Bilat Sahu vs Tulsi Mahto and others

Fazl Ali, J.—It appears that the plaintiff had given in mortgage his holding of 6 bighas to defendant 1 for a sum of Rs. 100. Under the deed of mortgage the mortgage was to subsist for a period of five years extending from 1917 to 1922. During the subsistence of the mortgage the land was sold for arrears of rent in execution of a certificate obtained by the landlord and purchased by defendant 1 in the name of defendant 2 on 21st August 1919. Thereupon the plaintiff brought the present suit for recovery of possession which has been decreed. This second appeal has been preferred on behalf of defendant 1 and the only points which were raised on behalf of the appellant were: (1) that the decree for possession should have been made conditional upon payment by the plaintiff of the sum of Rs. 100 for which the land had been mortgaged by him to defendant 1 and also such sums as defendant I had paid for satisfying the decree for rent; (2) that the civil Court had no jurisdiction to try the suit. Under S. 46, Chota Nagpur Tenancy Act, no transfer by a raiyat of his right in his holding or any portion thereof by mortgage or lease for any period, expressed or implied which exceeds or might in any possible event exceed five years, shall be valid to any extent. By the terms of this section the mortgagee was not entitled to remain in possession of the mortgaged lands after the expiry of five years. In these circumstances it is clear that the plaintiff was entitled to a decree for possession. The question is whether the decree should have been made conditional upon payment of the mortgage dues as well as other sums spent by the defendant which are now claimed in appeal. Such an order could have been passed only on equitable grounds, but in view of the finding of the Courts below that the defendant tried fraudulently to have the land sold during the subsistence of the mortgage, it is clear that the defendant comes to Court with unclean hands and he is not entitled to any equitable relief. The next question is whether under S. 139. A the jurisdiction of the civil Court was barred to deal with the suit. Under Cl. (4) of S. 46 it is provided

At any time within three years after the expiration of the period for which a raiyat has under this section transferred his right in his holding or any portion thereof, the Deputy Commissioner may, in his discretion, on the application of the raiyat, put the raiyat into possession of such holding or portion in the prescribed manner.

In my opinion if the plaintiff purported to act under this provision, he would have had to make an application before the Deputy Commissioner and under S. 139-A the civil Court would have had no jurisdiction to order possession to be made over to him. In the present case, however, the plaintiff complains that the mortgagee had fraudulently got his land sold by failing to make payment of the rent which he was bound to pay. The fraud and the sale accomplished by means of the alleged fraud constituted a cause of action and entitled him to a relief which is quite distinct from the relief contemplated in Cl. (4) of S. 46. In ray opinion there is no bar in the Chota Nagpur Tenancy Act to the civil Court trying an actions which was based on the allegations made in this case. Both the Courts below have taken this view and in my opinion their view is correct. I may mention here that it was also argued before me that the certificate which was obtained by the landlord was partly for arrears which had accrued due before the mortgage transaction was concluded and the mortgagee was not bound to pay up those arrears. The lower appellate Court has come to a clear finding of fact that the mortgagee was bound to pay even those arrears. Even assuming, however, that this finding has not been correctly arrived at, on the admitted case of the parties, the mortgagee was bound to pay a portion of the arrears and so the point raised on behalf of the appellant does not make any substantial difference to the result of the case, I would, in these circumstances, dismiss the appeal with costs. Leave to appeal under the Letters Patent is refused.