Seth Chand Mal vs Sarju and Others

Chamier, J.—In this case the tenant of an occupancy holding executed a mortgage in favour of the defendants in September 1901, that is, after the passing of the present Tenancy Act. The mortgage was, therefore, invalid. The plaintiff, who is the zemindar, might have taken action u/s 31 of the Tenancy Act, but he did not do so. He accepted rent from the so-called mortgagees for several years and lie has now brought tin''s suit to have them ejected from the holding. Meanwhile in 1011 the occupancy tenant relinquished his holding. According to the decisions of this Court the occupancy tenancy has come to an end. The defendants are certainly not occupancy tenants and it appears to me that, they cannot call themselves mortgagees, in the events which have happened, it appears to mo that the defendants are the tenants of the plaintiff and may be ejected by him. was referred to two cases supposed to hear more or less on the present case, namely, Ram Sarup v. Kishan Lal 4 A.L.J. 306 : 29 A. 327 : (1907) A.W.N. 76 and Brij Kumar Lal v. Sheo Kumar Missir 29 Ind. Cas. 215 : 13 A.J.J. 649. Neither of these cases applies to the present case. The latter had to do with a mortgage made before the passing of the present Tenancy Act. In my opinion the decision of the Court of first instance was correct and should not have been disturbed. I allow this appeal, set aside the decree of the District Judge and restore the decree of the Court of first instance with costs here and in the lower Appellate Court.