JUDGMENT
Ramaswami, J.
1. The question to be determined in this appeal is whether the plaintiffs can be granted a decree for redemption with respect to certain lands of khata Nos. 257 and 333 and certain palm trees in khata No. 368 located in village Shahbazpur, touzi Nos. 3051 and 3054.
2. The plaintiffs alleged that on 1st June 1897 Ganga Ram had executed a usufructuary mortgage deed in favour of Ramlal, ancestor of defendants 1 to 4, with respect to the lands in dispute for a consideration of Rs. 100. After the death of Ganga Ram, defendant No. 5 succeeded to the properties and on 5th of October 1946 the plaintiffs purchased the equity of redemption from defendant No. 5 by a registered sale deed. There was a stipulation in the document that a sum of Rs. 100 was kept in deposit with the plaintiffs for the purpose of redeeming the land. The plaintiffs alleged that though they tendered the amount to defendants 1 to 4, the latter refused to accept the money or to deliver possession of the land to the plaintiffs. The main ground of defence was that the document executed by Ganga Ram, though in form a mortgage deed, was intended to operate as a sale. It was averred on behalf of the defendants that the devise had to be resorted to since under the law then prevalent the holding could not be transferred unless there was custom of transferability in the village. Upon a consideration of the evidence adduced the Munsif held that the transaction was a sale and not mortgage and the plaintiffs ought not to be granted a decree for redemption of the alleged mortgage. The decision has been affirmed by the learned Subordinate Judge in appeal.
3. The main question to be decided is therefore whether the document dated 1st of June 1897 executed by Ganga Ram was a usufructuary mortgage, as contended on behalf of the plaintiffs, or constituted a sale, as contended on behalf of the defendants.
4. It is necessary for the purpose of answering this question that the terms of the document should be closely examined. The document, exhibit 11, recites that
“Ganga Ram in order to pay off the dues of a simple mortgage bond dated 5th June 1883 due to the mortgagee Ramlal Rai gives the lands including trees in rehan for a period of five years from Jeth 1304 to Jeth 1349 Fs. for a consideration of Rs. 100. That the consideration of Rs. 100 is set off towards the previous mortgage dues.”
The document proceeds to state :
“The executant has put the rehandar in possession of the properties mentioned in the deed and the latter is required to appropriate the income from the lands after payment of rent as long as the principal money is not paid off.”
There is the usual stipulation that in case the rehandar gets out of possession due to defect in title or being dispossessed then he would be entitled to realise the entire principal money with interest at the rate of Rs. 2 per cent. per mensem from the mortgage security and if this is not sufficient then the mortgagor would be personally liable for payment of the balance.
4a. The lower appellate court held that the document should be construed to be a usufructuary mortgage and there was no indication that the executant intended that the transaction should be a sale. But in view of the other evidence adduced on behalf of the defendants with respect to the conduct of the parties the lower appellate court held that the document was in reality an out and out sale and the plaintiffs were not entitled to be granted a decree for redemption of the alleged mortgage. In the first place, the lower appellate court referred to the circumstance that in the record of rights, exhibit 12, the lands in question are measured in khata No. 257 and 333 of touzi No. 3051 and there is a remark that Ganga Ram was the vendor and Ramlal Rai was the vendee. In the remarks column of khata No. 333 there is a note that the lands have been transferred by a registered document dated 1st June 1897 for a consideration of Rs. 100. There is also evidence to the effect that Ganga Ram did not take any steps to get the entry rectified, though according to the case of the plaintiffs survey entry was wrong. There was a further circumstance that though the due date in the mortgage bond, exhibit 11, was for the year 1309 Fasli no action was taken by Ganga Ram or his heirs to redeem the mortgage bond, though the amount was comparatively small and the area mortgaged was substantial. Finally the lower appellate court took into account the important circumstance that the defendants had applied under Section 112A of the Bihar Tenancy Act for getting the rent of khata No. 333 reduced. There is evidence that rent was in fact reduced by the Rent Reduction Officer and the defendants had been paying rent at the reduced rate to the landlords. In view of these circumstances, the lower appellate court came to the conclusion that the transaction, though in form a usufructuary mortgage, was intended to operate as an outright sale of the lands in question.
5. The main argument addressed by Mr. Balbhadra Prasad Singh is that the lower appellate court was debarred under Section 92 of the Evidence Act from admitting or examining any oral evidence or evidence as to the conduct of the parties to the effect that the transaction was not usufructuary mortgage but an outright sale of the land. It was contended by the learned counsel that the entire evidence with respect to the conduct of the parties must be rejected and it ought to be held upon the clear terms of the document, exhibit 11, itself that the transaction was usufructuary mortgage and that the plaintiffs are entitled to be granted a decree for redemption of the lands mortgaged. Learned counsel founded his argument upon ‘MAUNG KYIN v. MA SHWE LA’, 44 Ind App 236 (PC) in which it was held by the Judicial Committee that as between the parties to an absolute conveyance Section 92 of the Indian Evidence Act (subject to its 1 ro-visos) precluded the giving of oral evidence to prove that the transaction was intended to be a mortgage. Learned counsel also referred to ‘DATTOO v. RAMCHANDRA’, 30 Bom. 119 in which the plaintiff sued to recover possession of land contending that the document under which the defendants held the land, though in form an absolute conveyance, was intended to operate merely as a mortgage. The High Court dismissed the suit holding that the contention of the plaintiff was that the document was accompanied by a contemporaneous oral agreement or statement of intention which must be inferred from the said several circumstances relied on, but that in questions of this kind Courts in India must be guided by Section 92 of the Evidence Act and cannot have recourse to those equitable principles which enable the Court of Chancery to give relief in those cases of which ‘ALDERSON v. WHITE’, (1858) 2 De, G & J 97, or ‘LINCOLN v. WRIGHT’. (1859) 4 De, G & J 16, furnish examples.
6. It was contended on the other hand by Mr. Dasu Sinha on behalf of the respondents that evidence as to subsequent conduct of the parties was not precluded by Section 92 of the Evidence Act. Learned counsel relied in support of his argument upon ‘PREONATH SHAHA v. MADHU SUDAN’, 25 Cal. 603 (FB). But the authority of this case is doubtful in view of the subsequent decision of the Judicial Committee in ‘MAUNG KYIN v. MA SHWE LA’, 44 Ind App 236 (P.C.) in which Lord Shaw observed that the case reported in 25 Cal. 603 and other authorities to the same effect ceased to be of binding authority after the judgment of the Judicial Committee pronounced in the case of ‘BALKISHEN DAS v. LEGGE’, 27 Ind App 58 (PC). The principle that where the words in a deed are clear, evidence of subsequent conduct of parties is irrelevant is also enunciated by Lord Alness in a subsequent case ‘BARABONI COAL CONCERN LTD. v. GOKULANANDA’, 61 Ind App 35 (PC).
7. Upon this survey of the authorities, it is plain that in the present case the evidence of subsequent conduct was not admissible in evidence in view of Section 92 of the Evidence Act and the lower appellate court misdirected itself in taking into account such evidence and in reaching the conclusion that though the document was in form a usufructuary mortgage it should be construed as an outright sale of the land in dispute.
8. The second question in this case is whether the plaintiffs are estopped from claiming redemption of the usufructuary mortgage on the ground that in Section 112A proceedings the defendants had asserted that they were occupancy tenants and as such entitled to apply for reduction of rent. It was pointed out by Mr. Dasu Sinha on behalf of the respondents that in these proceedings the husband of plaintiff No. 1 was impleaded as one of the opposite party. It was argued by the learned counsel that the decision of the revenue officer in 112A proceedings would operate as constructive res judicata since the predecessor-in-interest of the plaintiffs did not raise the point that the defendants were not occupancy tenants of the holding but were only mortgagees. The argu-ment is at first sight attractive but it must be rejected on the ground that the revenue officer conducting 112A proceedings cannot finally adjudicate upon the issue whether the defendants had the status of occupancy raiyats of the holding or not. The jurisdiction of the revenue officer is contingent in the sense that no such jurisdiction can be exercised unless the fact is admitted or established that the defendants had the status of occupancy raiyats and that the holding was an occupancy holding. This is one of the conditions precedent to the jurisdiction of the revenue officer. But the decision of the latter is not binding and conclusive. As pointed out by a Full Bench of this Court in ‘M. B. RAMRANBIJAYA PD. SINGH v. RAMKAMAL UPADHAYA’, 26 Pat. 748, there is inherent lack of jurisdiction on the part of a revenue officer if he proceeds to reduce the rent of a tenant who is not an occupancy raiyat. The legislature has not vested the Revenue Court with the jurisdiction to conclusively determine whether the preliminary state of facts exists. On the contrary the decision of the Revenue Officer on the preliminary facts may be challenged in the civil court in a collateral proceeding, and if it is shown that the preliminary facts do not exist, the civil court will hold that the Revenue officer has acted without jurisdiction. As the decision of the revenue officer on the status of the tenant can be impeached in a civil court in a collateral proceeding it is manifest that no question of constructive res judicata arises in this case.
9. For these reasons I think that this appeal must be allowed and the decree of the lower court must be set aside and the plaintiffs must be granted a preliminary decree for redemption of the lands in dispute. The plaintiffs are granted six months time for depositing the amount due in the court of the Munsif and on the amount being deposited the Munsif will pass a final decree for redemption in the usual terms.
10. I do not propose to make any order as to costs.
11. It is right that I should make it clear that the plaintiffs will have no claim to plot No. 1778 or to the 19 palm trees since it has been found by the lower courts that Ganga Ram has no property either in the plot or in the palm trees.
Sarjoo Prosad, J.
12. I agree.