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PETITIONER: PRABHU

       Vs.

RESPONDENT: RAMDEV & ORS.

DATE OF JUDGMENT: 28/02/1966

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR 1721            1966 SCR  (3) 676  CITATOR INFO :  RF         1976 SC1830  (18,20)  R          1980 SC 696  (11)  RF         1981 SC1881  (17)  RF         1987 SC2146  (8,11,14)  RF         1989 SC 436  (39,42,43)

ACT: Transfer  of  Property  Act (4 of  1882),  s.  76(e)-Tenants inducted by mortgagee When can continue in possession  after termination of mortgage.

HEADNOTE: The  appellant’s father created a usufructuary  mortgage  of the   land  in  dispute  and  the  mortgagee  admitted   the respondents  as  tenants.   During the  continuance  of  the mortgage  and  while the respondents were in  possession  as tenants,  the Rajasthan Tenancy Act, 1955, came into  force. The  mortgage  was eventually redeemed but  the  respondents continued  in possession.  The appellant therefore sued  for possession  of the land before the revenue  authorities  and the  Board of Revenue in appeal, held that by virtue of  the provisions  of  s.  15 of the Act,  the  possession  of  the respondents was unassailable, that they could be ejected, in view  of s. 161, only in accordance with the  provisions  of the  Act,  but that, none of the grounds  available  to  the appellant  had  been proved.  The High Court  dismissed  the writ  petition  of  the appellant  challenging  the  Board’s decision. In  appeal  to  this  Court, on  the  question  whether  the respondents could be ejected on the ground that the mortgage had been redeemed, Act, a mortgagee cannot create an interest in the  mortgaged property  which  will enure beyond the  termination  of  his interest  as  mortgagee.   But the  rights  of  the  tenants inducted  by  the  mortgagee may be improved  by  virtue  of statutory  provisions  which may meanwhile  come  into  ope- ration,  and  that was precisely what had  happened  in  the present case.  During the continuance of the mortgage, s. 15 of  Rajasthan Tenancy Act came into operation and that  made

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the  respondents  Khatedars who are entitled  to  claim  the benefit of s. 161 of that Act. [680 A-D] Mahabir  Gope v. Harbans Narain Singh, [1952]1  S.C.R.  775, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 323 of 1963. Appeal  by special leave from the judgment and  order  dated October 20, 1961 of the Rajasthan High Court in D. B.  Civil Writ No. 41 of 1959. B.   C. Misra and M. V. Goswami, for the appellant. S.   C. Agarwal, for respondent No. 1. R.   N. Sachthey, for respondents Nos. 4 and 5. The judgment of the Court was delivered by Gajendragadkar,  C. J. The appellant Prabhu is the owner  of agricultural  land bearing Khasra Nos. 224, 215,  244,  299, 320, 506, 677 617  and  687 situated in village Nilakpur,  Tehsil  Behror, District Alwar, in the State of Rajasthan.  The  appellant’s father Jora had executed a usufructuary mortgage of the said land in about 1936 for a period of twenty years in favour of one Ganga Din.  After the expiry of the period prescribed by the  said  mortgage,  the appellant obtained  a  decree  for redemption on July 16, 1956.  This decree declared that  the mortgage  and all encumbrances created by the  mortgagee  or any person claiming under him were extinguished and directed the  mortgagee  to  deliver  possession  of  the   mortgaged property to the appellant. It appears that during the continuance of the mortgage,  the mortgagee  Ganga  Din  had let out  the  aforesaid  land  to respondents I to 3 Ramdey, Yadram and Nathu respectively. Meanwhile,  on  October 15,1955 the Rajasthan  Tenancy  Act, 1955 (No. 3 of 1955) (hereinafter called ’the Act’) had come into force.  On July 28, 1956, the appellant instituted  the present suit for possession of the land in question  against the  three  respondents.  This suit was tried  by  the  Sub- Divisional Officer, Behror.  In this suit the appellant  had alleged that after the redemption decree had been passed  in favour  of  the  appellant,  the  respondents  had  in  fact delivered possession of the property to the appellant, but a few  days thereafter they had trespassed into  the  property and  obtained  its  possession wrongfully.   This  plea  was resisted by the respondents on the ground that they had  not surrendered  possession of the property to the appellant  as alleged by him and that under the relevant provisions of the Act  they  were  entitled to remain in  possession  of  this property.   On  these pleadings the  learned  Sub-Divisional Officer framed two issues.  They were: No. 1. Whether the respondents are trespassers in respect of the fields and are liable for ejectment; and No. 2. to what relief, if any, the appellant is entitled  to ? He  found  that  the ,respondents were  not  trespassers  as alleged  by the appellant and as such the appellant was  not entitled to any relief.  In the result, the appellant’s suit was dismissed. Against  this  decision the appellant  preferred  an  appeal before  the Additional Commissioner, Ajmer.   The  appellate authority  reversed the finding of the trial court and  held that  the appellant was entitled to eject  the  respondents. The respondents challenged the correctness of this order  by preferring  a second appeal before the Board of Revenue  for

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Rajasthan,   Ajmer.    Their   appeal   succeeded   and   in consequence, the order passed by the appellate authority was set  aside and that passed by the trial judge was  restored. The Board has held that by virtue of the provisions of s. 15 of   the  Act,  the  possession  of  the   respondents   was unassailable and they could 678 be  ejected only in accordance with the relevant section  of the  said Act.  Since none of the grounds available  to  the appellant under the Act had been proved, he was not entitled to a claim for ejectment. The  validity of the Board’s decision was challenged by  the appellant  by  moving the Rajasthan High Court in  its  writ jurisdiction  under  Art. 226 of the Constitution.   It  was urged by the appellant before the High Court that the  order passed by the Board was plainly erroneous in law and as such should be set aside.  This petition, however, failed and was dismissed  by the High Court.  It is against  this  decision that the appellant has come to this Court by special leave. The  relevant facts, in the fight of which the  question  of law raised before us by Mr. Misra on behalf of the appellant has  to  be  considered,  are no  longer  in  dispute.   The appellant’s  father created a usufructuary mortgage  of  the land  and  during the continuance of the said  mortgage  the respondents  were  admitted as tenants.   The  mortgage  was eventually  redeemed and in spite of the  redemption  decree the  respondents  continued in possession of the  land.   On these  facts the question which arises for our decision  is: whether  the  respondents, who have been inducted  into  the land  as  tenants  by the  usufructuary  mortgagee,  can  be ejected by the appellant on the ground that the mortgage  in question  has  been redeemed.  The answer to  this  question depends upon the effect of s. 15 of the Act. Before  dealing  with the specific provisions  of  the  said section we may refer to two definitions which are  relevant. "Tenant" has been defined by s. 5(43) of the Act as  meaning a  person by whom rent is or but for a contract, express  or implied,  would  be  payable and except  when  the  contrary intention  appears,  shall include a cotenant  or  a  grove- holder  or a village servant or a tenant of khudkasht  or  a mortgagee of tenancy rights but shall not include a  grantee at  a favourable rate of rent or an ijaredar or a the  kadar or  a trespasser.  That is how the definition stood  at  the relevant  time.  The test prescribed by this  definition  is that the person can claim to be a tenant if it is shown that rent is payable by him in respect of the land.  That test is clearly  satisfied by the three respondents in  the  present case. The  next  definition to which it is necessary to  refer  is that  of a trespasser.  The appellant, in his present  suit, has  contended  that  the respondents  are  trespassers.   A "trespasser"  has  been defined by S. 5(44) of  the  Act  as meaning  a  person  who  takes  or  retains  possession   of unoccupied  land without authority or who  prevents  another person from occupying land duly let out to him.  That is how the definition read at the material time.  It is plain  that the  respondents  do  not  fall  within  the  definition  of "trespasser" as prescribed by this clause. 679 Let us now refer to s. 15 as it stood at the relevant  time. Section  15  provides,  inter  alia,  that  subject  to  the provisions of s.16 every person who, at the commencement  of this  Act,  is  a  tenant of land,  shall,  subject  to  the provisions  of this Act and subject further to any  contract not contrary to s. 4 be entitled to all the right  conferred

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and  be subject to all the liabilities imposed  on  Khatedar tenants  under the Act.  In other words, as soon as  s.  1.5 came  into operation on October 15, 1955, the possession  of the respondents, who had been inducted into the land by  the mortgagee   was  substantially  altered  and   they   became Khatedars  by virtue of the statutory provisions  prescribed by  s. 1 5. Section 161 of the Act provides that  no  tenant shall  be  ejected  from  his  holding  otherwise  than   in accordance  with the provisions of this Act.   The  position thus  is clear that as soon as the Act came into  force  the respondents  were  entitled to the benefits of s.  1  5  and cannot be ejected except under the provisions of’ the Act in view of s. 161.  It is because of these provisions that  the appellant  was driven to make the plea that the  respondents were   trespassers   inasmuch  as   they   had   voluntarily surrendered  possession  of  the  land  to  him  after   the redemption decree was passed and had wrongfully entered into possession  thereafter.  That plea has not been  proved  and the  matter  falls  to be considered  squarely  within,  the provisions of ss.15 and 161 of the Act.  It is true that  s. 183.  of the Act provides for the ejectment of a  trespasser but that section has no application to this case inasmuch as the respondents cannot be held to be trespassers at all. Mr. Misra, however, contends that there are two decisions of this Court which support his case that tenants introduced by the  mort-gagee during the continuance of the  mortgage  can have no claim to remain in possession of the land after  the mortgage  itself  has been redeemed and he argues  that  the said  principle  would  justify the  appellant’s  claim  for ejecting  the  respondents in the present case.  In  Mahabir Gope and Others v. Harbans Narain Singh and Others(1),  this Court  has held that as a general rule a person  cannot,  by transfer or otherwise, confer a better title on another than he  himself had.  A mortgagee cannot, therefore,  create  an interest  in the mortgaged property which will enure  beyond the   termination   of  his  interest  as   mortgagee.    In consequence  any lease granted by a morgagee  in  possession must  come  to an end at redemption.  A  mortgagee,  cannot, during  the  subsistence of the mortgage, act  in  a  manner detrimental to the mortgagor’s interests such as by giving a lease  which may enable the tenant to acquire  permanent  or occupancy  rights  in  the  fields  thereby  defeating   the mortgagor’s right to khas possession; such an act would fall within  the  provisions  of  s. 76,  subclause  (e)  of  the Transfer of Property Act.  It is on these observations  that Mr. Misra founds his argument. (1)  11952] S.C.R. 775: A.I.R. 1952 S.C. 205. 680 It  must be remembered that these observations were made  by reference  to the normal relationship between the  mortgagor and   the   mortgagee  and  their  respective   rights   and obligations  as  determined by relevant  provisions  of  the Transfer  of Property Act.  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 co erred or readed  by  statute based  on  the  nature of the land and  possession  for  the requisite  period, its observed, was a different matter  al- together.   Such  a  case is clearly  an  exception  to  the general rule prescribed by the Transfer of Property Act.  It

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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 Khatedars who are entitled to claim the benefit of s. 161 of the Act. The  other  decision on which Mr. Misra  relies  is  Harihar Prasad  Singh  &Another  v. Must. of Munshi  Nath  Prasad  & Others.  (1)  In  that case it was  held  that  the  persons inducted  by mortgagees could be raiyats within the  meaning of  s.  5(3) of the Bihar Tenancy Act so as to  acquire  any rights  of  occupancy  under S. 21 of the  said  Act.   This conclusion,  however,  flows from the basic  fact  that  the mortgagees  who  inducted  the tenants into  the  land  were neither  proprietors  nor tenure holders as defined  by  the said  Act.   Section 5(3) of the said Act  provides  that  a person  shall not be deemed to be a raiyat unless  he  holds land  either immediately under a proprietor  or  immediately under  a  tenure-holder; and so, when  tenants  claimed  the status  of  a raiyat, in that case it  became  necessary  to consider  whether they held the land under a  proprietor  or under  a  tenureholder,  and since it  was  clear  that  the mortgagees were neither proprietors nor tenure-holders,  the tenants  inducted by them could not claim the benefit of  S. 5(3).   It  would  thus be seen  that  this  decision  turns inevitably upon the relevant provisions of the Bihar Act and the said provisions show that no statutory benefit had  been conferred on the tenants as claimed by them under S. 5(3) of the said Act.  This decision therefore does not lay down any general proposition on which Mr. Misra can possibly rely. (1) [1956] S.C.,R. 1 681 In the result, the view taken by the Board about the  status of  the  respondents  is  right  and  the  High  Court  was, therefore,  justified  in dismissing  the  appellant’s  writ petition filed before it.  The appeal therefore fails and is dismissed with costs.  Costs in favour of respondent No. 1. Appeal dismissed. 682