JUDGMENT
Kaul, J.
1. This is a defendants’ appeal in a suit brought under Section 60 of the Transfer of Property Act for redemption of a mortgage dated 14-11-1895.
2. It was averred that a mortgage was created by Netra Singh and Mst. Dulari in favour of Hans Ram Singh and Hulam Singh for a consideration of Rs. 500/-. It was a mortgage with possession. Plaintiff Ghanshyam Singh claiming to be an adopted son of Netra Singh brought the suit which has given rise to this appeal on the allegation that the mortgage money had been paid off from the usufruct of the property mortgaged and that he was entitled to redemption without payment of any money.
The defendants were the representatives in interest of the original mortgagees. They denied that Ghanshyam Singh was the adopted son of Netra Singh and pleaded that the mortgaged property consisted of ex-proprietary tenancy and occupancy tenancy lands; that a mortgage of such land was void in law; that the defendants were in possession as proprietors and not as mortgagees. They further urged that the mortgage money had not been paid out of the usufruct of the mortgaged property.
3. It appears that previous to the institution of the present suit the mortgagors had filed an application under Section 12 of the Agriculturists’ Relief Act for redemption. That was dismissed, as one of the mortgagors was found not to be an agriculturist.
On the pleadings set out above, the trial court
held on the evidence before it, that the plaintiff
was proved to be the adopted son of Netra Singh;
that the property mortgaged being ex-proprietary
tenancy and occupancy tenancy lands the mort
gage was void in law. It further held that the
mortgage money had not been paid up out of the
usufruct of the mortgaged property. It held,
however, that, in the circumstances of the case,
equities should be adjusted between the parties
and possession of the defendants being permissive,
no question of limitation could arise. It held the
plaintiffs entitled to redemption of the mortgage on
payment of the mortgage money of Rs. 500/-. It
passed a preliminary decree for redemption. It is
stated that the mortgage money was deposited by
the mortgagor and possession has been obtained
by him.
4. Dissatisfied with this decision the defendants appealed. The finding of the trial Court that the plaintiff was the adopted son of Netra Singh was confirmed on appeal. The appellate court was further of opinion that the plaintiff was entitled to get possession of his property on payment of Rs. 500/- and it dismissed the appeal. The present appeal was preferred by the defendants against this decision.
5. It was contended by the learned counsel for the appellant that the mortgage being void no suit for redemption could lie. In case the plaintiff sought any further relief he should be asked to bring a suit in a proper form seeking such relief.
I am clear that there is no substance in this contention. The principle laid down by a Full Bench of this Court in Mahabal Singh v. Ram Raj, 1950 All 604 (AIR V 37) (A) applies to this case.
It was held in that case that in cases of void mortgages, which under the law could not be mortgages, the mortgagor is entitled to recover possession subject to payment of the money received from the mortgagees, and no question of limitation arises in the case. The possession of the mortgagee is permissive possession and the, only right he has is to be allowed to claim the money which the mortgagor had received from him. In this view of the matter the plaintiff is entitled to get back possession of his property.
6. If instead of bringing a suit for possession, the mortgagor brought a suit for redemption there can be no good ground for refusing him the relief asked for, or strictly speaking the relief to which he is entitled. Under our law of procedure a party is entitled to state facts and to ask for, appropriate relief. It is always open to the court to grant the party entitled to a relief other than what he asked for, any appropriate relief to which he might be entitled. The form of the suit is of no consequence unless it has the effect of prejudicing the opposite party in his defence.
It was contended by the learned counsel for the appellant that the claim being for recovery of possession of an ex-proprietary tenancy land and occupancy tenancy land, the civil Court had no jurisdiction, and that the suit should be brought in the Revenue Court. I am of opinion that this contention cannot be upheld. Though in form it was a suit for redemption, in fact it was a suit for recovery of possession on payment of the amount which was received by the mortgagor.
The court in granting this relief is not adjusting the rights of the parties under the mortgage. It was a void mortgage and no party acquired any rights under it. The court in granting relief would be adjusting equities between the parties. This could be done only by the civil court and not by the Revenue Court. Sections 59, 10 and 182 of the U. P. Tenancy Act have no application.
Lastly, it was argued that the defendants may have acquired some rights in these plots under the law which came into force since the decision of the trial court was given. Obviously if any such rights have been acquired by the defendants under a law that came into, force after the decision of the trial court was given, the decree that is passed in this case will be subject to such rights.
7. I should, however, like to point out that the Courts were in error in passing a decree for redemption. The proper form of the decree should be a decree for possession on payment of the amount received by the mortgagor from the mortgagee i.e. Rs. 500/-.
8. The appeal is dismissed with costs but the decree that is prepared in this court, shall be a decree for possession of the property comprised in the deed dated 14-11-1895 subject to payment of Rs. 500/- by the plaintiff to the defendants. It was stated before me that a sum of Rs. 500/-was deposited by the plaintiff in court for payment to the defendants. If the sum of Rs. 500/-has been paid already to the defendants or deposited in Court for payment to them no fresh payment need be made.
