M.N. Shukla, J. - (1.) THIS is a Plaintiff's second appeal arising out of a suit for possession on the allegation that the mortgage money of the mortgage described in the plaint has been satisfied. The Plaintiffs' case was that Raghubar Nonia, Plaintiff No. 1, along with his brothers mortgaged on 16 -6 -1912 the plots in suit for Rs. 500/ - to Ram Pati Shukla and Radha Krishan Shukla out of whom the latter alone is alive. Four plots namely Nos. 1494, 1501, 1927 and 1801 were fixed rate tenancy plots and the remaining plots Nos. 1491 and 1499/2 were occupancy plots. The other brothers of Raghubar Nonia were dead and the present Plaintiffs were their heirs, according to the pedigree which need not be gone into in detail for the purposes of deciding this case. It was further alleged that the Defendants were members of a joint Hindu family which was not disputed, that the mortgage had been taken with the fund of the joint Hindu family that all the Defendants were in possession over the plots in dispute as mortgagees that the Plaintiffs were agriculturists on the relevant date and were entitled to the benefit of the UP Debt Redemption Act; that the plots in suit were very productive and the entire mortgage money had been satisfied on or before 5 -6 -1955; that they asked the Defendants to deliver back the possession and the mortgage deed after recovering full satisfaction but they refused, hence the suit. It may be added that the Plaintiffs had previously instituted a suit in the revenue court for redemption and possession Under Section 12 of the UP Agriculturists' Relief Act but in the meantime the UP Act No. 1 of 1951 came into operation and the revenue court returned the plaint for presentation to the civil court where the present suit was instituted.
(2.) THE main defence in the case was that subsequent to the mortgage the Plaintiff No. 1, namely Raghubar Nonia, sold by a registered sale deed dated 19 -7 -1935 the aforesaid fixed rate tenancy plots only for Rs. 999/ - to Rampati Shukla and Radha Krishna Shukla; that since then the vendees had been in possession over those fixed rate tenancy plots not as mortgagees but as purchasers; that since the relationship of mortgagor and mortgagee with respect to those plots had come to an end by the sale, the suit in respect to those plots had come to an end by the sale, the suit in respect of the fixed rate tenancy plots was liable to be dismissed. As regards occupancy plots, it was contended that the plots in dispute were not productive, no part of the mortgage money had been paid up or satisfied, that no money had been deposited, that the Plaintiff No. 1 could not get possession over those plots without paying the said Rs. 500/ - i.e. the mortgage money and hence the suit was liable to be dismissed in respect of the occupancy plots as well. Some other pleas were also taken to which it is not necessary to refer. The trial court came to the conclusion that the entire mortgage deed had been satisfied and that no sale deed in regard to the fixed rate tenancy plots had been proved. As such, it decreed the Plaintiff's suit but though the decree for possession in regard to the occupancy plots was passed straightway, so far as fixed rate tenancy plots were concerned, a decree for redemption of mortgage only was passed as the suit, in the view of the trial court, for actual possession lay in the revenue court.
(3.) ON appeal the decree relating to the occupancy plots was affirmed and the finding with regard to the sale of the fixed rate tenancy plots was reversed and the Plaintiff's suit for possession or redemption of the mortgage in regard to the fixed rate tenancy plots was dismissed. Aggrieved by that decree the Plaintiffs have preferred this second appeal. The Defendants have also filed cross -objections in respect of the decree relating to the occupancy plots.;