Agarwala, J. - (1.) The applicants in the above civil revision and the appellants in the connected Execution Second Appeal were the plaintiffs in a proceeding under Section 12, U. P. Agriculturists' Relief Act.
(2.) The property in dispute was a half share in Khewat No. 16 of village Sultanpur Baragaon. This Khewat was owned by Gopimal, defendant-opposite party, to the extent of one half and by two other persons Bharosa Mal and Ram Swarup Mal who owned tbe other half. All these three co sharers had joint Sir and Khudkasht plots in the Khewat. On 14-6-1928, Bharosa Mal and Ram Swarup Mal executed a usufructuary mortgage of their half share in the Khewat in favour of their co sharer Gopi Mal. The mortgagors put Gopi Mal in possession of the mortgaged property including all those joint Sir and Khudkasht plots which were by mutual arrangement in their exclusive possession and did not retain or claim possession by virtue of ex-proprietary rights that accrued to them upon the execution of the mortgage and transfer of possession over the proprietary rights. On 10-3-1937, the rights of the mortgagors were sold at auction in execution of a simple money decree against them and were purchased under the Regulation of Sales Act of 1934 by the plaintiff-applicants Jokhu Lal, Rama Shankar Sheo Shankar and Sheo Narain. The plaintiff-applicants then deposited the mortgage money under Section 83, Transfer of Property Act. On 5-7-1848 they filed a suit for redemption which was later converted into an application under Section 12, Agriculturists' Relief Act.
(3.) In defence several pleas were raised. But we are not concerned with them. The trial Court decreed the suit for possession. The defendants appealed to the lower appellate Court and the principal point taken in appeal was that the plaintiffs were not entitled to get actual possession of the Sir plots appertaining to the mortgaged share because the mortgagors' Sir rights having become extinguished and they not having claimed ex-proprietary rights, the plots became the exclusive Sir plots of Gopi Mal, the co-sharer. The lower appellate Court upheld this plea and modified the decree of the trial Court by ordering that the plaintiffs will not be entitled to actual possession over the Sir plots. Meanwhile the plaintiffs had executed the trial Court's decree for possession and the defendant raised a similar plea in the execution proceedings. That plea was rejected by the trial Court. The defendant appealed to the lower appellate Court which allowed the appeal and passed an order in conformity with its order in the regular appeal from the decree of the Munsif. Against the decree in the regular appeal a revision application No. 54 of 1947 has been filed in this Court, while a Second Appeal has been filed against the decision of the lower appellate Court in the execution appeal. Both the cases came up for bearing before a Division Bench of this Court which referred the following point for decision to this Full Bench. ''Where a co sharer while mortgaging his zamindari property includes in the mortgage a part of the joint Sir area over which by arrangement between him and his other co sharers, he is in separate possession whether he is entitled to claim back the said area from the mortgagee at the time of redemption or the mortgagee can successfully resist such a claim on the ground that he, being also a co-sharer, the Sir area has become his exclusive Sir land not returnable to the mortgagor.";