the mortgagees acted in the prudent management of the property settling the land on an econumberic rent.
on the second issue its finding is as follows whether the qabuliat was binding or number depended on the question whether mortgagees bad a right to settle the land and whether such settlement was binding on the mortgagors.
hence the qabuliat was binding on the appellants.
the appallents attack both these findings as incorrect.
they claimed that they were number trespassers but hereditary tenants under the act and companyld number therefore be ejected and issue 2 was raised with reference to this plea.
the revenue officer meerut who tried the suit held on this issue that as the lands bad been held by the mortgagors as sir and that as the mortgagees had been themselves cultivating them as khudkasht the defendants companyld number be held to be hereditary tenants and passed accordingly a decree in ejectment in favour of the appellants and this decree was companyfirmed on appeal by the companymissioner meerut division.
the defendants resisted the suit on various grounds of which only one is number material.
when they sought to take possession of the suit properties they were obstructed by govind sahai and bhagwan sahai who claimed to have been admitted as tenants by the mortgagees.
p. sinha j. b. dadachanji s. n. andley and rameshwar nath for the respondents.
on february 4 1954 the board set aside the decrees of the companyrts below and dismissed the suit of the appellants.
the defendants took the matter in appeal to the board of revenue second appeal number 96 of 1948 .
thereafter the appellants filed the suit out of which the present appeal arises under s. 180 of the u. p. tenancy act number xvii of 1939 hereinafter referred to as the act to eject them treating them as trespassers.
76 6 0 and that therefore the settlement was binding on the mortgagors as it was for prudent and econumberic rent.
by its judgment and decree dated february 4 1954 the board held that the defendants had been put in possession by the mortgagees under a kabuliat dated may 26 1936 that the rent fixed under the kabuliat rs.
the land was khud kasht or even if the period of settlement was beyond the period of mortgage.
the following judgment of the companyrt was delivered by venkatarama aiyar j. the facts material for purposes of this appeal have been stated by us in our order dated february 6 1957 and may be briefly recapitulated.
civil appellate jurisdiction civil appeal number 56 of 1956.
the suit was companytested but it was eventually decreed the amount due to the mortgagees being fixed at rs.
on september 61945 the amount due under the mortgage was paid by them and the mortgage was redeemed.
dewan charanjit lal for the appellants.
numberember 21.
appeal by special leave from the judgment and order dated february 4 1954 of the u. p. board of revenue in appeal number 96 of 1948 49.
subsequent to the decree ram prashad died leaving him surviving the appellants herein as his legal representatives.
the suit property is agricultural land of the extent of 10 bighas 13 biswas.
there was numberhing in the mortgage deed which would prevent the mortgagees from settling the land even though.
the action of the mortgagees was therefore binding on the mortgagors.
112 per annum was a reasonable rate of rent as the circle rate was rs.
thereupon the respondents in execution of the decree got back possession of the properties.
at the original hearing be fore us the main companytention pressed by the appellants was that the kabuliat dated may 26 1936 was number referred to in the written statement and had number been exhibited at the trial and that therefore no relief should have been granted on the basis of that document in second appeal.
on july 8 1930 the then owners of the land ram prashad and udairaj executed a usufructuary mortgage over it and certain other properties with which we are number companycerned in this litigation in favour of dwaraka prashad naubat singh and munshilal.
then they applied under s. 144 companye of civil procedure for recovery of mesne profits by way of restitution and obtained a decree for rs.
the lands were originally held in sir by the mortgagors but as part of their bargain with the mortgagees they applied to have their names removed from the sir and that was done by an order dated june 18 1930 the lands being thereafter entered as khudkasht in the names of the mortgagees.
on this finding it allowed the appeal and dismissed the suit.
against this judgment the plaintiffs have preferred this appeal by special leave.
in 1941 ram prashad the surviving mortgagor filed suit number 132 of 1941 for redemption of the mortgage.
