Jai Singh v. Munshi Singh

Agarwala, J.:— This is a defendant's appeal arising out of a suit for possession over certain agricultural plots. The facts, in brief, are as follows:—

2. On 26th of September, 1932, Munshi Singh plaintiff-respondent mortgaged the six plots in dispute with one Diwan Singh. Of these six plots five were sir plots and one was a khudkasht plot. Possession was handed over to the mortgagee of these plots and a statement to that effect was made in the mortgage deed.

3. Two days later namely on the 28th of September, 1932, Munshi Singh applied to the Sub-Divisional Officer for permission to relinquish his ex-proprietary rights. Permission was granted and the mortgagee appears to have been in possession till a suit for redemption was instituted by Munshi Singh.

4. While the mortgagee was in possession he granted an agricultural lease of the plots in favour of Jai Singh appellant who is now dead and is represented by his heirs. A suit for redemption was filed before the expiry of twelve years from the date of the mortgage and it was decreed. The mortgagor obtained formal possession over the plots in dispute on the 24th of September, 1944. Then he applied under Sec. 175 of the U.P Tenancy Act for the ejectment of Jai Singh.

5. The first court decreed the suit with regard to the five sir plots on the ground that sir rights had revived, but dismissed the suit with regard to the khudkasht plot. The defendant went up in appeal to the lower appellate court and the plaintiff filed a cross objection. The lower appellate Court was of the opinion that the sir rights revived in respect of the five sir plots and in respect of the khudkasht plot the possession of Jai Singh should be deemed to be that of a trespasser and consequently it decreed the suit for ejectment from all the six plots. Against this decree Jai Singh has come up in appeal to this court. On behalf of his heirs it has been urged by learned counsel that the view taken by the court below that sir rights revived was erroneous. He has pointed out that since the mortgage was not wholly of sir plots but consisted of five sir plots and one khadkasht plot the proviso to Sec. 15(5) of the Agra Tenancy Act of 1926 did not apply to the case. The proviso in question runs as follows:—

“Notwithstanding anything in this section, where the property transferred by means of a mortgage of the kind specified in sub-section (5) of section 14 consists wholly of a specific area of sir, the mortgagor may by simultaneous agreement in writing waive his ex-proprietary rights, and in that case the mortgaged land shall, if the mortgagor regains within twelve years of the date of the transfer of possession thereof on redemption of the mortgage, resume the character of sir. In such land statutory rights shall not accrue for twelve years from the date of the transfer.”

6. The lower appellate court was of opinion that the word “wholly” in the proviso did not prevent sir rights reviving in the sir area even though the mortgage consisted not only of sir area but of other land. Reliance in support of this view was placed upon a decision of the Board of Revenue reported in 1941 R.D 257. This case, it may be noted, was overruled by the Board of Revenue in Bhanpal Singh v. Bijai Pal Singh 1945 A.W.R Rev. 189.. We are of opinion that the word “wholly” in the proviso implies that the property mortgaged must consist entirely of sir land and of land of no other category. If along with the sir some non-sir area has been included in the mortgage the proviso is not applicable. It is clear, therefore, that sir rights did not revive in the sir plots. If they did not revive, the land was non-sir in the hands of the mortgagee. The agricultural lease granted by the mortgagee in favour of Jai Singh was a lease granted in the ordinary course of management and the lessee acquired statutory rights under the Agra Tenancy Act of 1926 and became a hereditary tenant under the U.P Tenancy Act of 1939. The same would be the case with regard to the khudkasht plot. Jai Singh would now be a hereditary tenant of that plot also. He is, therefore, not liable to be ejected.

7. The result, therefore, is that this appeal is allowed, the decree of the court below is set aside and the plaintiff's suit is dismissed with costs in all the courts.

8. Appeal allowed.