Bhagwana v. Bhagwan Das

1. In the year 1896 one Kure was a the proprietor of a certain share in Mauza Lohari, Pargana Kutana. Out of that share he mortgaged a portion consisting of a little over a bigha to the appellants. The mortgage was a usufructuary mortgage and Kure put the appellants in possession of the plots now in dispute. In the year 1907 a portion of Kure's property, covering an area of eight bighas eleven biswas was put up to auction in execution of a civil Court decree and sold. The purchasers at auction were the respondents in the present case. The purchasers went to the revenue Court and got mutation of names in their favour. They further had a rent of Rs. 44-14-2 fixed on the exproprietary holding of Kure. In the year 1912 the auction purchasers proceeded farther and obtained the ejectment of Kure from his entire exproprietary holding. Having done this they next proceeded to sue for the ejectment of the present appellants, Bhagwana and Dewana, from the two plots, Nos. 2570 and 2571. These two plots are included in the area of eight bighas eleven biswas from which Kure had been ejected.

2. The appellants in their written statement raised the point that they were mortgagee cosharers and were in possession as such and that the plots in dispute were their khudkasht. The Court of first instance accepted this plea and dismissed the suit. Thereupon the respondents, Bhagwan Das and others, appealed. The lower appellate Court held that the question for determination in the appeal was whether the respondents to this appeal were entitled to have the appellants ejected.

3. The lower appellate Court, holding that when Kure was ejected from the plots the appellants were merely trespassers, went on to hold that the plaintiffs were clearly entitled to have the defendants ejected. It acordingly allowed the appeal and decreed the plaintiffs' suit with full costs throughout. Two pleas were taken in the memorandum of appeal which the defendants have filed in this Court. Great stress is laid upon the first plea, viz., that the plaintiffs, here respondents, were not competent to eject the defendants, here appellants, in enforcement of the decree against Kure. I think no doubt can exist upon this point. Indeed it is admitted by the other side that when the mortgage in 1896 was first entered into between the parties, Kure was then zamindar and he did execute a usufructuary mortgage over the two numbers in suit and put the mortgagees in possession.

4. In 1896 and the year following this Court held that a zamindar who makes a usufructuary mortgage of his zamindari including his sir land does not so lose or part with his proprietary rights

“within the meaning of S. 7, Act 12 of 1881, as to become an exproprietary tenant of his sir land.”

5. This was held in the case of Madho Bharthi v. Barti Singh (1), by all the Judges of this Court sitting in Full Bench. From 1896 onward then Kure continued to be the proprietor over the land in dispute and was not an exproprietary tenant only. In the year 1901, the N.W.P Tenancy Act was passed and that Act (S. 10, Cl. 12) has enacted that a usufructuary mortgage shall be deemed to be a transfer within the meaning of that section. Whatever effect that may have had upon the position of Kure ifc is not necessary to determine, but the passing of that Act could not affect the right which had been created in favour of the appellants prior to the passing of that Act. Section 6 of the Local General Clauses Act, Cl. (c), expressly lays down that where an Act of the United Provinces legislature repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not affect any right, privilege, oblgation or liability acquired, accrued or incurred under any enactment so repealed. No such intention has been pointed out to me nor do I know of any.

6. On behalf however of the respondents my attention has been called to the case of Sham Das v. Batul Bibi (2). In that case it was undoubtedly held that a zamindar having mortgaged by way of usufructuary mortgage his zamindari together with his sir land lost his zamindari rights and became an exproprietary tenant of his sir. There is one difference between that case and the present. In Sham Das v. Batul Bibi the mortgagor parted with the whole of his rights in the property held by him and it was in pursuance of the mortgage, the mortgagee obtained a decree for sale, sold that property in execution of the decree and purchased it and obtained possession. I do not think that case is a safe precedent to follow in the present case and even if it applies, then the only difference is that the mortgagee rights of the appellants must be held to attach to the exproprietary rights which Kure held when the sale took place. The learned Judge of the Court below and the vakil of the respondents lay some stress upon the fact that the sale of the exproprietary rights was not subject to any incumbrance in favour of one Samrat, but the present appellants were no parties to that decree and it does not appear that they were ever sent for and asked as to how the property should be sold.

7. I allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance.

V.B/R.K

8. Appeal allowed.