Hanuman Din and Another vs Ram Bisal

Banerji, J.—I think the Courts below are right. The plaintiffs are mortgagees from the defendant''s father whom the defendant now represents and they are recorded as mortgagees. They brought the suit out of which this appeal arises to recover profits for the mortgaged share from the defendant. The defendant mortgagor happens to be the lambardar, and his contention is that the mortgagees ceased to be in possession long ago, and that their mortgage has come to an end. The Courts below have dismissed the suit on the ground that this is not a suit for profits by a recorded o-sharer against a lambardar but is in reality a suit by the mortgagees against their mortgagor who dispossessed them. No doubt, the names of the plaintiffs are recorded in the revenue papers. But the defendant fills two capacities. He is the mortgagor as well as the lambardar; by withholding profits he as mortgagor has dispossessed the plaintiffs and the plaintiffs'' remedy is to sue to recover possession and possibly mesne profits. As such mortgagees they cannot in the guise of a suit for profits recover possession from their mortgagor in the Revenue Court. Their suit has been rightly dismissed, and I dismiss this appeal with costs including fees in this Court on the higher scale.