JUDGMENT : These two connected second appeals arise out of two connected suits (suit Nos. 3 and 4 of 1951) filed in the civil court for possession over certain plots of agricultural land. Bhundal Singh and Badri Singh, sons of Dalip Singh were plaintiffs in both the suits, while Bodhan and Ramapati were defendants in suit No. 4 of 1951 and a Sumiran and Bodhan were defendants in suit No. 3 of 1951. In both the suits it was alleged by the plaintiffs that Smt. Rajjo, an occupancy tenant of the disputed plots, executed a deed of gift in favour of Dalip Singh, father of the plaintiffs, on 2nd October 1888, and Dalip Singh entered into possession under it. On 15th May 1915 Dalip Singh mortgaged with possession by means of a deed of mortgage the plots involved in suit No. 3 of 1951 Ram Bharos who is dead and is now represented by his son Bodhan defendant No. 1. Ramapati defendant No. 2 in that suit was said to be in possession of one of the plots as transferee from Bodhan and was thus impleaded as a co-defendant. On the same date i.e. 15th May 1915. Dalip Singh mortgaged with possession by means of another deed the plots involved in suit No. 4 to Sumiran defendant No. 1 and Ram Bharos, father of Bodhan defendant No. 2. The defendants as

according to the plaintiffs, had, continued in possession as mortgages. Applications for redemption and recovery of possession under Sec. 12 of the U.P. Agriculturists Relief Act were filed against them by plaintiffs but they were dismissed on that since the mortgages related to occupancy tenancy and were thus not valid, no proceedings with, respect to them could be taken under Section 12 of the said Act. Thereafter the petitions filed the suits which have given rise to these appeals. In both the suits it was denied by the defendants that they were in possession of the disputed plots under the mortgages alleged to have been executed by Dalip Singh or that any title passed to Dalip Singh under the deed of gift executed by Smt. Rajjo. They alleged that in consequence of procedure taken by Zamindar upon the death of Smt. Rajjo in possession were dispossessed from plots Nos. 696, 717, 1041 and 1180 and the land to the Zamindar who entered into possession and that the Zamindar settled the said plots with defendants. About plot No. 708 it was said that on partition among Zamindars, it was allotted to Ram Bharos who remained in possession as Zamindars. A number of other pleas were also taken. The trial court dismissed the suits, but on appeal the learned District Judge decreed Suit No. 3 of 1951 for plots Nos. 696 and 717 subject to the payment of Rs. 300/- and suit No. 4 of 1951 involving plots Nos. 1011 and 1180 in entirety subject to the payment of Rs. 299/-. He, however, dismissed suit No. 3 of 1951 for plot No. 708.

2. At the outset it way contended before me by the learned Counsel for the appellant that the petitions could have obtained relief in the revenue courts under Sec. 180 of the U.P. Tenancy Act of 1938 and the civil court had, therefore, no jurisdiction to entertain the suits. This is contention is clearly unsustainable. It would appear that although the plea of want of jurisdiction in the Civil court to entertain the suits had been taken in the written statement it was subsequently abandoned and no issue on the question of jurisdiction struck by the trial court. Further, the plea was neither urged before the lower appellate court was it made a ground of objection in the memorandum of appeal filed in this Court, frequently because it was thought that according made in the Full Bench case of Mahabal Singh v. Raj 1950 All WR 624 (AIR 1960 All 624) (FB) the suit was maintainable to these circumstances the plea of jurisdiction cannot be allowed to be raised at this stage :

3. Coming to the merits of the cases, it is clear that Smt. Rajjo, who was admittedly the sole occupancy Tenancy that of the plots in suit, was not competent transfer her interest, and the gift deed executed by her on 2n