interest of the original mortgagee. One of the points raised by the appellant is that the mortgage of occupancy holding being void, the position of the defendant-appellant became that of a trespasser and he can be ejected, if at all, only by a suit under Section 180 of the U.P Tenancy Act in the Revenue Court. The contention has no force. It has been consistently held by this Court that though the mortgage of an occupancy holding is void, yet the position of the mortgagee inducted to the property under the invalid mortgage is not that of a trespasser. His position, though not, strictly that of a mortgagee under the provisions of the Transfer of Property Act, is nonetheless analogous to it. In Lallu Singh v. Ram Nandan, 1930 All LJ 56 at p. 161 : (AIR 1930 All 136 at p. 139), Mukerjl, J., interpreting an earlier Full Bench decision of this Court, pointed out that a sub-tenant and an usufructuary mortgagee can be placed on the same footing. Niamatullah, J., who was also a member of that Full Bench, observed that the transaction of an usufructuary mortgage of an occupancy holding was not valid as a mortgage with all its incidents and subject to the provisions of law relating to usufructuary mortgages, but is valid only so far that the mortgagee could retain possession and enjoy It, as agreed between the parties, a feature which is not peculiar to usufructuary mortgage as such, but was also one of sub-lease or other arrangement under which possession of occupancy holding was made over by the tenant to another without creating an interest or charge in favour of the transferee. In the light of these abundant authorities it is perfectly clear that an usufructuary mortgagee of occupancy tenancy is not a trespasser. Although the mortgage of occupancy holding is not permitted under law, yet the creditor who enters into possession under the invalid mortgage cannot prescribe to any title or rights different from or greater than those created under the invalid transaction through which he was inducted to the property.

3. Another contention of the appellants, and in tact the one on which main stress was laid by his counsel, is that the mortgagees became Asamis under Section 21(1)(d) of the U.P.Z.A and L.R Act and as such they cannot be ejected from the plot in dispute except by a suit in the Revenue Court under Section 202(c) of the U.P.Z.A and L.R Act. In the appeal before the lower Appellate Court the defendant raised this point, but the learned Civil Judge held that a mortgagee who was in possession under the invalid mortgage prior to the date of vesting, could not claim to be an Asami under Section 21(1)(d) of the U.P.Z.A and L.R Act. This view does not appear to be correct I have already held in Bishwanath Singh v. Sunder, S.A No. 737 of 1958 D/- 5-9-1962 (All), that ‘mortgagee in possession’ within the meaning of Section 21(1)(d) does not necessarily refer to a creditor who enters into possession under a valid mortgage. The expression ‘mortgagee’ in the section has been used by the legislature to describe the factual relationship irrespective of the fact whether the transaction is or is not valid as a mortgage with all its incidents and characteristics of a legally valid mortgage. I, therefore, hold that the mortgagees in the instant case acquired the status of Asamis under S. 21(1)(d).

4. It was next contended that as a result of the findings of the Courts below that the land was mortgaged with the defendants, they became Asamis under Section 21(1)(d) of the U.P.Z.A and L.R Act the defendant, therefore, can be ejected only by a suit instituted in Revenue Court under Section 202(c) of the Act.

5. The contention does not appear to be correct. The law, as it stands at present, confers jurisdiction on the Revenue Court to entertain a suit for the ejectment of an Asami. But the Munsif decided this suit on 7-12-1953 and at that time the suit was cognizable by the Civil Court. A subsequent amendment of Sch. II of U.P Agriculturists Relief Act made in 1956 conferred jurisdiction on an Assistant Collector first class to try such a suit. In my view that amendment will have no effect on the suit from which the present appeal arises. A predominent principle of construction is that a rule of law should be interpreted in such a manner as to avoid, multiplicity of suits. Where Civil Court had jurisdiction to try a suit and in exercise of that jurisdiction the Civil Court of first instance decided it, but during the pendency of the appeal the law was amended so as to take away the jurisdiction of Civil Court and confer it upon Revenue Court, the amended law is not to be applied in determining the appeal. To do so would mean applying the amended law retrospectively with the resultant consequence of multiplicity of suits. Unless the legislature clearly intended the amended law to be retrospective, it should not be given a retrospective effect when it leads to multiplicity of suits. There is nothing in the amendment of 1953 to indicate that the legislature meant it to be retrospective.

6. In Sch. II, as originally framed, suits under Sec. 202(c) were mentioned at serial No. 8 in the category of cases which were cognizable by an Assistant Collector first class. By Section 66 of the Amending Act (16 of 1953) clause (c) of Section 202 was deleted from the class of cases cognizable by Assistant Collector first class and it was specifically provided that the amendment was being made with retrospective effect from July 1, 1952. When in 1956 a suit under cl. (c) of Section 202 was again included in the category of cases triable by an Assistant Collector first class by the U.P Land Reforms Amendment Act (18 of 1956), it was not laid down that the amendment was to be retrospective. This clearly shows that the amendment of 1956 conferring jurisdiction on the Revenue Court was not meant to be retrospective.

7. It was further argued by the learned counsel for the appellant that the Munsif should have referred to the Revenue Court for decision the question of defendants being Asamis as was required by S. 332-B.

8. The section is no longer on the statute. It was added by Section 64 of the U.P Amending Act (20 of 1954). Earlier the very same section was added by para 6 of the U.P Amending Ordinance (Ordinance II of 1954), which came into force from 6-8-1954. Thus the procedure for remitting an issue relating to the question of Asami to the Revenue Court was introduced on 6-8-1954. This provision was not in existence when the Munsif decided the suit the Munsif, therefore, did not commit any illegality in not referring to the Revenue Court for decision the question of defendants being Asamis.

9. Another contention of the defendants was that the suit filed by the plaintiffs cannot be treated as one under Section 202(c) of the U.P.Z.A end L.R Act; because in the relief claimed by the plaintiffs it was stated that a decree for possession be granted by the redemption of the mortgage and there was no mention in the plaint that the suit was being instituted under Section 202(c) of the U.P.Z.A and L.R Act.

10. I Have not been referred to any statutory provision or rule requiring a plaintiff to specify in the plaint the section under which he files a suit. It cannot, therefore, be said that the absence of reference to Section 202(c) in the plaint vitiates the suit. No doubt, the relief asked for is a decree of possession by redemption of the mortgage, but this alone cannot be a sufficient ground for holding that the suit is not one under Section 202(c) of the U.P.Z.A and L.R Act that section does not prescribe any particular form of the plaint. In order to determine the nature of a suit we have to see the pith and substance of the plaint. In the ultimate analysis of the allegations in the plaint, the claim is for possession over land. What a plaintiff is required to do in a suit under Section 202(c) is nothing more than to claim possession by the ejectment of the defendants on the ground that the mortgage money has been satisfied or the amount has been deposited in Court. In the instant case the plaintiffs did aver in the plaint that the mortgage money was satisfied and that the defendants be ejected and the plaintiffs be put in possession of the land. The substance of the plaint thus conforms to the requirements of a suit under S. 202(c). In determining the nature of a suit a Court should look to the substance of the plaint rather than its mere form. While deciding issue No. 9, the Court of first instance held that the defendant had acquired the status of Asami under Sec. 21(1)(d) of Act No. 1 of 1951 and then it decreed the claim for possession. This clearly shows that the Court of first instance treated the suit to be one under S. 202(c). It is too late in the day to urge anything to the contrary.

11. Lastly, it was pointed out on behalf of the defendant-appellant that the grounds on which the suit under Section 202(c) can be filed is that the mortgage has been satisfied or the mortgage money has been deposited. In Court. The learned counsel argued that if none of these conditions were fulfilled, the suit could not be maintained. He further elaborated the point by urging that the plaintiff did not deposit the mortgage money before filing the suit and it was found that the mortgage money was not satisfied and so the suit should be thrown out.

12. Of course, the plaintiff did not deposit the mortgage money in Court before instituting the suit. He came with the allegation that the mortgage money was satisfied and that allegation was found to be incorrect such a finding cannot, however, entail the dismissal of the suit Satisfaction of mortgage money is not a pre-requisite of the filing of the suit. It is only a pre-requisite to the ejectment of the defendant; because Section 202(c) lays down that an Asami shall be liable to ejectment on the ground that the mortgage money has been satisfied or the amount has been deposited in the Court. The decree passed by the Courts below is to the effect that the plaintiff shall be entitled to possession provided he deposits the mortgage money in Court within a specified time. This clearly implies that the defendant is not to be ejected unless the mortgage money is deposited in Court.

13. The interpretation suggested by the defendant has to be rejected for another reason also. It is this that it will lead to multiplicity of suits.

14. As this was a genuine dispute between the mortgagor and mortgagee as to the amount due under the mortgage, the mortgagor will first have to file a suit, if the defendant's interpretation is accepted, seeking a declaration as to the amount that might be found due in respect of the mortgage. After getting the amount declared, he will have to file another suit for possession after depositing in Court the amount declared to be due. This will involve unnecessary multiplicity of suits.

15. The appeal has no force and is dismissed with costs.

EG/N/D.V.C

16. Appeal dismissed.

Janki Koeri v. Jamuna Koeri .

Structured Summary of the Opinion (Kailash Prasad, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (defendant / successor-in-interest of mortgagee)

Respondents' / Plaintiffs' Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Janki Koeri v. Jamuna Koeri .

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