ivil Appeal No 143 of 1951
Appeal by special leave from the judgment and decree dated 23rd March 1950 of the High Court of Judicature at Patna Reuben and Jamuar JJ in appeal from Original Decree No 206 of 1946 arising out of a decree dated 31st January 1946 of the Subordinate Judge at Patna in Title Suit No 554 of 1943 45
Saiyid Murtaza Fazl Ali for the appellants
NC Chatterjee A N Sinha with himfor the respond ents Nos 1 to 9
BK Saran for the respondents Nos
11 to 16
April 14
The Judgment of the Court was deliv ered by CHANDRASEKHARA AIYAR J
This is an appeal by the defendants from a decree of the Patna High Court reversing a decree of the Subordinate Judge s Court at Patna and de creeing the plaintiffs  suit for possession against the defendant first party who may be called for the sake of convenience as the Gopes 
The lands were khudkhasht lands partly belonging to the plaintiffs first party and partly belonging to Mussammat Anaro Kuer from whom the plaintiffs second and third par ties trace title
The ancestors of plaintiffs first party gave on 28 9 1899 an ijara with possession to one Lakhandeo Singh an ancestor of the defendant second party under Exhib it I b for a term 777 of six years from 1307 Fasli to 1312 Fasli for Rs 540
The poshgi money was to be repaid in one lump sum at the end of Fasli 1312
If there was no redemption then the ijara was to continue in force till the money was repaid
Mussammat Anaro Kuer gave her share in ijara to the same Lakhandeo Singh orally on 10th June 1905 for a period of three years for Rs 542
Lakhandeo Singh who is represented now by the defendant second party made a settlement of the land thus got by him 826 acres or 13 bighas in all with one Ram Lal Gope an ancestor of the defendant first party for a period of three years from Fasli 1315 to Fasli 1318
There was a patta in favour of the tenant and a kabuliyat in favour of the landlord
This was in 1908
The mortgage was redeemed in June 1942 by payment in proceedings under section 83 of the Transfer of Property Act When the plaintiffs went to take possession they were resisted by the Gopes defendant first party and after unsuccessful criminal proceedings the plaintiffs filed the present suit
The Subordinate Judge dismissed it holding that the Gopes were raiyats having acquired permanent occupancy rights in the lands as the result of the settlement by the mortgagee Lakhandeo Singh
On appeal the High Court set aside this decision and gave the plaintiffs a decree for possession on the finding that the defendants were not raiyats and had no permanent rights of occupancy
This court granted to the defendants special leave to appeal
The suit was in the alternative for recovery of the value of the lands as compensation or damages from the defendant second party in case it was found that the defendant first party could not be ejected
The trial court decreed this alternative claim and awarded to the plaintiffs compensation at the rate of Rs 200 per bigha
The defendant second party carried the matter in appeal to the High Court and succeeded
But we have nothing to do with this matter in the present appeal
At the trial the plaintiffs alleged and maintained that the lands were their zirat lands within the meaning SUPREME 778 of section 116 of the Bihar Tenancy Act and that the defend ant first party could acquire no rights of occupancy in the same
The Subordinate Judge found against this contention and held that they were khud kasht or bakasht lands of the proprietor in which rights of occupancy can be acquired He negatived the plea of the defendants that they were their ancestral raiyati lands
He also held that there was no collusion between the mortgagee Lakhandeo Singh and Ram Lal Gope in the matter of settlement of lands
It is on the basis of these findings which were accepted by both the parties that the hearing of the appeal proceeded before the High Court
It was held by the Privy Council in Bengal Indigo Company vs Roghobur Das1 that a zuripeshgi lease is not a mere contract for the cultivation of the land at a rent but is a security to the tenant for the money advanced
They observed speaking of the leases before them that the leases in question were not mere contracts for the cultiva tion of the land let but that they were also intended to constitute and did constitute a real and valid security to the tenant for the principal sums which he had advanced and interest thereon
The tenants  possession under them was in part at least not that of cultivators only but that of creditors operating repayment of the debt due to them by means of their security
 These words apply to the ijara deed before us its dominant intention was to provide a security for the loan advanced and not to bring into existence any relationship of landlord and ten ant
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 enure beyond the termina tion 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 de structive 1 779 or permanently injurious to the property see section 76 sub clauses a  eof 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
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 land thereby defeating the mortgagor s right to khas possession it would be an act which would fall within the provisions of section 76 subclause e of the Transfer of Property Act
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 the land and possession for the requisite period is a different matter altogether
It is an exception to the general rule
The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage
He may become an occupancy raiyat in some cases and a non occupancy raiyat in other cases
But the settle ment of the tenant by the mortgagee must have been a bona fide one
This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication
Where all the zamindari rights are given to the mortga gee it may be possible to infer on the proper construction of the document that he can settle lands with tenants in the ordinary course of management and the tenants might acquire certain rights in the land in their capacity as tenants
In the case of Manjhil Lal Biswa Nath Shah Deo vs Shaikh Mo hiuddin1 there was a bona fide settlement of mortgaged rayati land by the mortgagee with tenants and it was held that the mortgagor was not entitled to evict them after redemption
The earlier decision of Babu Bhairo Nath Ray vs Shanke Pahan2 related to bakasht lands and 1 2 Pat31
780 there was no provision in the zuripeshgi lease restricting the power of the mortgagee lessee as regards settlement of tenants
Khudkasht lands and bakasht lands are really in the nature of raiyati lands which come into the possession of the proprietor by surrender abandonment or purchase
In the present case
we have the following clause in the ijara deed It is desired that the ijaradar should enter into possession and occupation of the share let out in ijara being the khudkasht land under his own cultivation culti vate them pay 2 annas as reserved rent year after year to us the executants and appropriate the produce thereof year after year on account of his having the ijaradari interest
 This term disentitles the mortgagee from locating tenants on the land mortgaged
Ram Lal Gope the grandfather of the defendants first party who executed the kabuliat in 1908 must have known of the title of Lakhandeo Singh the mortga gee and the terms under which he held the lands under the registered zuripeshgi ijara deed and this is most probably why the tenant not only took the lease for a period of 3 years but expressly undertook to give up possession over the thika lands on the expiry of the period of lease without urging any claim on the score that the lands were his old kasht lands
His kabuliat Exhibit 11 in fact refers to Lakhandeo Singh s ijaradari interest
In view of these facts the learned Judges of the High Court stated that they were not prepared to hold that the settlement was a bona fide one or the mortgagee was within his rights in settling these lands
Strong reliance was placed for the appellants on the Full Bench decision Binad Lal Pakrashi and Others vs Kalu Pramanik and Others 1 where it was held that a person inducted into possession of land as a raiyat even by a trespasser became a non occupancy raiyat within the meaning of section 5 sub section 2 of the Bengal Tenancy Act and was protected from ejectment
But this decision has been subsequently 1 Cal
781 explained away in several cases as based on the proposition that the rights must have been bona fide acquired by them from one whom they bona fide believed to  have the right to let them into possession of the land
Such however is not the case here in view of the recitals in the ijara deed in favour of Lakhandeo Singh and the kabuliat by Ram Lal Gope
Sections 20 and 21 of the Bihar Tenancy Act were re ferred to by the learned counsel for the appellants in the course of his arguments and he pointed out that the land in this case was held  continuously by his clients and their predecessors from 1908 to 1942 when they were sought to be ejected
For these sections to apply we must be in a position to hold that the appellants were settled raiy ats
Raiyals is defined in sub clause 2 of section 5 as meaning primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family   Sub clause 3 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
Lakhandeo Singh was not a proprie tor by which term is meant a person owning whether in trust or for his own benefit an estate or part of an es tate he was only a mortgagee
Nor was he a tenure holder or under tenureholder as he does not comply with the defi nition given in sub clause 1 of section 5 namely a person who had acquired from a proprietor or from another tenure holder a right to hold land for the purpose of col lecting rents or for the purpose of bringing the land under cultivation by establishing tenants on it
Such proof as there is in this case only goes to show that the lands were under the cultivation of the plaintiffs and that they were made over to the possession of the mortgagee so that he might cultivate them himself
Hence Ram Lal Gope could not claim that he was a settled raiyat of the village and that under the statute he secured occupancy rights in the lands Which he took on lease from Lakhandeo Singh
782 Lastly it was urged that the ijara by Mst
Anaro Kuer was admittedly an oral transaction and there was no proof of any prohibition against the settlement with tenants so far as her share 397 acres was concerned and that the rights of the parties as regards this area would stand on a differ ent footing from the rights in respect of the 4 acres and 29 cents belonging to the plaintiff first party
This point was not taken in the courts below where the two ijaras given to Lakhandeo Singh were dealt with as if they were part and parcel of one and the same transaction the rights and liabilities whatever they were being common to both
We cannot allow the point to be taken now
The result is that the High Court s decree is con firmed and the appeal is dismissed with costs of the plain tiffs respondents
There will be no order as to costs of the other respondents
Appeal dismissed
Agent for the respondents Nos
1 to 9 MM Sinha
Agent for the respondents Nos 11 to 16 KL Mehta


Summary:
A complaint was filed against the appellant and one Bose before the Sub Divisional Magistrate Darjeeling
Under the WB Criminal Law Amendment Special Courts Act 1949 the case was allotted to Mr Dutta Gupta Special judge Alipur who by order dated July 11 1951 acquitted the appellant but convicted Bose
Bose appealed to the High Court which held the Act to be ultra vires and quashed the conviction
The Act was amended and another complaint was then filed against the appellant and Bose before Mr Lodh Special judge Alipur
The appellant pleaded the bar of section 403 Code of Criminal Procedure on account of his acquittal by Mr Dutta Gupta but the Special judge overruled the plea
The appellant went to the High Court in revision and on March 19 1953 Chunder J held that the acquittal was not by a competent Court as the Act creating the court had been declared ultra vires and dismissed the application
In the meantime the case was withdrawn from Mr Lodh and was allotted to the Special judge Darjeeling and a fresh complaint was filed against both accused
On an application made by Bose the High Court quashed these proceedings and directed the proceedings pending in the Court of the Sub Divisional Magistrate Darjeeling to be disposed of in accordance with law
By this time the Supreme Court had held in Kedar Nath Bajoria vs The State of West Bengal that the Act was intra vires
The appellant again raised the plea of the bar of section 403 Code of Criminal Procedure contending that in view of the decision of the Supreme Court his acquittal was by a competent Court
The plea was rejected by the Magistrates and a revision application was dismissed by the High Court on the ground that the appellant was bound by the decision of Chunder J holding that the acquittal was by a Court not of competent jurisdiction
The appellant appealed by special leave
Held Sarkar J dissenting that in view of the decision of the Supreme Court in Kedar Nath Bajoria s case the trial before Mr Dutta Gupta Special judge was a lawful one and the acquittal of the appellant which was never set aside was a bar to another trial
It was open to the appellant to challenge in this appeal the order made by Chunder J on March 19 1953
Except 59 where the statute so required it was not imperative upon a party to appeal against every error defect or irregularity in any order by which he may be aggrieved and by not doing so he did not forfeit his right to have the matter considered by the Supreme Court
So far as the Supreme Court was concerned it made no difference whether the intermediate order complained of was passed by the Trial Court and was not taken to the High Court or it was taken to the High Court and was confirmed by it
Kedar Nath Bajoria vs The State of West Bengal   followed
Maharaja Moheshur Singh vs The Bengal Government 1859 7 MIA 283 Alexander John Forbes vs Ameeroonissa Begum 1865 10 MIA 340 Sheonath vs Ram Nath 1865 10 MIA 413 and Shah Mukhun Lal vs Baboo Sree Kishen Singh 1868 12 MIA 157 referred to
Sambasivam vs Public Prosecutor Federation of Malaya and Pritam Singh vs The State of Punjab AIR 1956 SC 415 applied
Sarkar J
The judgment of Chunder J prevented the appel lant from raising the question that the Court of Mr Dutta Gupta was a court of competent jurisdiction
That decision was a final judgment and it did not lose its force as such because a Superior Court in a different case subsequently took a view which showed that the judgment was wrong
That decision was not an interlocutory order as it decided that the appellant had no right not to be prosecuted again
The principle of finality of judgment obtained in criminal law as well as it did in civil law
In re May  Sambasivam vs Public Prosecutor Federation of Malaya and Ram Kirpal Shukul vs Mussumat Rup Kuari 1883 LR 11 IA 37 referred to