Radha Mohan Singh v. Mst. Mahesh Kuar — 1960 DIGILAW 275 (ALL)

JUDGMENT A.P. Srivastava, J. - This application in revision arises out of an application filed u/s 12 of the UP Agriculturists Relief Act. The mortgaged property consisted of a fixed rate holding The mortgage sought to be redeemed was an unregistered one and was alleged to have been made for a consideration of Rs. 85. The application was contested on several grounds. It was pleaded inter alia that the applicant had no right to redeem and that the opposite parties were not mortgagees but tenants of the land and that the application was not Maintainable u/s 12 of the UP Agriculturists Relief Act. The trial court held that the relationship between the parties was that of a mortgagor and mortgagee, that the opposite parties were not tenants of the land but were in possession as mortgagees and that the applicant had a right to redeem but could not redeem the mortgage under the provisions of S. 12 of the UP Agriculturists Relief Act because he was not an agriculturist who could take advantage of that section. The application was as a result dismissed. 2. The applicant went up in appeal to the Civil Judge who accepted the finding that the relationship between the parties was that of a mortgagor and mortgagee. He also did not differ with the finding that the applicant had a right to redeem. He thought that as no issue had been framed on the question whether the applicant was an agriculturist and was on that account entitled to take advantage of the provisions of the Agriculturists' Relief Act, the application should not have been dismissed on that ground. He, however, upheld the order of dismissal but on a different ground. That ground was that the ZA and LR Act having come into force, S. 12 of the Agriculturists Relief Act stood repealed. Under the new Act, the applicant had become a Bhumidhar and the opposite parties had become Asamis. The latter could be ejected only a/S. 202 of the Act but that section did not contain any provision for the ejectment of Asamis like the opposite parties. The appeal of the applicant was as a result dismissed. It is against that order of dismissal of his appeal that the present application in revision has been filed. 3. The latter could be ejected only a/S. 202 of the Act but that section did not contain any provision for the ejectment of Asamis like the opposite parties. The appeal of the applicant was as a result dismissed. It is against that order of dismissal of his appeal that the present application in revision has been filed. 3. It is contended on behalf of the applicant that the learned Civil Judge was not correct in his view that the application for the redemption of the mortgage had ceased to be maintainable as a result of the enactment of the ZA and LR Act. 4. It is urged on behalf of the opposite parties that S. 339 of the UPZA and LR Act has expressly repealed the provisions of S. 12 of the UP Agriculturists Relief Act. The Act has also provided that a mortgagee of a fixed rate tenancy would become an Asami. 5. After coming into force of the UP ZA and LR Act, therefore, there could be no question of any mortgage being redeemed u/s 12 of the Agriculturists Relief Act. The only remedy, if the applicant wanted to eject the opposite parties, was to file a suit u/s 202(c) of the UP ZA and LR Act. The application of the applicant was there fore rightly rejected. In support of his contention, Learned Counsel drew, my attention to a decision of Mr. Justice V. Bhargava in Civil Revision No. 862 of 1953 (decided on 28-7-60. 6. In order to appreciate the nature of an application filed u/s 12 of the Agriculturists Relief Act, reference must be made to the section itself and to the final order that is to be made u/s 16 of that Act. Under the former section, an application made is an application for the redemption of a mortgage. S. 16 provides that if the court finds that the applicant is entitled to redeem and that the amount deposited is sufficient, it shall order the mortgage to be redeemed. After redemption had been directed, u/s 18 in all cases where it is considered necessary the applicant is also to be put in possession of the mortgaged property subject to any conditions of the mortgage wether by a season or the period is fixed for surrendering possession. The main thing is the redemption of the mortgage. After redemption had been directed, u/s 18 in all cases where it is considered necessary the applicant is also to be put in possession of the mortgaged property subject to any conditions of the mortgage wether by a season or the period is fixed for surrendering possession. The main thing is the redemption of the mortgage. That is possible in cases of mortgages which are not possessory also. Putting the applicant in possession follows as a result of redemption only in cases where it is considered necessary. 7. u/s 21 Cl. (d) of the UP ZA and LR Act, the mortgagee in possession from a fixed rate tenant becomes an Asami, S. 133 of the Act declares that an Asami shall have all the rights & be subject to all the liabilities conferred by the Act. S. 200 of the Act then lays down that no Asami shall be ejected from his holding except as provided in the Act. S. 202 Cl.(c) provided for a suit for the ejectment of an Asami of the kind mentioned in Cl.(d) of sub.S.(1) of S. 21 if the mortgage has been satisfied, or the amount due has been deposited in Court. The period of limitation for a suit for ejectment u/s 202 Cl. (c) as provided in serial No. 25 Sub-clause (iv) of Appendix III to the ZA and LR Rules is three years and is to be counted from the date of redemption. It is clear from these provisions that though a mortgagee of what was originally a fixed rate holding becomes an Asami under the provisions of the Act, the mortgage in his favour does not altogether become obliterated. The redemption of the mortgage, satisfaction or deposit of the mortgage money is still necessary before action can be taken for his ejectment. The cause of action for such a suit will be the actual redemption of the mortgage. The only thing which S. 200 prohibited is the ejectment of the Asami otherwise than in the manner provided. It does not affect in any way the question of redemption or satisfaction of the mortgage in possession on account of which he became an Asami under the provisions of the Act. 8. The only thing which S. 200 prohibited is the ejectment of the Asami otherwise than in the manner provided. It does not affect in any way the question of redemption or satisfaction of the mortgage in possession on account of which he became an Asami under the provisions of the Act. 8. u/s 6 of the General Clauses Act, all actions taken under the repealed Act (UP Agriculturists Relief Act) stood saved unless there was something in the repealing Act to show an intention to the contrary. The application filed by the applicant being an action taken under the repealed Act stood saved under that section. It is, however, urged that S. 200 of ZA and LR Act indicates the intention to the contrary and on that account the application u/s 12 did not remain maintainable any further. It is difficult to accept this argument because as already shown. S. 200 does not affect in any way the question of the redemption of the mortgage. It only prevents the ejectment of the Asami except under the provisions of the UPZA and LR Act. So far as the application of the applicant was for the redemption of the mortgage, therefore, there appears to be nothing in the ZA and LR Act which indicates an intention of the legislature that it was to cease to be maintainable. 9. The applicant if he had a right to redeem could therefore maintain his application u/s 12 of the Agriculturists Relief Act even after the enforcement of the UP ZA and LR Act. He was entitled in that application to have the mortgage redeemed & the application should have been considered to that extent. Had the ZA and LR Act not come into force, the mortgagee could automatically as a result of the redemption be ordered to be dispossessed from the property also and the applicant could have been put in possession u/s 17 of the UP Agriculturists Relief Act. Because of the new Act that is no longer possible. Now if on the basis of the satisfaction or redemption of the mortgage secured in the application u/s 12, the applicant if actually wants to eject the mortgagee Asami, he will have to take recourse to a suit contemplated by S. 202(c) of the UP ZA and LR Act. 10. This aspect of the matter does not appear to have been considered by Mr. 10. This aspect of the matter does not appear to have been considered by Mr. Justice V. Bhargava in Civil Revision No. 862 of 1953 in which he has held that an application u/s 12 of the UP Agriculturists Relief Act became liable to be dismissed automatically as soon as the ZA and LR. Act came into force. In my opinion the application could proceed upto the stage of redemption and the mortgage could be ordered to be redeemed in that application. What cannot be done is the actual dispossession of the mortgagee. That can be done only in a suit to be filed u/s 202 of the UP ZA and LR Act. 11. The learned Civil Judge was also not correct in his view that there was no provision in the UP ZA and LR Act for the ejectment of a mortgagee of a fixed rate holding as an Asami. That provision is to be found in S. 202 read with S. 21 of the Act. 12. In the result, the dismissal of the appeal of the applicant by the learned Civil Judge was not, in my opinion, justified and must be set aside. The case will now go back to him for a consideration of the question whether the applicant was entitled to redeem the mortgage and for disposal of the appeal in the light of the observations made in this judgment. The trial court went into that question whether the applicant was an agriculturist though without framing a specific issue on the point. The learned Civil Judge should frame an issue on the point and obtain a finding on it from the trial court after the parties have been allowed to adduce any evidence which they may like to adduce in respect of that point. 13. Costs hitherto incurred will abide the final result.