JUDGMENT Walsh, J.
1. These are two connected second appeals from a decision of the District Judge, and they have given me a good deal of trouble on account of the number and variety of points of law which are said to arise. One appeal is valued at Rs. 8, and the other at Rs. 12. There are almost as many points as there are rupees. I will try and deal with all of them in turn. I hope if I forget any of them, I shall be forgiven by the parties because they are so many, and I cannot remember them all. I may at first say that I think the decision is right, and a decision which, as the Judge himself says he was bound to come to. A suit was brought in the Court of the Assistant Collector by a zamindar against a mortgagee for ejectment. On the facts stated, the suit was improperly brought in a Court which the plaintiff knew perfectly well had no jurisdiction to eject the defendant. The land had been the occupancy tenancy of one Mangla with others. Mangla died and the property was inherited by Mt. Lachmania,, his widow. Before his death Mangla, during the tenancy, had mortgaged the property, in favour of the defendant, the present respondent, who constructed buildings upon it.
2. It is important to observe that it is found by the lower appellate Court that the plaintiff had in 1903 brought a similar suit for ejectment against both Mangla and the others, that is to say, the occupancy tenants and also the usufructuary mortgagee, and that suit was dismissed on the 13th of October 1903. One of the points raised in defence in this suit is that the decision of that suit was a determination of the issue, and that, therefore, this suit is governed by Section 11, Civil P.C. I should have thought that was a correct view, and if necessary I am prepared to hold that, although I do not think it necessary. The lower appellate Court holds that Section 11 does not apply. He does not say why. It may be that he thought that the Court which tried the previous suit in 1903 had no jurisdiction, and was therefore, not competent to decide the question of the ejectment of the usufructuary mortgagee. If that is the correct view, it puts the present plaintiff in a dilemma, because if the previous Court had jurisdiction over the mortgagee to eject him, it decided against the plaintiff and interfered with Section 11. If, on the other hand, its had no jurisdiction, then the Assistant Collector had no jurisdiction, and the plaintiff brought his suit admittedly in the Court which had no jurisdiction to decide it.
3. The foregoing, however, is not the point which has been argued, although many others have been. The Assistant Collector held in favour of the plaintiff. The widow had relinquished the holding, and as between herself and the plaintiff had brought the tenancy to an end. It looks suspicious that she should have clone so, because no motive for it is assigned, and to that extent it creates a distinction between the first suit decided in 1903 and the present suit, but a distinction which does not govern the relationship between the plaintiff and the mortgagee, the present defendant. But it looks very much as if the plaintiff hating been defeated in his previous efforts to eject this mortgagee, procured the relinquishment or surrender in the hope that it would enable him to improve his position in a subsequent suit. The Assistant Collector fell into the trap, and apparently, adopting the view which has been taken by the Board of Revenue, held that the Court had cognizance of the case, and that the mortgagee had no right on the land in suit. It was equivalent to a declaration that the mortgage had determined, and was a complete determination destructive of the mortgagee's original rights under his mortgage from the deceased Mangla.
4. Before I consider that decision on the merits, and refer to the authority of this Court in consequence of which the District Judge overruled the Assistant Collector, I desire to express my opinion of the effect of the decision of the Assistant Collector in order to make my view clear on some other points on a question of jurisdiction, which have been argued by Mr. Baleshwari Prasad, and which he says I am bound to take notice of because of some procedure adopted in Letters Patent appeal, although I do not agree and do not think I am bound to take notice of them. But in the event of my being wrong with regard to that, I propose to deal with all the points argued.
5. In my opinion in the first Court a point of jurisdiction was raised and decided. In my opinion the plaintiff's advisers knew perfectly, well, as the result of the first suit, that the defendant was a mortgagee, and their attempt to eject the defendant in the revenue Court under Sections 58 and 63 was a fraudulent attempt to utilize the revenue Court for their benefit and to dodge the civil Court because they knew perfectly well that on the authority of the Full Bench, to which I shall refer presently, no civil Court could possibly grant such a decree. So that a question of jurisdiction distinctly arose, and the first issue dealt with the question whether the suit was not cognizable by a revenue Court. The Assistant Collector quite appreciated the position, and in the same sentence in which he decided that he could eject the mortgagee, he held that the Court had cognizance of the suit. In my opinion he thereby decided a question of jurisdiction. In my opinion he also decided a question of proprietary title. He held that the rights of the mortgagee came to an end. It is only an opinion for what it is worth, but my view is that unless there is some statutory definition prohibiting the view on general principles of law, an attack upon a mortgage through which the mortgagee derives his title to the security, and the rights arising under the security, is an attack upon a proprietary title.
6. Baleshwari Prasad for the appellant argued very vigorously that view was wrong, that there was a lot of authority to the contrary, although I have not seen any, and that as the mortgage was a mortgage of an occupancy tenancy granted by a tenant, it could not be described in any sense as raising a question of proprietary title. My view is that this argument confuses the subject-matter of the mortgage with the nature of the mortgagee's rights. It is quite true that the subject-matter of the mortgage is a tenancy, but to my mind the rights of a mortgagee especially of a usufructuary mortgagee are proprietary rights in the sense that he has a right in the money which he has advanced or a claim to have it repaid. He has a proprietary interest in the proceeds of the land, or the crops if there are any, or the rents and mesne profits, if the land is occupied by some tenant, and so far as it goes I think there is an authority which supports that view. On page 37 (15 A.L.J.) in the case of Ram Sarup v. Harpal [1917] 39 All. 200 the ex-Chief Justice dealt with a question of limitation with regard to some rents collected of some occupancy holdings which had been mortgaged and which rent had been withheld from the mortgagee. He uses this language:
Where property is granted by lease for 20 years it is clearly the property of the lessee so as to enable him to bring a suit for mesne profits if he is deprived of them during the term of the lease. So also under a mortgage where the mortgagee is entitled to enter into possession of the mortgaged property and receives the rents and profits, the property belongs of the mortgagee during the continuance of the mortgage.
7. Following that view, which accords with my own view of the general principle, the decision of the Assistant Collector in this case, purporting to deprive the mortgagee of all his rights was a decision of proprietary title. As I have said the two foregoing opinions are merely dicta but as will be seen hereafter they have some bearing upon the point of jurisdiction which was so persistently argued by the appellant. The defendant naturally appealed against this outrageous decision by the Assistant Collector, and the lower appellate Court overruled the decision and dismissed the suit. It seems to me that the lower Court had no alternative but to follow, as I am bound to follow, the Full Bench ruling in the case of Birj Kumar Lal v. Sheo Kumar Misser [1915] 37 All. 444 holding that a relinquishment of this kind was ineffectual as against the mortgagee. That decision has been followed in the case of Chhiddu v. Sheo Mangal Singh [1917] 39 All. 186 by a Bench composed of two Judges who overruled a third Judge in Letters Patent appeal, holding that an occupancy tenant could not prejudice his mortgagee's rights by surrendering his tenancy. Therefore, the decision of the lower appellate Court was right.
8. Mr. Baleshwari Prasad for the appellant really did not challenge it. He took a point of jurisdiction. So far as I can follow the point his contention was that this being a suit under Sections 58 and 63 of the Tenancy Act, was included in Group C of the Fourth Schedule of the Tenancy Act, and, therefore, an appeal lay to the Commissioner. The real answer to this point is that it was taken for the first time in this Court. Mr. Baleshwari Prasad tells me that it is never too late to take a point of jurisdiction, and that the Letters Patent Appeal Court is in the habit of taking points of jurisdiction which have not been taken in the Court below. He will, therefore, have an opportunity of taking this point before the Letters Patent Appeal Bench, and I wish him every success, but I decline to listen to it. I think it ought to be an absolutely binding rule that no litigant should be allowed to take in the Court of Appeal a point which he has deliberately omitted to take in the Courts below. It is the worst possible example to encourage such a practice and it is contrary to the recognized principles of litigation. In this connexion he has referred me to a decision of two Judges of this Court in the case of Daulatia v. Hargobind [1921] 43 All. 18 which held that the plea of jurisdiction could be taken in the High Court although not raised in the lower appellate Court, as the question was one purely of law and in no way involved a question of fact. I do not understand this decision. If I am free to depart from it, I decline to follow it, but the best view that I can take of it is that the Court held itself free to take a point which had not been taken, if it thought that it ought to do so, or the interests of justice demanded it, that is to say it is discretionary for a final Court of appeal to take a point even though not raised in the Court below. If that is what they meant to decide, I agree, and in the exercise of my discretion I refuse to entertain the point, and, therefore, the appeal fails in my view upon that ground. The appellant abandoning the contention that the Court below was wrong, sought refuge in the point that the Court below had no jurisdiction to hear the appeal. I think the time to raise that point was when the Court below heard the appeal and not two or three years afterwards in the High Court.
9. But I have by no means done with the various points which have been raised finding that he could not evade the various Full Bench rulings, statutory provisions and other authorities which stood in his way, the appellant invited me to modify, as I understand it, the order of the Court below by making some order in his favour. To put the argument plainly it comes to no more than this, that having objected to the jurisdiction of the Court which had decided against him he now asks me to commit an error of jurisdiction and to give him a decision in his favour. In my view I have no jurisdiction to do anything of the kind.
10. In order to make my view clear it is necessary to re-state some of the facts to which the appellant stands committed. This was a suit brought, in my opinion, in a Court which had no jurisdiction to entertain it at all, and which the plaintiff's advisers knew had no jurisdiction to entertain, and, therefore, was a suit brought deliberately and mala fide in the revenue Court for the express purpose of dodging the law which they knew would hate been binding upon them if they had sued in the civil Court. Having failed in that maneuver, and having failed to persuade a High Court Judge to exercise the Jurisdiction which the plaintiff had never invited anybody to Exercise before in the course of the litigation, he now wants me to disturb the whole of the proceedings for the last three years, to ignore the form of the suit which was deliberately brought, in my opinion, out of mala fides, and to treat a suit for ejectment under Section 58 of the Tenancy Act, brought by a zemindar to eject a mortgagee who had a perfectly good title as a suit brought in a civil Court fey a mortgagor for redemption. I doubt whether materials exist to enable such a matter to be entertained. There is not a trace in the proceedings of the Court below and in the findings which would enable me, even if I were so disposed, to adjudicate between these two litigants as between a mortgagor and a mortgagee, but I think on this point it is safe to say that I have no jurisdiction whatever to turn a revenue suit for ejectment into a civil suit for redemption. I regard the whole litigation as outrageous and if I could penalize the appellant I would do so, but all I can do is to direct that he pay all the costs here and below including in this Court fees on the higher scale.