JUDGMENT George Knox and Muhammad Rafiq, JJ.
1. The plaintiffs to the suit out of which this second appeal has arisen describe themselves as mortgagees from certain persons whom they have arrayed as defendants 1 to 3. It appears that the mahal in which the land in dispute is situate was sold for arrears of revenue which were due from the mahal. On the 24th of December, 1892, the mahal was sold at a revenue sale and purchased by one Jagan Bihari Lal. Jagan Bihari Lal in turn sold all the rights he had purchased to one Tara Chand and defendants 4 to 6 are the representatives in interest of Tara Chand. The mortgagees are now seeking to enforce their rights and ask that the mortgage money may be awarded to them by sale of the mortgaged-property. The suit was defended only by defendants 4 to 6. The contention is that as the whole of the mahal, including the area in dispute, was sold to Jagan Bihari Lal, even if defendants 1 to 3 and the plaintiffs had any right as co-sharers, that right became extinct under Section 167 of Act XIX of 1873. The land in dispute, they say, though known as grove land, is not actually a grove, but has been actually under cultivation from a long time prior to the execution of the mortgage set up by the plaintiffs. The Subordinate Judge of Farrukhabad, before whom the suit came in the first instance, relying upon Sections 146 and 148 of Act No. XIX of 1873, held that the plaintiffs might be granted a decree for recovery of possession of the land in dispute. In appeal the learned Judge found that the land in dispute was really nankar land and no exproprietary tenancy had been created so far as the occupiers of the nankar land were concerned. He further held that their rights in the land were in no way affected by the sale of the zamindari. He therefore decreed the suit, against the first three defendants, for recovery of possession of the land in suit by the plaintiffs as usufructuary mortgagees of these defendants' interests as exproprietary tenants of the land in suit, for Rs. 800-0-0. But he dismissed the rest of the suit. Defendants 4 to 6 have appealed to this Court and they again contend that as the entire proprietary rights in the village Neknampur were sold, the mortgage in suit was extinguished and could not be enforced.
2. Apparently the confusion into which the Subordinate Judge fell arose from the words in which the land in dispute is described in the wajib-ul-arz at the settlement of 1870. There the land is set out as being sir, bila lagani bataur malikana wa bila mundarja khewat. and it has been strongly argued before us that the terms used in Sections 146 and 148 of Act XIX of 1873 justify the contention. It is true that in Section 146 it is said that in the case of every mahal the entire mahal and all the proprietors jointly and severally shall be responsible to Government for the revenue for the time being assessed on the mahal, and that Section 148 provides that any sum not so paid becomes thereupon an arrear of revenue and the persons responsible for it become defaulters. We are also referred to Section 53 of the same Act. The learned Counsel was asked whether he could produce any precedent in support of his contention that persons in a mahal who are generally known by the term muafidars and are, as in this case, persons who are not entered as payers of revenue to the Government for the time being, are, in the event of the mahal falling into arrears of payment of revenue, responsible for payment under Section 146 and their rights, if the mahal is brought to sale, extinguished in favour of the seller. The rights of the mortgagors in the present case were rights which came into existence before the settlement of 1870. It is not shown, and it is in the highest degree improbable, that they were rights created by the zamindars who were responsible for the arrears under which the mahal in which the property in dispute was situate was brought to sale. In our opinion the word 'proprietor' used in Sections 146 and 148 refers only to those who in the wajib-ul-arz are set out as being the persons on whom the revenue has been at the time of settlement assessed jointly or severally. The wajib-ul-arz of 1870 shows no such payment of revenue by the mortgagors in the present case. The contention raised in this appeal is in our opinion without force, and the view taken by the learned Judge is the correct view. It is not for us in the present case to say what precise position the mortgagee held in the mahal. All that we have to decide is what rights were sold in default of arrears of revenue. The appeal fails and is dismissed with costs.