Manchanda, J. - (1.) THIS is an appeal by a Defendant arising out of a suit Under Section 202(c) UP ZA and LR Act. The suit was one for possession over six plots of land covering an area of 6 Bighas, 12 Biswas situate in a certain village. The plots were specifically detailed at the foot of the plaint. The Plaintiff's case in short was, that the plots in suit formed part of the occupancy holding of the Plaintiff, that he had usufructuarily mortgaged them to one Ram Swarup under a mortgage deed of the 18th May, 1933. It was further alleged that the Zamindars had obtained an arrears of rent and ejectment decree against the Plaintiff -mortgagor under the provisions of Section 79 of the Agra Tenancy Act and that there were proceedings for ejectment taken under that decree, that the ejectment had been mala fide inasmuch as, under the mortgage of the 18th May, 1933 there was an agreement to the effect that the mortgagee would pay a sum of Rs. 84/ - which were left as part of the consideration, with the mortgagee, to the Zamindar and thereby ward off ejectment proceedings. The contention of the Plaintiff further was that the Zamindars were privy 10 this contract and they had agreed to take this money from the mortgagee and ward off ejectment. The mortgagee did not pay to Zamindars with the result that the Zamindars took ejectment proceedings. The contention of the Plaintiff further was that the Zamindars in collusion with the mortgagee, in bad faith, let the mortgagee occupy the laud in the capacity of a tenant. The Plaintiff's contention in effect amounted to his saying that the mortgagee and the Zamindars colluded with each other and thereby deprived the Plaintiff of his possession and put in possession the erstwhile mortgagee. The Plaintiff said that the mortgagee's possession was that of an asami and that he was liable to be ejected by him in this suit.
(2.) THE defence inter alia was a short one and it really turned on substantially legal grounds. The contention put forward on behalf of the Defendant was that the mortgage which had been executed on the 18th May, 1933, being a mortgage of occupancy holdings was void, in law. Reliance was placed on the provisions of Section 23 of the Agra Tenancy Act (Act III of 1926). It was further contended on behalf of the Defendant that the Zamindars had actually ejected the Plaintiff in respect of the lands in execution of the arrears of rent decree which had been obtained by them on the 10th May, 1923 and in respect of which, actual ejectment had taken place on the 5th June, 1933. It was contended on behalf of the Defendant that by virtue of Section 35(1)(b) of the Agra Tenancy Act the tenancy in favour of the Plaintiff -tenant had been extinguished. He further contended that after the ejectment of the tenant the Defendant was put into possession as tenant by the Zamindars under a separate engagement. It was therefore contended by him that his possession could not possibly be that of an asami qua the Plaintiff. The Defendant, on the case set up by him as noticed above, contended that the Plaintiff had no title to initiate the suit for the ejectment of the Defendant. The trial court decreed the Plaintiff's suit and it appears to us that the basis of the trial Court's decree was some sort of an equitable principle, which the trial court thought was sustainable under the provisions of the Indian Trusts Act. The principle that the trial Court and even the lower appellate Court appear to have followed was founded on the belief that since the Zamindar and the mortgagee had agreed to liquidate the arrears decree and since the mortgagee did not do so and the Zamindars did not let them do so, therefore, the Zamindars and the mortgagees, were in a kind of conspiracy which deprived the Plaintiff of the property which according so the view of the courts below entitled the Plaintiff to be put back into possession in which he would have been if the mortgage, in accordance with the agreement, had been paid up.
(3.) S . 90 of the Trust Act on which reliance was placed was in these words: Where a tenant for life, co -owner, mortgagee or other qualified owner of any property, by availing himself of his position as such gains an advantage in derogation of the right of the other persons interested in the property, or where such owner as representing all persons interested in such property gains any advantage he must hold for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred and to an indemnity by the same persons against liabilities properly contacted in gaining such advantage.;