Ram Dour Rai vs Mahant Harnam Das

Sir Edward Chamier, Kt., C.J.—The facts as found by the lower Appellate Court are that the predecessor-in-title of the plaintiff in 1889 mortgaged certain land to the defendant to secure payment of a sum of Rs. 160 and placed the mortgagee in possession. At the recent survey and settlement of the district the defendant managed to get himself recorded by the authorities as malguzar istimrar of the land. I understand these words mean that he is some kind of a permanent tenant of the land. The plaintiff thereupon brought the present suit claiming, first, a declaration that the defendant is not malguzar istimrar or any other kind of tenant of the land, and secondly, a declaration that the plaintiff would be entitled to recover possession of the property on payment of Rs. 160, The first Court dismissed the suit. On appeal the Subordinate Judge differed from the first Court on the merits, allowed the appeal and decreed the suit as brought. The Subordinate Judge overruled a contention that the suit was barred by the proviso to section 42 of the Specific Relief Act. The only question open to discussion in this appeal is whether the suit is altogether or in part barred by the proviso to section 42 of the Specific Relief Act. It seems to me to he quite clear that the proviso debars the Court from giving the plaintiff a declaration that he will be entitled to redeem the property on payment of Rs. 160 As mortgagor of the property the plaintiff is clearly not entitled to a declaration of the terms on which he may redeem the property when it is open to him to bring a suit for redemption of that property. That was the view taken in the cases of Lekhraj v. Abdul Ghafur Khan (A.W.N. (1894) 205 ) and Narna Balayya Vs. Rudravaram Venkatappa and Others, . Both the cases referred to were cases in which the mortgagee had sued for a declaration of his rights as mortgagee but had failed to sue for sale of the property although he was entitled to do so. So far as the claim in the present case for a declaration in regard to the redemption of the mortgage is concerned those oases do not appear to me to be distinguishable in principle from the present case. I would, therefore, bold that the plaintiff is not entitled to the second relief which he has claimed in this suit. It remains to consider whether the plaintiff is entitled to a declaration that the defendant is not a tenant of the land. Here the plaintiff is suing as proprietor of the land and according to the only cases in which this particular question has been raised he is entitled to a declaration that the defendant is not a tenant of the land although he, the plaintiff, may have been entitled when he instituted the present suit, to sue for redemption of the mortgage, [See Bujhawan v. Nanha ( A.W.N. (1882) 73 : 2 Ind. Dec. (n.s.) 999), followed in Ram Charan v. Durga Prasad (A.W.N. (1884) 78 : 3 Ind. Dec. (N.S.) 924).] The plaintiff''s right to claim a declaration that the defendant is not his tenant does not arise out of the mortgage at all.

Section 42 of the Specific Relief Act does not lay down that a plaintiff seeking a declaration in respect of one matter is bound to claim every relief that he may be entitled to against the defendant in respect of other matters. Following the decision of the Allahabad High Court which I have referred to, I would hold that the plaintiff is entitled to the first declaration sought by him. I would, therefore, allow this appeal in part and give the plaintiff a declaration for the first relief claimed by him, namely, that the defendant is not malguzar istimrar of the land in suit. But I would reject his claim to the second relief and I would direct that the parties pay their own costs throughout.

Sharfuddin, J.

I agree.