This second appeal is by defendant No. 2 and raises some interesting points of law. The plaintiffs' case is that the disputed land formerly belonged to Shaikh Dhanu in jote right. Shaikh Dhanu afterwards died leaving behind his four sons, namely, Abdul Jabbar, Abdul Malek and the plaintiffs 2 and 4, his wife the plaintiff No. 3, as his heirs. While these heirs were in possession of the properties left by Sheikh Dhanu, Abdul Jabbar and Abdul Malek borrowed a sum of Rs. 300 from the defendant No. 1 and kot-mortgage the land on the 14th Kartik 1355 B. S. Corresponding to 4-11-1948 and delivered possession of these lands in favour of the defendant No. 1. Thereafter Jabbar and Abdul Malek died leaving behind the plaintiffs 2, 3 and 4 as their heirs. Plaintiffs 3 and 4 however sold the disputed plots 1 and 2 to the plaintiff No. 1 for a sum of Rs. 900 by executing a registered kabala in his favour on the 18th Bhadra, 1364 B. S. Corresponding to 4-9-57. The defendant No. 1 was still in possession of the suit lands and he derived paddy from the suit lands annually at the rate of 12 mds. Per kedar, 4 mds. Of paddy were spent annually towards the cultivation costs per kedar.
Hence the not profit derived from the suit land was 24 mds. Of paddy. Average price of paddy per md. Was Rs.
15. Hence it was claimed that the defendant No. 1 derived more than double of the amount of Rs. 300 borrowed from him. Hence the plaintiffs brought this suit for redemption of the suit lands after declaration of their title.
The defendant No. 1 entered appearance and filed a written statement and subsequently an additional written statement denying all the allegations of the plaintiffs but he did not ultimately contest the suit.
After the defendant No. 1 had filed his written statement the plaintiffs impleaded defendants Nos. 2 to 5 as a question was raised in para. 7 of the defendant No. 1's first written statement that the suit was not maintainable in the absence of the other co--sharer landlords. Thereafter defendant No. 2 filed a separate written statement and he alone contested the suit. He has denied all the allegations of the plaintiffs and contends inter alia that the disputed plot belonged to the defendants 1-5 in their khas khamar. Shaikh Dhanu had taken jote settlement of the same from the defendants 1-5 by executing a kabuliyat in their favour. Subsequently he found it difficult to possess the suit lands and as such he abandoned the same and left the place without making any arrangement for payment of rent and went to live in the villag. Chandpur in the dry season of 1352 B. S. Since then the defendants have been in occupation of the suit lands. The story of the mortgage of the suit lands to the defendant No. 1 is false and the defendant No. 1 did never possess the suit lands as such. The plaintiff No. 1 is a helpless and poor man and he serves in the house of one Kala Mian with whom the defendants are on inimical terms. At the instigation of Kala Mian the plaintiff No. 1 might have created some collusive and false mortgage deed and kabala and has therefore instituted this suit. Hence the present suit should be dismissed as frivolous.
The trial Court marked the mortgage deed as Exh.
3. The deed was not attested by the requisite two witnesses as will appear from the evidence of P. W. 6 Md. Kala Mian. The learned. Munsif on an analysis of the evidence came to the conclusion that the plaintiffs had jote right in all the three disputed plots. He further held that the defendant No. 1 entered into possession of the suit land on the strength of Exh. 3 which was made to be a kot-mortgage deed by the parties at the time of its execution though in the eye of law this document could not be treated as anything but a money bond. The possession of the defendant No. 1 in the suit land could not therefore, be treated as forcible or adverse to the plaintiff.
The learned Munsif further held that the defendant No. 1 possessed the suit land on behalf of the plaintiffs since the execution of the deed Exh.
3. As such he held that Article 3 of the Schedule 2 of the Sylhet Tenancy Act had no application to the case nor was the suit barred by general and special law of limitation. He therefore held that the heirs of Sheikh Dhanu namely plaintiffs Nos. 2-4 and plaintiff No. t the vendee of plaintiffs Nos. 3 and 4 had jote right in the disputed land. Therefore he declared that the plaintiffs would be entitled to recover possession of the suit land on payment of Rs. 300 to defendant No. 1 within 3 months from that order.
The defendant No. 2 appealed from this decision. The plaintiffs also filed a cross appeal regarding the order of payment of the sum of Rs 300. The learned Subordinate Judge on an analysis of the evidence rejected the defence contention of abandonment of the suit land and concurred with the learned Munsif to the effect that defendant No. 1 was in possession of the suit land on the strength of kot-mortgage bond Exh. 3 and held further that it was defendant No. 1 who had inducted the other defendants into the land. The learned Subordinate Judge held that Exh. 3 could not be treated as a mortgage bond due to the bar of provisions of section 59 of the Transfer of Property Act but it could be treated as a simple money bond for a loan of Rs. 300 and held that the defendant No. t was entitled to recover not more than Rs. 600 on the said bond in accordance with section 30 of the Many Lenders Act and found that the possession for 10 years and his enjoyment of the usufruct of the land was sufficient to repay the sum of Rs. 300 in order to get back khas possession of the land. As such he dismissed the appeal and allowed the cross appeal. Hence this appeal.
Mr. Moinul Huq, appearing on behalf of the appellant firs argued that this is a simple suit for redemption and as such then could not be any decree ; for recovery of possession against the non-mortgagees. In this connection it must be remembered that the suit was originally filed as a simple suit for redemption. It was only pursuant to the statement made in paragraph 7 of the written statement filed by defendant No. 1 that the other defendants were impleaded. It is the clear cut case of the defendants that they were in possession of the suit land because of the fact that the suit land was abandoned by the original tenant Shaikh Dhanu and all the defendants who were the land--lords had entered into possession because of the abandonment. This was defendant's own case and it is at their own instance they were impleaded. Therefore the possession of the defendants Nos. 2-4 could be adjudicated upon by the Court. I do not see any bar to the same. On the other hand it is better that the rights of the parties should be determined finally when all the parties are before the Court. The question then arises regarding the nature of the suit and whether the possession of the defendants Nos. 2-4 would be that of trespassers. Both the Courts below have concurrently disbelieved the fact of abandonment of the suit lands by Shaikh Dhanu and the re-entry of the landlords. This is a question of fact which I must accept as established. Therefore now the position is that the possession of defendant No. 1 in the suit land was pursuant to the contract embodied in Exh.
3. If that contract legally subsists then in the eye of law the possession of the disputed land by defendant No. 1 would be that of a person under the said contract. The case of abandon--ment and re-entry not having been accepted by both the Courts below the only position which the defendants 2-4 can be relegated to is that of representatives of defendant No. 1 and as such the defendants Nos. 2-4 would also be bound by the contract entered into by the defendant No. 1. Mr. Moinul Huq has rightly argued that the learned Subordinate Judge made out a new case of defendant No. 1 having inducted the defendants Nos. 2-4 on to the suit land. No case of induction by defen--dant No. 1 has been made out. Nevertheless, the position is as I have already stated that if the contract embodied in Exh. 3 subsists then all the defendants other than defendant No. 1 should be deemed to be mere representatives of defendant No. 1 and as such bound by the contract entered into by the defendant No. 1 and as the defendants Nos. 2-4 have been impleaded in this suit at their own instance, I do not see any bar to a decree being passed against them also.
The most important point which arises in this case, however, is whether the suit for redemption is maintainable in view of the finding of both the Courts below that the kot-mortgage deed Exh. 3 is inadmissible in evidence as the same was not attested by two witnesses as required by section 59 of the Transfer of Property Act. It seems to me. However, that there has been some misconception of the nature of the transaction in the Courts below resulting in consideration of matters which were actually irrelevant. The property mortgaged was admittedly a jote right and the property was situated in Sylhet. Therefore the trans--action must be governed by the Sylhet Tenancy Act and not by the Transfer of Property Act. The transaction was entered into on 4-11-48 when the amended section 34 of the Sylhet Tenancy Act was in force. The amended section 34 of the Sylhet Tenancy Act reads as follows: 34.-(1) An occupancy raiyat may enter into a complete usufructuary mortgage in respect of his holding or a portion or share thereof for any period which does not or cannot, iii any possible event, by any agreement express or implied, exceed nine years, and notwithstanding anything contained in this Act or in any other law or in any contract, no other form of usufructuary mortgage so entered into after the commencement of this Act shall have any force or effect.
(2) Notwithstanding anything contained in this Act or in any other law or in any contract, every usufructuary mortgage subsisting on the date on which the Sylhet Tenancy (Amend--ment) Act, 1943 comes into force which was so entered into before the commencement of this Act shall be deemed to have taken effect as a complete usufructuary mortgage for the period mentioned in the instrument or for twelve years, whichever is less.
(3) Notwithstanding any contract to the contrary entered into before or after the commencement of this Act such a complete usufructuary mortgage or a mortgage referred to in subsection (2) may be redeemed at any time before the expiry of the period referred to in subsection (1) or subsection (2), as the case may be.
(4) Every complete usufructuary mortgage entered into after the commencement of this Act shall be registered under the Indian Registration Act, 1908.
(5) Notwithstanding anything contained in this Act or in any other law, no document creating or purporting to create (a) any other form of usufructuary mortgage or (b) a complete usufructuary mortgage for a period exceeding nine years shall be received in evidence or acted upon in any Court or by any public servant Provided that such a document executed before the com-- mencement of this Act may be so received in evidence or so acted upon as a complete usufructuary mortgage for the period mentioned therein or twelve years, whichever is less.
(6) Notwithstanding anything contained in this Act or in any other law or in any contract, the consideration (with all interest thereon). For a complete usufructuary mortgage or for any other form of usufructuary mortgage deemed under sub--section (2) to have taken effect as a complete usufructuary mortgage entered into by an occupancy raiyat in respect of his holding or a portion or share thereof, shall be deemed to have been extinguished on the expiry of the period-- -
(a) mentioned in the instrument of the mortgage, or
(b) of twelve years, whichever is less, from the date of the registration of the instrument, where there is no registered instrument, from the date of the mortgagee's entry into possession, and the mortgagor shall thereupon become entitled to possession of the mortgaged holdings, and he may, if he is not forthwith given possession, apply to the Court or to a Revenue Officer to be restored thereto: Provided that, if in the case of such a mortgage subsisting on the date on which the Sylhet Tenancy (Amendment) Act, 1943 comes into force, the said period has, on the date of the commencement of the said Act, already expired, the mortgagor shall, immediately on the commencement of the said Act, become entitled to 'possession of the mortgaged holding, but he shall not be entitled to, nor shall the mortgage be liable for, any compensation in respect of the mortgagee's possession from the date of the expiry of the said period to the date of the commencement of the said Act.
(7) An application under subsection (6) shall be accompanied by a process fee of the prescribed amount for service of notice on the mortgagee, and the Court or Revenue Officer to whom such an application is made, may, after service of such notice, award to the mortgagor such compensation as appears equitable in respect of the period during which the mortgagee retained possession after the date on which the mortgagor became entitled to be restored to possession, and may pass an order restoring the possession of the land mortgaged to the mortgagor, and such order shall have the effect of a decree of a Civil Court.
Explanation.-A "complete usufructuary mortgage" means a transfer by a tenant of the right of possession in any land for the purpose of securing the payment of money or the return of grain advanced or to be advanced by way of loan, upon the con--dition that the loan with all interest thereon, shall be deemed to be extinguished by the profits arising from the land during the period of the mortgage."
A careful reading of the section will show that the provisions of this section would prevail over other enact--ments or law and the object of the Legislature was to ensure that the mortgagor gets back the property after the expiry of the period mentioned in the said section. The only other enactment which has been referred to as applicable is the Registration Act, 1908. Subsection (4) of section 34 lays down that every complete usufructuary mortgage entered into after the commencement of the Act shall be registered under the Registration Act, 1908. Now, Registration Act, 1908 does not, anywhere lay down that a document has to be attested before it can be registered. The requirement of attestation finds place only in section 59 of the Transfer of Property Act, which as 1 have already stated, is not applicable to the transaction in question. I therefore, hold that the document Exh. 3 was a valid document under the law governing it, namely, Sylhet Tenancy Act, and was admissible in evidence legally as it was admittedly registered as required by section 34, subsection (4) of the Sylhet Tenancy Act. The period mentioned in the document is one year.
Therefore the mortgagor would be entitled to restoration of possession on 4-11-1949 in accordance with provisions of section 34, subsection (6) (a). The other period of limitation mentioned in section 34, subsection (6) (b) also expired on 4-11-1960. Therefore the mortgagors were clearly entitled to be put into possession of the mortgaged holding by a simple application mentioned under section 34, subsection (6)(b). It does not appear that any limitation has been provided for such an application. The special limitation as provided in Schedule 3 is not applicable inasmuch as there has been no dispossession in this case and the general law of limitation of redemption of mortgage will apply. The learned Subordinate Judge was also quite correct in holding that the defendant No. 1 was not entitled to payment of Rs. 300 as was held by the learned Munsif. The decision is in accordance with the provisions of section 34 of the Sylhet Tenancy Act. It was a complete usufructuary mortgage and defendant No. 1 had received more usufruct than that laid down in the statute.
I therefore dismiss the Second Appeal and confirm the judgment and decree passed by the learned Subordinate Judge. In the facts and circumstances of the case I make no order as to costs.