JUDGMENT
1. This is an appeal from an order of remand passed by the appellate Court of the Subordinate Judge of Basti. Objection is not made as to the remand itself, but the appeal is in the nature of a second appeal from a finding of the lower appellate Court on a question of law.
2. The plaintiffs and defendants are grandsons of two brothers and owned a certain revenue-paying property in equal shares. They also held sir land jointly in the village. In 1906 the father of the plaintiffs mortgaged his share of the zamindari property, including the sir rights, to the father of the defendants, and the mortgage has now been redeemed. The present dispute relates to actual cultivating possession of sir land previously held jointly in equal shares by the parties. Both the subordinate Courts have decided that, on redemption, the plaintiffs are not entitled to possession as cultivators and sir-holders of the land which they held as sir at the time of the mortgage. The reason they give is that immediately on the zamindari property being mortgaged, the plaintiffs became ex-proprietary tenants of their share of the sir land, and as they did not enforce their possession as such ex-proprietary tenants, they lost their right to do so six months after the date of the mortgage and the other joint sir-holders became sir-holders of the entire area of the land held as sir by the plaintiffs and defendants jointly at the time of the mortgage. The theory seems to be that the defendants have become sir-holders independently of the mortgage and on the redemption of the mortgage there is no sir land in their possession which they may be called upon to deliver.
3. Under Section 60 of the Transfer of Property Act the mortgagor has a right in the case of a usufructuary mortgage, on payment of the mortgage money at the proper time and place, to require the mortgagee to deliver possession of the property to him. The property here was the mortgaged property in the same condition in which delivery was made at the time of the mortgage, including the sir. Though sir is not detailed in the mortgage deed, in the description of the property, the zamindari property is stated to include sir forest and other rights. It must therefore be presumed that sir land was mortgaged along with the zamindari property. The defendants' contention that the plaintiffs owned no sir at the time of the mortgage has not been accepted by the subordinate Courts, and it has been held against the defendants that the plaintiffs were owners of the sir land to the extent of one-half at the time of the mortgage. The only provision that Section 60 makes is that the right conferred by the section has not been extinguished by act of the parties or by order of a Court. No such act of parties or by order of a Court is pleaded here. What is pleaded is that the right has been extinguished under the provisions of the revenue law. We have therefore to see whether this is correct, and if correct whether the provisions of the revenue law can override the direct directions of the statute under the Transfer of Property Act.
4. In our opinion the provisions of the revenue law can be so interpreted as to save the sir land of the plaintiffs under the special circumstances of this case. The plaintiffs and defendants ware joint cultivators of the sir land and there can be no question of any adverse possession among co-sharers. Even accepting that it he defendants became ex-proprietary tenants, an ex-proprietary tenant does not cultivate land differently from a zamindar cultivating his sir land. There was no partition of the sir land and it cannot be said that the plaintiffs lost their rights as ex-proprietary tenants simply because the sir land was cultivated by the defendants without the help of the plaintiffs. The plaintiffs, instead of paying rent to their co-sharers and mortgagees, cultivating the land and deriving profit therefrom, permitted the defendants to cultivate the land so that they themselves may escape the payment of rent. Some such mutual arrangement must have been arrived at between the parties. Under such circumstances the ex-proprietary tenancy rights of the plaintiffs would continue even while the defendants alone actually cultivated the sir land, and when the ex-proprietary tenant redeemed the land, he would obtain a return of the sir rights in that land. Under Section 4, 01. 12 of Act 3 of 1901, the provision is that if the ex-proprietary tenant regains his proprietary rights in the land held by him as ex-proprietary tenant, the land mentioned in the first proviso to that section shall again become his sir. Under that proviso the plaintiffs-appellants are entitled to possession of the former sir land on redemption.
5. The mistake we think the two subordinate Courts have made is in thinking that after the lapse of six months from the date of the mortgage the plaintiffs lost their rights of ex-proprietary tenancy in the land in dispute even under the special circumstances of the case. As we have pointed out the defendants were not strangers but were jointly entitled to cultivate every inch of the land held jointly by the parties, and after the mortgage they continued to cultivate it and the plaintiffs, instead of paying rent for the ex-proprietary tenancy, preferred to permit the defendants to cultivate the land and excuse themselves from payment of rent. Under such circumstances we are of opinion that the plaintiffs did not lose the right of ex-proprietary tenancy in the land in dispute.
6. We have no desire to dissent from the principle of revenue law laid down in Mahesh v. Hori Khan Selected Decision No. 9 of 1918 of the Board of Revenue. The facts of the present case are however not similar. In that case the mortgagee was a stranger and in the nature of things could not acquire sir-rights in the land which was held as sir by the mortgagor. At the best, the mortgagee can only be the khudkasht cultivator of the land. Under such circumstances the Board of Revenue held that if a joint sir-holder transferred his zamindari right and did not claim ex-proprietary tenancy right in his share of the sir land', other co-sharers who had not transferred their zamindari would be entitled to hold the entire land as sir, and the mortgagee or purchaser would not be able to eject the co-sharers, who had not made a transfer of the zamindari property from any portion of the joint sir land. In the present case the sir-holders (co-sharers) and the mortgagees were the same persons. So the principle of law enunciated in the ruling of the Board of Revenue does not apply here.
7. In this Court there is a decision of a Bench [Tameshar Prasad v. Maharaj Singh (1921) 63 IC 114 ] where, under similar circumstances the Court held that the mortgagor on redemption of the mortgage was entitled to recover possession of sir land also even though he had relinquished his right as ex-proprietary tenant. The learned Counsel for the defendant-respondent urged that there was a distinction because the ruling was based on the Rent Act of 1882, and under the present Tenancy Act of 1901, the sir of a proprietor cannot be mortgaged with possession, and the proprietor immediately on the mortgage became an ex-proprietary tenant of the sir land. The distinction however does not exist in the reported case, because in that case ex-proprietary rights actually arisen had been claimed and had been relinquished. The case therefore was one similar to the present one where, under the law, ex-proprietary rights arose immediately on the execution of the mortgage.
8. In the result we amend the decree of the lower appellate Court and direct that in the decree for redemption there shall be an order placing the plaintiffs in joint possession along with the defendants of the sir land to the extent of one-half. Otherwise the decree and order of the lower appellate Court are maintained. Parties shall bear their own costs in this Court.