Decided on January 07,1965

Sukh Nandan And Another Appellant
Board Of Revenue, Up Allahabad And Others Respondents


- (1.)The plea that the Petitioners are not mortgagors at all was not taken before the Board of Revenue; it was not pleaded that the original mortgagee was somebody else and that mortgagee's rights were transferred from the original mortgagee to other persons who subsequently transferred them to Bahadur, the predecessor-in-interest of the Petitioners. On the other hand the Petitioners admitted that they were the mortgagees. What they contended is that since they were mortgagees of occupancy rights they were not mortgagees in the eyes of law. Then there is a decision given by a competent court in a suit by the zamindar of the land and against Bahadur and Babu Nandan, another mortgagee of the same land to the effect that Bahadur and Babu Nandan were mortgagees. This was the case set up by them in the suit brought by the Zamindar who treated Babu Nandan and Bahadur as subtenants. The suit was dismissed on the finding that Bahadur and Babu Nandan were mortgagees and not sub-tenants. It is no longer open to the Petitioners now to contend that they were not mortgagees.
(2.)The finding of the Board of Revenue that regardless of the question whether the occupancy rights can be mortgaged validly or not Bahadur was a mortgagee in actual possession within the meaning of Section 21(1)(d) of the ZA and LR Act and consequently acquired asami rights, is not erroneous and is certainly not manifestly erroneous. The words "a mortgagee in actual possession from an occupancy tenant on 30-6--52" necessarily mean a mortgagee in actual possession holding from an occupancy tenant regardless of the question whether an occupancy tenant can mortgage the tenancy or not; otherwise they would bear no meaning at all. As every mortage of occupancy rights was invalid there could not be any mortgagee in actual possession from an occupancy tenant other than a mortgagee under an invalid mortgage. In any case this view taken by the Board of Revenue cannot be said to be manifestly erroneous justifying certiorari.
(3.)There is also no force in the contention that when the mortgagors created another mortgage in favour of Babu Nandan and directed him to discharge the debt of Badadur the mortgagee rights of Bahadur came to an end. Mortgagee rights of Bahadur could not be extinguished unless the mortage debt was satisfied. A mere direction of the mortgagors to the subsequent mortgagee to satisfy the mortgage debt of Bahadur did not have the effect of extinguishing his mortgagee rights and he continued to be the mortgagee.

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