In a suit for redemption under Section 12 of the U.P. Agriculturists Relief Act, the court has jurisdiction to determine the question of tenancy raised by a person claiming as a tenant of the mortgaged property, if necessary to grant appropriate relief to the plaintiff. An objection of misjoinder of parties or causes of action is waived if not raised at the earliest opportunity.

ASTHANA, J.:- One Khedu was the tenant of plots nos.141 and 152. He mortgaged these plots with passession to one Bhuttoo by means of the mortgage deed dated 14-6-1908. Soros time after the mortgage Khedu died. His son Deep Chand made an application under S.12, U.P. Agriculturists Relief Act for the redemption of the mortgage on the allegation that the mortgage debt was paid up from the usufruct of the mortgaged property. He also claimed possession over the above plots. Besides the mortgagee Bhuttoo one other person, viz., Jaddu Koeri whose name was entered in the revenue papers over the aforesaid plots was also impleaded as a defendant in the case on the allegation that he had been set up by the mortgagee and his name in the revenue papers was merely fictitious and that in fact the mortgagee Bhuttoo was in possession of the mortgaged property.

2. The mortgagee Bhuttoo did not contest the suit. Jaddu Koeri alone contested the suit and his defence was that the plaintiff Deep Chand was not entitled to redemption as Khedu had sold his equity of redemption in respect of the aforesaid plots to Azim and Brijraj Tewari and they had reliquished their rights in favour of the zamindar who admitted him as the tenant of the disputed plots.

3. The trial court framed seven issues in the case which are as follows:

1. Whether the plaintiff is a tenant and entitled to sue?

2. Whether Bhuttoo is the mortgagee?

3. Whether the mortgage as alleged exists?

4. Whether defendant No.2 is tenant?

5. Whether the mortgage money has been paid up. If not how much is due?

6. To what relief is the plaintiff entitled?

7. Whether the suit is barred by S.10, Civil P.C?

4. The finding of the trial court was that the plaintiff Deep Chand was the tenant of the aforesaid plots and was entitled to redemption, that Bhuttoo was really the mortgagee of these plots and in possession of them as such, that Jaddu Koeri was not the tenant of these plots and his name in the papers was fictitious and he was really a man of the mortgagee and that the mortgage money was paid up and the plaintiff was entitled to redemption and possession over the mortgaged property. Jaddu Koeri filed an appeal against this decision before the District Judge of Ghazipur and the finding of the trial court was upheld and the appeal was dismissed with costs. Against this decision Jaddu Koeri filed a revision to this Court which was heard by a learned Single Judge.

It appears from his judgment that the only point which was raised before him on behalf of the applicant was that the question of the status of the applicant should not have been gone into by the courts below in a case under S.12, U.P. Agriculturists Relief Act. In support of this contention reliance was placed on two single Judge cases of -Jagarnath Sahu v. Srikant Dube, AIR 1949 All 589 (A) and Ram Datt Singh v. Ajodhia Singh, 1950 All L.J. 878 (B). It was held in both these cases that the scope of S.12, of the Act did not permit an investigation into the question of tenancy of a person claiming as a tenant of the property mortgaged. Sri Bhargava for the plaintiff relied on the case of -Ram Kripal v. Bhagwati Saran, AIR 1949 All 318 (C), in support of his contention that the rule did not apply to the facts of the present case. In view of the conflicting decisions on the question of law the learned Single Judge has referred the question to a Bench for decision.

5. The question for consideration is whether it was open to the plaintiff to implead the applicant as defendant on the allegation that he was really not in possession of the mortgaged property but his name was entered in the revenue papers over it as benamidar at the instance of the real mortgagee who was in possession of it and whether the court could decide the question of tenancy raised by him.

6. The first case relied on behalf of the applicant is that of AIR 1949 All 589 (A). It was held in this case by Seth, J. that the jurisdiction of a court deciding an application under S.12, U.