JUDGMENT Gangeshwar Prasad, J.
1. The suit which has given rise to this second appeal was instituted in 1951 for recovery of possession over certain plots of agricultural land. Mata Badal who was an occupancy tenant of the plots in suit died leaving Smt. Shahzadi, his daughter as his heir. Smt. Shahzadi mortgaged the land usufructuarily on 1st June 1909 to Basdeo and others for a sum of Rs. 1500/- and put them in possession, Jai Mangal Lal plaintiff as the heir of Mata Badal, while the defendants are the heirs of the mortgagees. These facts were not in dispute and the main ground on which the suit was contested by the defendants was that the rela-
tionship of mortgagor and mortgagee no longer substituted between the parties and the defendants had become tenants of the land in suit. Pleas of limitation, res judicata and estoppel were also taken. The courts below decreed the suit subject to payment of Rs. 1500/- by the plaintiff to the defendants. Aggrieved by the decree passed against them the defendants have preferred this appeal.
2. The only contention raised before me on behalf of the defendants was that on account of the expiry of the period of limitation prescribed for the institution of a suit under Section 180 of the U. P. Tenancy Act of 1939 the defendants had acquired the rights of hereditary tenants and no suit for recovery of possession was, therefore, maintainable against them. The facts on which this contention was founded are as follows. The plaintiff filed suit No. 451 of 1945 against the defendants claiming possession on the ground that the mortgage executed by Smt. Shahzadi was null and void, but also making an averment in the plaint that he was entitled to the benefit of the U. P. Agriculturists Relief Act and the mortgage money bad been satisfied from the usufruct of the mortgaged property. The court before which the suit was instituted felt that the plaintiff could not in the same suit treat the mortgage as a nullity and also allege satisfaction of the mortgage and it, therefore, put the plaintiff to election.
The counsel for the plaintiff thereupon made statement (Ex. D) to the effect that on the death of Smt. Shahzadi the position of the defendants was that of mere trespassers. An application was subsequently moved by the plaintiff reiterating the allegation that the mortgage money had been paid up from the usufruct of the property but the court by its order dated 17th June 1949 rejected that application. The result was that the suit remained as purely one for unconditional possession of an agricultural land against trespassers. One of the pleas taken by the defendants in that case was that the civil court had no jurisdiction to entertain the suit. The court accepted this plea and by its Judgment dated 4th March 1949 returned the plaint for presentation to the proper court. On the basis of these facts it was urged by the learned counsel for the appellants that the possession of the defendants must be regarded as having become unlawful from the date of the institution of suit No. 451 of 1945 and at any rate from the date of the statement (Ex. D) which was made by the counsel for the plaintiff on 11th April, 1946, and that the defendants became liable to ejectment under Section 180 of the U. P. Tenancy Act thereafter. The soundness or otherwise of this argument obviously rests on the question as to what was the tnie legal position of the defendants under the mortgage and position of the defendants under the mortgage and the true nature of suit No. 451 of 1945 filed by the plaintiff.
3. In view of the Full Bench case of Mahabal Singh v. Ram Raj 1950 All LJ 713 : (AIR 1950 All 604) (FB) it can no longer be disputed that although persons holding under the mortgage deed of 1st June 1909 never acquired the status of mortgagees and were in possession merely as licensees, they were entitled to retain possession so long as the money advanced by them under the mortgage was not paid up it wad not open to the mortgagor or his legal representative to claim back possession without discharging the pecuniary obligation under the mortgage. The contention on behalf of the appellants was that the institution of suit No. 451 of 1945 and in any event the statement of the plaintiff's counsel in that suit on 11th April 1946 treating the defendants as trespassers constituted a withdrawal of that permission which alone could confer lawfulness upon the possession of the defendants and that their possession must be re-garded as having thereafter been otherwise in accordance with the law for the time being in force within the meaning of Section 180 of the U. P. Tenancy Act of 1939.
The contention has an air of plausibility but it will not stand the test of a close examination. The possession of the defendants would have lost its lawful character if the revocation of the permission had in itself been sufficient to deprive the defendants of their right to continue in possession. But if the defendants could not be disturbed in their possession unless the amount advanced by means of the mortgage had been paid back to them retention of possession by them can by no means be paid to have been contrary to law. I do not mean to suggest that the sum advanced under the mortgage should have been actually paid by the plaintiff before the nature of the defendants' possession could have undergone a change and been converted from lawful into unlawful possession. But it appears to me incontrovertible that the possession of the defendants could have become unlawful only if the withdrawal of the permission under which they held had at least been accompanied by an offer of the amount due to them.
If a person in possession of a land has the right to retain possession as long as an obligation which the owner of the land owes to him is not discharged his possession has the sanction of law and it cannot be regarded as otherwise than in accordance with the law for the time being in force unless it has been deprived of that sanction either by discharge of that obligation or by an offer to discharge it. It will be seen that for a suit under Section 180 of the U. P. Tenancy Act the requisite conditions were that the possession of the person sued should have been without the consent of the person entitled to admit him as a tenant and also otherwise than in accordance with the law for the time being in force. So far as the first condition was concerned it was dependent upon the will and the mental attitude of the person entitled to admit and If he had either not given or withdrawn his consent to the possession of the person sued that condition was fulfilled.
The fulfilment of the second condition, however, was not to be judged by the will or mental attitude of the person entitled to admit but, irrespective of the attitude taken up by the parties, by objectively ascertaining as to whether the possession or its continuance had a legal justification. If a legal justification was in fact present, mere want or withdrawal of consent of the person entitled to admit could not make a suit under that section entertainable. As a condition precedent to such a such against a person who was entitled to retain possession until a particular amount of money was paid back to him there must have been at least an offer and a preparedness to pay the amount on the part of the person suing and a refusal to vacate on the Dart of the person sued.
4. It appears that at the time of the institution of suit No. 451 of 1945 the plaintiff was not quite sure as to what the correct legal posi-tion in regard to the mortgage executed by Smt. Shahzadi, was. This was perhaps natural. On the one hand there was the fact that the mortgage related to an occupancy tenancy and had been created after the enforcement of the Tenancy Act, No. II of 1901. Further, the mortgagor had only a life interest in the property and she was dead. The plaintiff, therefore, regarded the mortgage as devoid of all validity and force and felt that he had no obligation to pay back to the defendants the amount advanced under the mortgage. The suit was thus framed as one for possession against trespassers. But the plaintiff was also faced with the situation that a sum of Rs. 1500/- had been advanced under the mortgage to Smt. Shazadi who was the tenant for the time being and a period of twelve years had expired since the execution of the mortgage. The plaintiff could not, therefore, rule out the possibility of being required to pay back the mortgage money as a condition to recovery of possession.
It was in these circumstances that the plaintiff took care to allege that the mortgage money had been satisfied from the usufruct of the mortgaged property. The court was, however, of the view that the plaintiff could not simulataneously take up these two stands in the same suit and when it put the plaintiff to election the plaintiff chose to treat the defendants as mere trespassers and to claim the relief of possession on that basis alone. It will be noted that in the plaint of salt No. 451 of 1945 the plaintiff had not offered to pay the sum of Rs. 1500/- to the defendants and the relief sought was of unconditional possession. After the statement made by the counsel for the plaintiff on 11th April 1948 no doubt was left regarding the nature of the suit and it became unequivocally a suit for possession against trespassers. The fact however that the defendants were treated by the plaintiff as trespassers and the Court, judging the maintainability of the suit in the civil court on the allegation in the plaint, returned it for presentation to the proper court could not have the effect of making the defendants trespassers, if they were really not trespassers in law.
As I have said above the character of their possession or to be more exact the question whether their possession was otherwise than in accordance with the law for the time being in force has to be determined with reference to what the legal position actually was and not with reference to what the parties thought about it. In as much the defendants were in law entitled to continue in possession until the amount advanced under the mortgage was either paid or offered their posses-
sion retained its lawful nature and they never rendered themselves liable to ejectment under Section 180. The question of acquiring hereditary rights under Section 180(2) would have arisen only if a suit under Section 180 could have been brought but, as, for the reasons indicated above, the plaintiff could not have brought a suit under Section 180 against the defendants it naturally follows that his failure to bring a suit did not result in the acquisition of hereditary rights by the defendants under Section 180 (2) of the U. P. Tenancy Act of 1939.
It would be useful to refer in this connection to the Division Bench case of Barhu Singh v. Kharpattu Singh, 1956 All WR (H.C.) 336 : (AIR 1956 All 436). The question in that case was whether in the case of a mortgage of an occupancy tenancy created when the N. W. P. Rent Act No. XII of 1S81 was in force Article 148 of the Limitation Act applied and whether on the expiry of the period prescribed under the Article for redemption of the mortgage the interest of the mort- gagor extinguished. The Bench held that the right of redemption of the mortgagor in a usufructuary mortgage of the above nature will not be deemed to have become barred by lapse of time under Article 148 of the Limitation Act and that the mortgagor can institute a suit for possession at any time upon payment of the mortgage money because his cause of action for recovery of possession would accrue on his demand for possession upon payment of the mortgage money and refusal thereof by the mortgagee.
The position is not materially different in the case of a mortgage executed when the Tenancy Act No. II of 1901 was in force. It is true that mortgages of an occupancy holding created when the N. W. P. Rent Act No. XII of 1881 was in force were treated as valid transactions but, as the Bench oh served, they were mortgages only Jn a 'qualified sense i.e. in the sense of subletting with a covenant that the mortgagor will not be entitled to recover possession without payment of the mortgage money and further, that a transfer of the occupancy holding was not created by the mortgage but a mere right to occupy the holding was created upon certain covenants. What was laid down in Barhu Singh's case 1956 All WR (HC) 336 : (AIR 1956 All 436) seems, therefore to apply with equal force to a mortgage under the Tenancy Act No. II of 1901 and the cause or action for recovery of possession by the mortgagor of such a mortgage also would likewise accrue 'on his demand for possession upon payment of the mortgage money and refusal thereof by the mortgagee.'
5. Reliance was placed by the learned counsel for the appellants on the judgment of a Division Bench of this Court in Second Appeal No. 1176 of 1959, Hansu Ahir v. Ram Adhar Rai, (All) to which the following question had been referred for answer :-
"When an occupancy holding has been mortgaged with possession in spite of the transfer being prohibited by law and the mortgagor sues the mortgagee for possession over the land offering to pay the amount due or without making such an offer could the suit be filed under Section 180 of the U. P. Tenancy Act in the revenue Court when that section was in force?"
The Bench summed up its answer in the following words:
"In the present case the question in this form appears to be too general. As stated above, the answer to the question depends upon other circumstances also which would be relevant for consideration..... However, as stated earlier, the correct position appears to be that a suit by a tenant who prays for possession of the property on payment of the mortgage amount, since the mortgage is illegal, is a suit for possession against a trespasser and lies in the revenue court if the suit is covered, on a consideration of other circumstances, by Section 180 or Section 183 of the U. P. Tenancy Act, but otherwise in the civil court."
6. It will be seen that the Bench did not express the opinion that a suit under Section 180 of the U. P. Tenancy Act was maintainable even if the money payable under an invalid mortgage had never been offered by the mortgagor and even if the mortgagor had in fact repudiated his liability to pay the mortgage money and demanded unconditional possession. The significance of the words 'on payment of the mortgage amount' in the answer of the Bench quoted above should not be lost sight of. It should also be noticed that the Division Bench in Harhu Singh's case 1950 All WR (HC) 336 : (AIR 1956 All 436) used similar words in laying down when the cause of action in a suit for recovery of possession by a mortgagor of an invalid mortgage would accrue.
7. The result obviously is that at no point of time did the possession of the defendants in the instant case become unlawful, because the amount due to them had never been offered. The defendants, accordingly never became liable to ejectment under Section 180 of the U. P. Tenancy Act and never acquired tenancy rights under Section 180(2) of the U. P. Tenancy Act. Even in the present suit it was not alleged by the plain-tiff that he had ever offered to pay the amount due under the mortgage to the defendants. What was, on the other hand, alleged was that the amount had been paid up from the usufruct of the mortgaged property. But this allegation was denied by the defendants and it was pleaded that the plaintiff was not entitled to possession without depositing a sum of Rs. 1500/-. The allegation of the plaintiff in this behalf has not been accepted by the courts below and indeed no attempt was made to prove it. The plaintiff had certainly prayed in the plaint that a decree for possession may be passed in his favour either unconditionally or subject to the payment of such sum as the court may deem proper. The alternative relief sought by the plaintiff is, however, wholly irrelevant for determining the character of the defendants' possession on the date of the suit. Clearly, therefore, the defendants are entitled to retain possession of the land in suit so long as the sum of Rs. 1500/- is not paid to them and the plaintiff is entitled to get possession of it subject to the payment of Rs. 1500/- to the defendants. The decree passed by the courts below is therefore, correct.