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PETITIONER: MEHARBANSINGH

       Vs.

RESPONDENT: BHAGWANTSINGH AND OTHERS

DATE OF JUDGMENT17/01/1980

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. VENKATARAMIAH, E.S. (J)

CITATION:  1980 AIR  696            1980 SCR  (2) 790  1980 SCC  (2) 284

ACT:      Madhya Bharat  Zamindari Abolition  Act, 1951-S.  4(2)- Scope of.

HEADNOTE:      By  virtue   of  section  3(1)  of  the  Madhya  Bharat Zamindari Abolition  Act, 1951,  rights  of  proprietors  in villages,  Muhalas  and  Chaks  or  blocks  settled  on  the zamindari  system   vested  in   the  State  free  from  all encumbrances. In  so far  as the  mortgages were concerned a mortgage  with   possession  which   existed  on   the  date immediately preceding  the date  of vesting  of the property was deemed  to have  been substituted  by a simple mortgage. The mortgagee who was in possession of lands under a deed of mortgage,  for   example  a   usufructuary  mortgage,   lost possession of the lands by operation of law and his mortgage became a  simple mortgage  from the  date of  vesting of the lands in  the State.  On the  other hand a mortgagor who was once  the   proprietor  of   the  lands,   though  lost  his proprietary right  in the  lands because of their vesting in the State,  had to  fulfil his  obligation as a mortgagor to the extent  of the  amount secured  under the  mortgage.  To alleviate the  lot of  such proprietors  section 4(2) of the Act provided that notwithstanding anything contained in sub- section  (1)  a  proprietor  shall  continue  to  remain  in possession of  his khud-kasht land so recorded in the annual village papers  before the  date of  vesting. The expression khud-kasht is  defined  to  mean  "land  cultivated  by  the Zamindar himself  or through  employees or hired labourers". If a  person was  a zamindar and cultivated the land himself or through  employees or  hired labourers  that would be his khud-kasht cultivation within the meaning of section 2(c) of the Act,  that is,  in a  given case  if it was shown that a proprietor had  khud-kasht land which was so recorded in the annual village  papers before  the date  of vesting  of  the lands in the State, he was entitled to continue to remain in possession of those lands. Section 37(1) provides that every proprietor who  is divested  of his proprietary rights shall be a  pacca tenant  of the khud-kasht land in his possession and the  land revenue  payable by him shall be determined at the rates  fixed by the current settlement for the same kind of land.

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    In  the   present  case,   the  plaintiff’s   suit  for redemption  of   the  mortgage  which  was  an  usufructuary mortgage, was  decreed by  the trial court in respect of the relief of  redemption but  the claim  in regard to the mesne profits was  disallowed. Against  that decree  three appeals were filed  before the District Court, one of them being the appeal by  the plaintiffs  challenging the  refusal  by  the trial court  to grant  mesne profits. The plaintiff’s appeal was partly  allowed granting  mesne profits from the date of deposit of  the mortgage  money  in  court.  The  other  two appeals were  dismissed. The  matter was  taken in appeal to the High  Court by  the defendants  in  second  appeal.  The plaintiffs also  preferred a  second  appeal  claiming  full relief in  so far  as mesne profits were concerned. The High Court partly allowed the defendants’ appeal holding that the plaintiffs were  entitled to  redeem the  mortgage by paying the 791 mortgage money  but were  not entitled  to get possession of the mortgaged  land, since  according to the High Court, the proprietary rights including the right to get possession had become vested  in the  State under  the  aforesaid  Act.  It further held that the plaintiffs were only entitled to claim compensation  from   the  Government   in  lieu   of   their proprietary rights  after redeeming  the mortgage  by making payment of  the mortgage  money. Against  the decree  of the High Court, the plaintiffs filed an appeal before this Court in Meharban Singh & Ors. v. Naresh Singh & Ors. [1970] 3 SCR 18. This  Court set  aside the  decree of the High Court and remitted the  case back  to  the  High  Court  for  a  fresh decision on  the question  whether the lands in dispute were khud-kasht lands and to pass a decree for possession if they were found  to be so in view of sections 4(1)(f) and 4(2) of the Act.  After the  case went  back to  the High Court, the State Government  was impleaded  as a  party to the suit and was  permitted   to  file   a  written   statement.  Certain additional issues were raised by the High Court on the basis of the  new pleadings.  The High  Court sent the case to the trial court  for recording its finding on the issue ’whether the  land   in  dispute  was  recorded  as  khud-kasht  land immediately before  the date  of vesting?’  after giving the parties an  opportunity to  adduce further  evidence on  the said additional  issue and to resubmit the record to it. The trial court  held that  the suit land was khud-kasht land in possession of  the plaintiffs  before the date of vesting of the estate and submitted the said finding to the High Court. The said  finding was  not in  fact disputed before the High Court. All that the High Court was to decide was whether the plaintiffs were  entitled to  the benefit of sub-section (2) of section  4 of  the Act but the High Court once again took the view  that the  plaintiffs  were  not  entitled  to  get possession of  the suit lands although they were entitled to a decree  for redemption.  It is against the judgment of the High Court, the above appeal has been filed.      Allowing the  appeal and  restoring the  decree of  the Court of first appeal, ^      HELD: When  the case  went back  to the  High Court all that the  High Court was to decide was whether the appellant was entitled  to the  benefit of  section 4(2) of the Act in terms of  the directions  given by  this  Court.  Since  the plaintiffs were  the proprietors of the suit lands there can be no  dispute that till the time of mortgage the suit lands were in  their possession.  Secondly since  the  lands  were recorded as khud-kasht lands of the mortgagors in the annual

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village papers before the date of vesting, they were clearly entitled to a decree for possession in terms of section 4(2) and there  was no occasion for the High Court to examine the consequences of  their losing  the possession  of the  lands after the  mortgage. When section 4(1) (f) read with s. 4(2) gave the  mortgagor the  benefit of  the right  to remain in possession of  his khud-kasht,  which was  in his possession upto the  date of  mortgage, there could be no reason why it should be denied to the plaintiffs. It was found on evidence by the  first court  of  appeal  that  the  mortgagors  were themselves  cultivating   the  lands   and  thereafter   the mortgagee  got   them  cultivated   through  his  relatives. Assuming that  the mortgagee  really inducted tenants in the lands during  the period  of mortgage their tenure was bound to end  on the  redemption of  the mortgage according to the ordinary law  of redemption  unless they  could lay claim to protection under any other law. [797 E-H]      It is  well settled  that the  normal law  of  mortgage would apply  and tenants  inducted by the mortgagee would go out of the lands on redemption of the 792 mortgage if  in the  meanwhile the law has not been shown to intervene for  their protection. In the instant case the law expressly gave  the benefit  of section 4(2) to a proprietor like the  plaintiffs. The  tenants inducted by the mortgagee would have no statutory right to possession.[800 A-B]      Mahabir Gope  and others  v. Harbans  Narain Singh  and others [1952]  S.C.R. 775;  Narihar Prasad Singh and Another v. Mst.  of Munshi  Nath Prasad and others [1956] SCR 1; Asa Ram and another v. Mst. Ram Kali and another [1958] SCR 986; Prabhu v.  Ramdev and  others [1966]  3 S.C.R. 676, referred to.      Section 41  which  deals  with  protection  of  tenancy rights of the mortgagees cannot be invoked by the mortgagees in the case of section 4(2). [800 B-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2113 of 1972.      Appeal by  Special Leave  from the  Judgment and  Order dated 10-2-1972  of the  Madhya Pradesh High Court in Second Appeal No. 310 of 1960.      Shiv Dayal and J. S. Sinha for the Appellant.      M. C. Bhandare, Mrs. Urmila Kapoor and Shobha Dixit for the Respondent.      The Judgment of the Court was delivered by      SHINGHAL, J.  This appeal  of one of the plaintiffs, by special leave,  is directed  against  the  judgment  of  the Madhya Pradesh  High Court dated February 10, 1972, by which the suit  for possession  of the lands, which the plaintiffs had mortgaged,  has been  dismissed even  though  the  trial court’s decree  for redemption  has been  maintained. As the matter has come up to this Court for the second time, at the instance of  the plaintiffs it is not necessary to state all the facts  for they  have been  mentioned  in  this  Court’s earlier decision  is Meharbansingh and others v. Nareshsingh and others.(1) It will be sufficient to refer to those facts which bear on the present controversy.      The suit  lands belonged  to  Samle  Singh,  father  of appellant Meharban  Singh, and  Jomdar Singh  who executed a registered deed of mortgage in favour of Munshi Singh on May 20, 1939,  for Rs.  2242/14/-. It  is not disputed before us that it  was a usufructuary mortgage of land within the area

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of the former Gwalior State. The mortgagors gave a notice to the mortgagee  on May  15, 1943, for redemption of the lands but he  refused to accept. The mortgagors filed the suit for redemption on  June 15,  1943. As  some other  persons  were alleged to  be in  possession of  the suit  lands, they were also impleaded 793 as defendants.  The Madhya  Bharat Zamindari  Abolition Act, 1951 (Samvat 2008), hereinafter referred to as the Act, came into force  on October 2, 1951, and leave was granted to the plaintiffs to  amend the  plaint suitably.  The trial  court decreed the  suit on  October 10,  1958, but  disallowed the relief for  the grant  of mesne  profits. Three appeals were preferred against  that judgment  and decree  of  the  trial court. The  appellate court  dismissed the  appeals  of  the defendants. It  held that the suit lands were the khud-kasht lands of  the mortgagors,  and allowed  the  appeal  of  the plaintiffs for mesne profits from the date of the deposit of the mortgage-money.  The defendants went in second appeal to the High  Court; and the plaintiffs also preferred an appeal for refusal  of mesne  profits from the date of the cause of action. The High Court partly allowed the defendants’ appeal by its  judgment dated September 27, 1962. It relied on this Court’s decision  in Haji Sk. Subhan v. Madhorao(1) and held that the  plaintiffs were  not entitled  to  possession.  It dismissed the  appeal of plaintiff Meharbansingh. He applied to this  Court for  special leave,  and  that  led  to  this Court’s decision  in Meherbansingh’s  case (Supra) mentioned above. This  Court allowed the appeal and, after considering the relevant provisions of the Act, remitted the case to the High Court  for fresh  decision after notice to the state on the point  whether the  suit land  were  Khud-kasht  of  the plaintiffs and  they were  entitled to  remain in possession under section  4 of the Act. The State was therefore allowed to be  impleaded as a party and to file a written statement. Certain additional  issues were framed by the High Court and the case  was remitted  to the trial court for its findings. When it came to the High Court again, with those findings it once again  took the  view  that  the  plaintiffs  were  not entitled to  possession of the suit lands although they were entitled to  a decree  for redemption.  It is  against  that judgment of  the High  Court dated  February 10,  1973, that plaintiffs Meherbansingh has come up to this Court by way of the present appeal.      The facts  of this  case are thus quite simple, and its fate depends  upon the  answer to  the question  whether the plaintiffs were  entitled to  possession of  the suit  lands under sub-section (2) of section 4 of the Act.      The  Act   made  provision   for  the   abolition   and acquisition  of  the  rights  of  proprietors  in  villages, "muhals", "chaks" or blocks settled on the zamindari system. If therefore  a person was a "proprietor" within the meaning of clause  (a) of  section 2,  all  his  proprietary  rights vested in  the State  free of  all encumbrances by virtue of sub-section (1)  of section  3 of  the  Act  from  the  date specified for the 794 purpose in  the notification issued by the State Government. It is  not disputed  that the specified date for purposes of the present case was October 2, 1951.      The consequences  of the  vesting of  an  estate  under section 3  have  been  stated  in  section  4.  We  are  not concerned with  sub-section (3) of that section, and it will be sufficient to refer to clauses (a) and (f) of sub-section (1) and  sub-section (2)  of Section  4. Clause  (a) of sub-

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section (1)  of section  4 provides  that save  as otherwise provided in  the Act, the following consequences shall ensue notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force,-           "(a)  all   rights,  title  and  interest  of  the      proprietor in  such area,  including land  (cultivable,      barren or  Bir), forest, trees, fisheries, wells (other      than private  wells),  tanks,  ponds,  water  channels,      ferries, pathways,  village-sites, hats, and bazars and      mela-grounds and  in all sub-soil, including rights, if      any, in  mines and  minerals, whether  being worked  or      not, shall  cease and  be vested in the State free from      all encumbrances;"      This provision  therefore had the effect of terminating the proprietary  rights of a proprietor in his estate and in vesting them  in the  State free  from all encumbrances. The legislature  has  taken  care  to  deal  with  the  fate  of mortgages, in  clause (f)  of sub-section  (1) of section 4, which reads as follows,-           "(f) every  mortgage with  possession existing  on      the property  so vesting  or part  thereof on  the date      immediately preceding the date of vesting shall, to the      extent of  the amount  secured on such property or part      thereof be  deemed without  prejudice to  the rights of      the State  under section 3, to have been substituted by      a simple mortgage." So a  mortgage with  possession, which  existed on  the date immediately preceding  the date  of vesting of the property, was deemed  to have  been substituted  by a simple mortgage. That was  to be  so without  prejudice to  the rights of the State under  section 3. A mortgagee who was in possession of lands  under   a  deed  of  mortgage,  e.g.  a  usufructuary mortgagee, this lost possession of the lands by operation of the law,  and his mortgage became nothing more than a simple mortgage from  the date  of the  vesting of the lands in the State. In other words, he lost possession of the lands which were once  mortgaged with  him with possession, and was left only with  the normal right of a simple mortgagee to realise the mortgage money. 795      While that was the fate of the mortgagee under the Act, the fate  of the  mortgagor, who  was once the proprietor of the lands,  was even  worse, for  he  lost  his  proprietary rights in  the lands  because of  their vesting in the State under section 3 as aforesaid and had, nonetheless, to fulfil his obligation  as a  mortgagor to  the extent of the amount secured under  the mortgage. It appears that the legislature therefore thought  of alleviating  the lot  of those of such proprietors  whose  cases  fell  under  sub-section  (2)  of section 4 of the Act. The subsection reads as follows,-           "(2) Notwithstanding  anything contained  in  sub-      section (1), the proprietor shall continue to remain in      possession of  his khud-kasht  land, so recorded in the      annual village papers before the date of vesting." So only  those proprietors  were permitted  to  continue  to remain in possession of their lands who had khud-kasht lands and the  lands were  recorded as  khud-kasht in  the  annual village papers  before the  date of  vesting. The expression khud-kasht has  been defined  in clause  (c) of section 2 of the Act to means inter alia, land cultivated by the zamindar himself or  through employees or hired labourers. Clause (c) of section  2 of  the Act  states that words and expressions used in  the Act, but not defined in it, shall have the same meaning as  assigned to  them in  Qanoon Mal, Gwalior State, Samvat 1983.  The expression  "zamindar" has been defined in

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clause (13)  of section 2 of the Qanoon Mal to mean a person who has  the rights  mentioned in  it. It  is  not  disputed before us  that the  plaintiffs were  zamindars  under  that definition, and  were proprietors of their lands. It is also not disputed  before us  that if a person was a zamindar and cultivated the  land himself  or through  employees or hired labourers, that  would be  his khud-kasht cultivation within the meaning  of clause (c) of section 2 of the Act. It would follow that  if, in  a given  case,  it  was  shown  that  a proprietor had  khud-kasht land which was so recorded in the annual village  papers before  the date  of vesting  of  the lands in the State, he was entitled to continue to remain in possession of those lands. This concession to the proprietor was by  way of a rider to the rigorous provisions of section 3 of  the Act  regarding the  vesting of  his estate  in the State, and if a proprietor was able to establish that he was entitled to  its benefit,  there could  be no  reason why it should not  be allowed  to him. It may be that the provision for the  vesting of  the estate in the State under section 3 and, in  particular, that relating to the loss of possession of the  mortgagee under  clause (f)  of section  4, operated harshly on  a mortgagee  with  possession,  and  he  had  to content himself with the other provisions in the Act for the satisfaction of the debt owed to him by the 796 proprietor, but  the law  allowed him nothing more after the date of  the vesting  of the estate in the State. The lot of the mortgagor-proprietor  was in  fact far  worse, for while the Act  divested him  of the  proprietary interest  in  the lands held  by him  and vested those rights in the State, it held him liable as if his mortgage was a simple mortgage and left him  only with  the remedy  of  claiming  compensation, which was  itself  overridden  with  his  liability  to  his creditors. In  the plight in which he was placed by the land reforms legislation which was the subject-matter of the Act, it was  quite reasonable  for the  legislature to allow him, notwithstanding anything  contained in  sub-section  (1)  of section 4  which enumerates  consequences of  the vesting of the estate in the State, the benefit of what sub-section (2) of that  section provided,  and that  also on his satisfying the rigorous conditions of the sub-section mentioned above.      Reference in  this  connection  may  also  be  made  to section 37  of the  Act, sub-section  (1) of  which provides that every  proprietor who  is divested  of his  proprietary rights shall  be "a  pacca tenant  of the khud-kasht land in his possession  and the land revenue payable by him shall be determined at  the rates fixed by the current settlement for the same  kind of  land." In  fact, when this Court examined the matter  on the  earlier occasion,  it took notice of the above provisions of the Act and observed as follows,-           "The  proprietor  however,  notwithstanding  other      consequences of  the vesting in a State, is entitled to      continue to remain in possession of his khud-kasht land      which is  so recorded  in  the  annual  village  papers      before the  date of vesting. Now it was clearly open to      the plaintiffs  to show  that the  land in question was      khud-kasht and, therefore, in accordance with s. 4 they      were entitled to remain in possession thereof." In other  words, this  Court took  the view  that while  the mortgagors (appellants)  fulfilled the other requirements of the law,  their claim  to possession of the khud-kasht lands under sub-section  (2) of  section 4  of the  Act had  to be decided on  the basis  of the facts, and it was open to them to show  that  the  lands  were  khud-kasht  and  they  were entitled to remain in possession in terms of sub-section (2)

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of section 4. That was the purpose why the case was remanded to the  High Court and an opportunity was given to the State to appear  and contest  the claim  of the plaintiffs on that basis.      As has  been stated,  the case  went back  to the  High Court which  in its  turn, impleaded the State as a party to the suit,  permitted it  to file  a written statement, added certain issues and sent the case to 797 the trial court for submitting its findings after giving the parties an  opportunity to adduce further evidence. And when it went  back to  the High  Court with  the findings  of the trial court,  the  High  Court  stated  as  follows  in  its judgment under appeal,-           "After  impleading  the  State  as  a  party,  the      following issue,  inter alia  was remitted to the lower      court for  recording a  finding after  giving both  the      parties an opportunity to adduce evidence:           "Whether the  land in  suit was  recorded as khud-      kasht immediately before the date of vesting."           The parties  filed certain  documents but  did not      adduce any  oral evidence on the point. The trial court      has answered  the issue  in the affirmative. It was not      disputed before  me that the land was recorded as Khud-      kasht in  the names  of the  plaintiffs at  the time of      vesting,.... " There can  be no  doubt, therefore,  that  the  trial  court recorded the  finding, on  the basis  of the evidence before it, that  the suit  lands were  recorded as  the  khud-kasht lands of  the plaintiffs  before the  date of the vesting of the estate. That was in fact not disputed in the High Court.      All that  the High  Court had  then to do was to decide whether the  appellant was  entitled to  the benefit of sub- section (2)  of section 4 of the Act, for that was the clear direction of  this Court  in the earlier judgment. It is not disputed before  us that the plaintiffs were the proprietors of the  suit lands,  and it  cannot be disputed that as they mortgaged them  with possession with defendant Munshi Singh, they were  themselves in  possession upto  the date  of  the mortgage, and  as it has been found as a fact that the lands were recorded  as khud-kasht  lands of the mortgagors in the annual village  papers before the date of vesting, they were clearly entitled to a decree for possession in terms of sub- section (2)  of section  4 and there was no occasion for the High Court  to examine  the consequence  of their losing the possession of  the lands  after the  mortgage. It  has to be appreciated that  possession is always lost by the mortgagor in the  case of  a mortgage with possession. But when clause (f) of  sub-section (1)  of section 4 gave the mortgagor the benefit of  sub-section (2)  of that  section to  claim  the right to  remain in  possession of his khud-kasht land which was in  his possession  upto the  date of  mortgage, if  the strict requirement  of sub-section  (2) was  shown to exist, there could  be no  reason why  it should  be denied  to the plaintiffs.      It may  be mentioned  in this  connection that when the case came  up in  first appeal  before the Second Additional District Judge of Bhind, 798 he examined  the statements  of Himachal  Singh  DW  1,  Ram Krishan DW  2 and  Hanumant Singh DW 3. Himachal Singh was a cousin of  mortgagee Munshi  Singh, Ram  Krishan DW  2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statements, the court of first  appeal reached  the conclusion that the mortgagors

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were themselves  cultivating the  land  and  thereafter  the mortgagee got  it cultivated through his relatives. But even if it  were  assumed  that  the  mortgagee  really  inducted tenants in  the lands  during the  period of  the  mortgage, their tenure  was bound  to end  on the  redemption  of  the mortgage according to the ordinary law of redemption unless, of course,  they could  lay claim  to protection  under  any other law.  Reference in  this connection may be made to the decision of this Court in Mahabir Gope and others v. Harbans Narain Singh  and others(1) where the law has been laid down as follows,-           "The general  rule is  that  a  person  cannot  by      transfer or  otherwise confer a better title on another      than he  himself has.  A mortgagee  cannot,  therefore,      create an interest in the mortgaged property which will      inure  beyond   the  termination  of  his  interest  as      mortgagee. Further, the mortgagee, who takes possession      of the  mortgaged property,  must manage it as a person      of ordinary  prudence would  manage it  if it  were his      own;  and   he  must   not  commit  any  act  which  is      destructive or  permanently injurious  to the property;      see section  76, sub-clauses  (a) & (e) of the Transfer      of Property  Act. It  follows that  he may grant leases      not extending  beyond the  period of  the mortgage; any      leases  granted   by  him   must  come  to  an  end  at      redemption." Care was  taken to state further in that case that if during the permissible settlement by a mortgagee in possession with a tenant  in the  course of  prudent management,  any  right sprang up in the tenant by conferral or creation by statute, that would  be a  "different matter  altogether",  for  that would then be an "exception to the general rule."      The decision in Mahabir Gope’s case (Supra) was applied or was  followed in Harihar Prasad Singh and another v. Mst. of Munshi  Nath Prasad  and others(2)  where it  was held as follows,-           "As the  mortgagees are  neither  proprietors  nor      tenure holders  as defined  in  the  Act,  the  tenants      holding under 799      them could  not claim  to  be  raiyats  as  defined  in      sections 5(2)  and 5(3),  and no occupancy rights could      therefore be  acquired by  them under section 21 of the      Act." That decision  was again  followed in Asa Ram and another v. Mst. Ram Kali and another(1) also, and was held as follows,-           "But where  there is no such prohibition, the only      consequence is  that the parties will be thrown back on      their rights  under the  Transfer of  Property Act, and      the lessees  must still  establish that  the  lease  is      blinding on the mortgagors under s.76(a) of that Act." Reference may also be made to Prabhu v. Ramdev and others(2) where again  reference was  made to  the decision in Mahabir Gope (supra)  and  the  legal  position  was  reiterated  as follows,-           "Having made  these  observations,  however,  this      Court has  taken the  precaution to point out that even      in regard  to tenants  inducted  into  the  land  by  a      mortgagee cases  may arise  where the  said tenants may      acquire  rights  of  special  character  by  virtue  of      statutory provisions  which may, in the meanwhile, come      into operation. A permissible settlement by a mortgagee      in possession  with a  tenant in  the course of prudent      management and the springing up of rights in the tenant      conferred or  created by statute based on the nature of

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    the land  and possession  for the  requisite period, it      was observed, was a different matter altogether. Such a      case is  clearly  an  exception  to  the  general  rule      prescribed by  the Transfer  of Property  Act. It  will      thus  be  seen  that  while  dealing  with  the  normal      position under the Transfer of Property Act, this Court      specifically pointed out that the rights of the tenants      inducted by  the mortgagee  may conceivably be improved      by virtue  of statutory  provisions which may meanwhile      come  into   operation.  That  is  precisely  what  has      happened in the present case. During the continuance of      the mortgage  s. 15  of the Act came into operation and      that made the respondents Khatadars who are entitled to      claim the benefit of s. 161 of the Act." It is therefore well settled that the normal law of mortgage would apply  and tenants  inducted by the mortgagee would go out of  the lands  on redemption of the mortgage, if, in the meanwhile, law has 800 not been shown to intervene for their protection. As, in the instant case,  the law  expressly gave  the benefit  of sub- section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of  possession. A  vain attempt  was  made  to  invoke section 41  of the  Act for  the protection  of the  tenancy rights of  the mortgagees,  but their  learned  Counsel  was unable to  show how  they could  claim the  benefit of  that section in face of the clear provision of sub-section (2) of section 4 of the Act. In fact all that Mr. Bhandare was able to contend  on behalf of the respondents was that their case was covered  by this  Court’s decision  in Haji Sk. Subhan’s case (supra).  That decision formed the basis of the earlier decision of  the High  Court dated  September 27,  1962, but this Court  clearly pointed out in its earlier decision that the High  Court was  "in error in allowing the appeal before it and  in dismissing  the  plaintiff-appellants’  suit  for possession on  the authority of this Court’s decision in the case of  Haji Sk.  Subhan"  (supra).  It  is  therefore  not necessary for  us to  say, once  again,  why  that  decision cannot govern the present dispute.      In the  result, we  allow the  appeal and  restore  the decree of the court of first appeal with costs. P.B.R.                                       Appeal allowed. 801