Jagdish Sahai, J. - (1.) THIS second appeal has come to us on a reference made by our brother S.N. Singh. The relevant facts giving rise to this second appeal are: Tej Singh, the father of the Respondent No. 1 Rukum Pal Singh, owned certain zamindari property and groves. He also held certain sir and khudkasht plots. Tej Singh mortgaged his zamindari share, sir and khudkasht plots, as also some groves with Khet Pal Paliwal, adoptive father of the Appellant Mewa Lai. Some time, thereafter, Khet Pal died. Mewa Lal filed a suit on the basis of the mortgage aforesaid against Tej Singh. The suit was decreed and the decree was transferred to the Collector for execution. The Collector granted Mewa Lal, Under Section 17 of the UP Debt Redemption Act, a self liquidating usufructuary mortgage for a certain period. Mewa Lal obtained possession over the zamindari share, the sir and khudkasht plots and the groves, on the basis of the order granting self -liquidating usufructuary mortgage to him. In July 1952, the UP ZA and LR Act (hereinafter referred to as the Act) came into force. In 1953, Rukum Pal Singh, the Plaintiff -Respondent, filed Suit No. 53 of 1953 in the court of the Civil Judge, Farrukhabad for possession over the groves that the Defendant Mewa Lal held by virtue of the self -liquidating mortgage mentioned above and for recovery of a sum of Rs. 100/ - by way of damages for the trees alleged to have been cut by the Defendant as also for the recovery of Rs. 500/ - as mesne profits for wrongful use and occupation of the said groves by Mewa Lal. On 25 -10 -1956 the learned Civil Judge decreed the suit for possession of the disputed groves and for recovery of a sum of Rs. 350/ - . He directed the parties to pay and receive costs in proportion to their success and failure. Against that decree Mewa Lal appealed to the District Judge, Farrukhabad. The appeal was dismissed with costs by the District Judge on 19 -11 -1957. Against the decree of the learned District Judge dated 19 -11 -1957 the instant second appeal has been filed in this Court.
(2.) THE question which was canvassed before the courts below and which has been canvassed before us is whether Under Clause (g) of Section 6 of the Act, Rukum Pal Singh was entitled to get back possession of the groves in dispute from Mewa Lad, on the ground that the "self -liquidating usufructuary mortgage" in favour of Mewa Lal was converted into a simple mortgage. The courts below held that Mewa Lal was a mortgagee in possession and the mortgage held by him was substituted by a simple mortgage and for that reason Rukum Pal Singh is entitled to get back possession over the groves in dispute. The contention of the Learned Counsel for Mewa Lal before us is that Mewa Lal is entitled to continue in possession for the remaining period of the self -liquidating usufructuary mortgage because a "self -liquidating mortgage" is not a mortgage with possession within the meaning of Clause (g) of Section 6 of the Act.
(3.) BEFORE I deal with this submission of the Learned Counsel, I would like to dispose of an objection made on behalf of the Respondents that the present appeal has abated Under Section 5 of the UP Consolidation of Holdings Act (hereinafter referred to as the Consolidation Act) because the village in which the groves in dispute lie has been notified for consolidation operations Under Section 4 of the Consolidation Act. This objection was taken by means of a written application, as also orally, during the course of arguments.;