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1923 DIGILAW 468 (ALL)

Ganesh Din v. Lachman Singh

1923-06-20

body1923
JUDGMENT Kanhaiya Lal, J. - This appeal arises out of a suit for the redemption of a mortgage said to hare been effected by Diplu Singh, the ancestor of the plaintiffs in favour of Thakur Dayal, the ancestor of the defendants. The defendants denied the existence of the alleged mortgage; but the Court below found that the mortgage in question was proved. The defendants also denied that the plaintiffs were the lawful successors of Diplu Singh; but the Courts below found against them. It appears that Diplu Singh was an occupancy tenant of the plots in dispute and that he mortgaged them with Thakur Dayal and gave him possession. The plaintiffs were his collateral descendants and were according to the Courts below joint in cultivation with him in the holding. The extent of that holding is not mentioned Whether they were joint with him in the cultivation of the whole holding mortgaged or in the cultivation of the remainder of his holding, makes no difference, because a holding is defined as a parcel or parcels of land held under one tenure or lease or engagement. If one parcel is mortgaged and another parcel is free from the mortgage, and a person is joint in cultivation with the mortgagor in the latter, that is enough to give him a right to redeem the former. If he is joint in cultivation with him in the holding, that is to say in any parcel of land comprised in that holding, the entire holding can devolve on him, for it must devolve as a whole under S. 22 of the U.P. Tenancy Act (No. II of 1901). If the holding comprised only the mortgaged plots, the fact that the plaintiffs were in joint cultivation with the mortgagor before the mortgage would equally give them a right to redeem the mortgage An occupancy tenant may (Sic) part of the land comperi (Sic) holding in his cultivation (Sic) his kinsmen and may su (Sic) thereof but the effect o (Sic) lease cannot prevent (Sic) of the entire holding (Sic) who are joint in the (Sic) him of the remaind (Sic) he has made a mc(Sic) would similarly v.(Sic) In either event t(Sic) cultiration is determined by the fact of cultivation itself and not by its extent. 2. 2. It is asserted that the statements of some of the witnesses relied on were misunderstood by the Courts below in arriving at the conclusion recorded by those Courts, but there is nothing to show that that contention is well founded. The appeal is therefore rejected.