Desai, C.J.@mdashThe applicant''s predecessor in title was a fixed rate tenant of the land in dispute and he mortgaged it with possession to the predecessors of the opposite parties. In 1945 the applicant applied u/s 12 of the Agriculturists'' Relief Act contending that the mortgage had been fully discharged out of the usufruct. That application was dismissed in 1945 by the trial court on the ground that it was barred by res judicata on account of a preliminary decree for redemption having been obtained by him previously and he not having deposited the amount in court and having obtained a final decree for redemption. This view of the trial court was confirmed on appeal by the District judge in 1949 and in 1950 this application in revision was filed.
2. In 1952 the ZA and LR Act came into force. It repealed the Agriculturists'' Relief Act. u/s 18(1)(c) of the Act the applicant acquired bhumidhari rights over the land in dispute on account of his being a fixed rate tenant before the abolition of the zamindari and the opposite parties acquired u/s 21(1)(d) rights of assamis on account of their being mortgagees in actual possession from a person belonging to a class mentioned in Section 18(1)(c). Section 202 of the Act lays down that no asami shall be ejected from his holding except as provided in the Act. Section 202 contains the only provisions relating to ejectment of asamis. Under that section an asami is liable to be ejected from his holding on the grounds mentioned in Sections 167, 191 or 206, and, if he is an asami belonging to the class mentioned in Section 21(1)(d), on the ground that the mortgage has been satisfied or the amount due has been deposited in court.
3. On account of the enforcement of the ZA and LR Act resulting in the repeal of the Agriculturists'' Relief Act, a preliminary objection was raised on behalf of the opposite parties against this revision with the contention that after the repeal of the Agriculturists'' Relief Act no redemption of the mortgage can be ordered under that Act and that the opposite parties cannot be ejected except through a suit instituted against them u/s 202 of the ZA and LR Act on the ground mentioned in Clause (c) of it. The opposite parties relied on a decision of our brother V. Bhargava, in Ram Swarup Dikshit v. Jang Bahadur Singh CR No. 786 of 1953 dated the July 19, 1960 to the effect that no application u/s 12 of the Agriculturists'' Relief Act can be allowed against a mortgagee who under the ZA and LR Act has acquired asami rights. Sri A.P. Pandey, on the other hand, relied on a decision of our brother Srivastava in Radha Mohan Singh v. Mst. Mahesh Kuar 1961 AWR (HC) 302 laying down that an application u/s 12 of the Agriculturists'' Relief Act can be proceeded with upto the stage of declaration that the mortgage/stands redeemed and that only for the purposes of dispossession of the mortgagee asami a suit u/s 202 of the ZA and LR Act is necessary. We have heard arguments on both sides and are satisfied that the view of our brother V. Bhargava should prevail.
4. After the repeal of the Agriculturists'' Relief Act an action can be taken u/s 12 of it unless it be held that the intention of the Legislature repealing it was that no action should be taken under it after the repeal. Section 6(c) of the UP General Clauses Act provides that, unless a different intention appears, the repeal of an Act by an Uttar Pradesh Act shall not affect any right or liability acquired or incurred under the repealed Act and shall not affect any remedy or legal proceedings commenced before the repealing Act in respect of any such right or liability and the legal proceedings would be continued and the remedy would be enforced as if the repealing Act had not been passed. In a proceeding u/s 12 of the Agriculturists'' Relief Act if the court was satisfied that the applicant was entitled to redeem the mortgage and that the mortgage stood redeemed or that the amount deposited by him was sufficient for its redemption, it would order that the mortgage be redeemed, that the money deposited should be paid to the mortgagee and that the title deeds in possession of the mortgagees be deposited in court to be delivered to the mortgagor and, if necessary, put the applicant in possession of the mortgaged property. The words "if necessary" meant "if required by the nature of the mortgage." If the mortgage was a simple mortgage there was no necessity of putting the applicant in possession of the mortgaged property because he was already in possession. If the mortgage was, on the other hand, a usufructary mortgage, after the redemption the mortgagee was not entitled to remain in possession and it became necessary to restore possession to the applicant. Therefore, what was meant by Section 18 of the Agriculturists'' Relief Act was that in case of a usufructuary mortgage the court while ordering redemption was also required to restore possession of the mortgaged property to the applicant. It was thus clear that the redemption of a usufructuary mortgage under the Agriculturists'' Relief Act involved not merely a declaration that it stood redeemed but also putting the applicant into possession. Putting him into possession could not be separated from the declaration that the mortgage stood redeemed. The Court could not content itself with only making the declaration; it was bound at the same time to put the applicant into possession. When our learned brother Srivastava said in his judgment that a court u/s 12 of the Agriculturists'' Relief Act could simply make a declaration and refrain from passing an order of restoration to the applicant, we respectfully differ from him. In our opinion it would be impossible for the court simply to make a declaration that the mortgage stands redeemed; in the case of a usufructuary mortgage it must follow up the declaration with an order of restoration of possession. It follows that if it cannot make an order of restoration of possession, it can not make a declaration even; Sections 12 and 18 of the Act do not at all contemplate that in the case of a usufructuary mortgage the court could only make a declaration and refrain from ordering restoration of possession.
5. The Legislature provided for ejectment of the mortgagee through a suit u/s 202 of the ZA and LR Act on the ground mentioned in Clause (c). All the relief to which the mortgagor would be entitled, if he had filed an application u/s 12 of the repealed Act, could be obtained by him through such a suit. In a proceeding u/s 12 of the Agriculturists Relief Act he had to prove that the mortgage stood redeemed, and, if he proved this fact in a suit u/s 202 of the ZA and LR Act, he would be entitled to a decree for possession. Thus all the relief that be could get in a proceeding u/s 12 of the Agriculturists'' Relief Act was made available to him by the ZA and LR Act. I could never have been intended by the framers of the Act that even after the repeal of the Agriculturists'' Relief Act the mortgagor could make an application u/s 12 of the Agriculturists Relief Act just to get a declaration that the mortgage was redeemed and then file a suit for ejectment of the mortgagee u/s 202 of the ZA and LR Act. It would have been useless for the framers to require the mortgagor to go to court simply to get a finding about satisfaction of the mortgage when the same finding could be given in a suit u/s 202 of the ZA and LR Act and when this finding by itself would be of no use to the mortgagor In the case of a usufructuary mortgage the mortgagor is interested in getting back the possession and not in getting a mere declaration that the mortgage stood discharged. If u/s 12 of the Ag. R. Act he could get a declaration it would be no remedy at all and the proceeding u/s 12 of this Act would be for all practical purposes a useless one. The Legislature, when it repealed the Agriculturists'' Relief Act and enacted S. 202 of the ZA and LR Act, could not have intended that in spite of the repeal the proceeding u/s 12 would be continued. We have no doubt that by providing for the very relief that could be obtained in a proceeding u/s 12 of the Ag. R. Act the Legislature clearly intended that after the repeal of the Ag. R. Act no proceeding u/s 12 of the repealed Act could be continued. Our brother Srivastava, though he has referred to S. 6 of the General Clauses Act did not consider how for the enactment of S 202 of the ZA and LR Act indicate an intention on the part of the Legislature that no proceeding should be continued u/s 12 of the Agriculturists'' Relief Act after its repeal.
6. Once it is found that S. 12 of the Agriculturists'' Relief Act stands repealed and that the Legislature intended that a proceeding under that section pending on the date of the repeal shall not be continued and that a right or liability acquired or incurred under that Act shall not be enforced, it must be held that we cannot allow this application now.
7. As we said earlier, redemption of a usufructuary mortgage necessarily involves dispossess on or ejectment of the mortgagee. That dispossession of the mortgagee amounts to redemption is made clear by S. 202, Cl. (c) of the ZA and LR Act. When it permits an ejectment of a mortgagee on the ground that the mortgage has been satisfied it means that his dispossession on redemption of the mortgage is nothing but his ejectment. Under S. 200 of the ZA and LR Act no asami can be ejected from his holding except as provided in the ZA and LR Act. Consequently the opposite parties, who are now asamis, cannot be ejected or dispossessed on any ground except through a suit filed u/s 202. The remedy of the applicant, after the repeal of the Agri. Relief Act, was to file a suit for their ejectment u/s 202 on the ground that the mortgage had been satisfied. It is impossible for him to eject them through a proceeding u/s 12 of the Agriculturists'' Relief Act.
8. Accordingly we dismiss this application but would make no order as to costs.
