RSA No. 2250 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 2250 of 2008 Date of decision: April 26,2011 Smt.Hoshiari Devi and another ......Appellants Versus Dharambir and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sanjay Mittal,Advocate for the appellants Mr.C.B.Goel,Advocate and Mr.Ankur Jain, Advocate for the respondents. **** SABINA, J. Plaintiff-Dharambir had filed a suit for declaration to the effect that he was a gair marusi tenant over the land in dispute measuring 29 kanals 6 marlas situated in village Kahadi from khariff 1979 onwards and the rate of rent was ` 1200/- per year. The land in question had been mortgaged with predecessors-in-interest of defendants No. 7 to 28 by Badlu, predecessors-in-interest of defendants No. 1 to 6. The defendants in collusion with each other got the suit land redeemed on 19.4.1995. Defendants no. 1 t 6 tried to take forcible possession of the suit land and the plaintiff filed a suit for permanent injunction which was decreed on 13.2.1999. The appeal filed against the said judgment and decree was dismissed by RSA No. 2250 of 2008 2 the First Appellate Court. In column No. 9 of the jamabandi, rent has been described as Batai Tihai Mai chara bila wajah sahakan kheti beej ba zimme mujara, maal ba zimme malik instead of ` 1200/- per year. Defendants No. 1 to 6, in their written statement, averred that there was no relationship of landlord and tenant between the parties. In fact, the plaintiff was in an unauthorized possession of the suit land. Prior to the year 1979, mortgagees were in possession of the suit land. The plaintiff was inducted as a tenant by the mortgagee without any permission/consent of the mortgagor. Hence, the mortgagor was not bound by the tenancy created by the mortgagee. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff is a tenant over the suit property at the rate of Rs.1200/- per year since crops kharif,1989?OPP 2.Whether the entry regarding rent in revenue record is illegal, null and void and not binding on the plaintiff?OPP 3.Whether the civil Court has no jurisdiction to try the present suit?OPD 4.Whether the suit of the plaintiff is not maintainable in the present form?OPD 5.Relief” The Additional Civil Judge (Senior Division) vide judgment and decree dated 16.12.2005 dismissed the suit of the plaintiff . Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed by the Additional District Judge RSA No. 2250 of 2008 3 vide judgment and decree dated 18.1.2008 and the suit of the plaintiff was decreed as prayed for. Hence, the present appeal by defendants no. 1 and 2. After hearing the learned counsel for the parties,I am of the opinion that the present appeal deserves dismissal. Admittedly, the suit land was mortgaged with the predecessors-in-interest of defendants No. 7 to 28 by predecessors -in-interest of defendants No. 1 to 6. Plaintiff has been inducted as a tenant by the mortgagee. The question that requires consideration is as to whether after the redemption of the suit land by the appellants, the plaintiff can continue to be in possession of the suit property and claim the relief of correction of entries in the jamabandi qua rate of rent. It has been held by the Full Bench in Jagan Nath Piare Lal vs. Mittar Sain and others AIR 1970 Punjab and Haryana 104 (V.57 C16)(1) which reads as under:- “After giving the matter my careful consideration, I have come to the conclusion that: (1) A tenant of a mortgagor, after the mortgage, necessarily attorns to the mortgagee and thereby becomes a tenant of the mortgagee,unless his tenancy has been put an end to by the mortgagor at the time of effecting the mortgage. On the redemption of the mortgage, he again is relegated to his position of a tenant of the mortgagor; (2) The mere execution of a rent-note by the tenant of the mortgagor in favour of the mortgagee, after the mortgage has been effected, does not create a fresh tenancy in favour RSA No. 2250 of 2008 4 of the mortgagee. But there is nothing to prevent the tenant to surrender his earlier tenancy and enter into a fresh contract of tenancy with the mortgagee; and in each case, it will have to be determined on evidence, wheteher a tenant of the mortgagor did surrender his tenancy and obtained a fresh tenancy from the mortgagee after the mortgage came into being: (3) That a tenant inducted by the mortgagee remained a tenant during the continuance of the mortgage and on the redemption of the mortgage the tenancy comes to an end; (4) That in the case of agricultural tenancies, proposition No.(3) does not absoloutely hold good. There is an exception to it, namely, that the tenant of a mortgagee of agricultural land will continue to be its tenant even after redemption provided he has been inducted bona fide and in the like manner as a prudent owner would have done for the proper management of the land. Even in such a case, the operation of the lease cannot extend beyond the period for which it was granted. No lease can be granted if there is an express prohibition in the mortgage deed. The onus to prove the exception is on the tenant and unless a clear case is made out in favour of the exception, the general rule will prevail. (5) That it is open to a mortgagor to permit the mortgagee to induct tenants even beyond the terms of the mortgage; and if the mortgagee does so, on redemption, they will continue to be the tenants of the mortgagor” RSA No. 2250 of 2008 5 In the present case, the terms of the mortgage had not been proved on record as the mortgage deed has not been proved on record. Admittedly, plaintiff is in possession of the suit property. It is apparent that the mortgagees had rented out the suit property to the plaintiff for better management of the agricultural land. In these circumstances, the plaintiff was liable to continue as a tenant after the suit land was got redeemed by the appellants. As per Exhibit P7, copy of the khasra girdawari from Khariff 1979 to rabbi 1984, plaintiff was cultivating the suit land as a tenant and the rate of rent was ` 1200/- per annum. However, in the copy of the jamabandi for the year 1983-84, Exhibit P3, the impugned entry in column No.9 came into existence but the basis of the said change has not been mentioned in Exhibit P3. An application was moved by defendants Pushpa and others for recovery of rent from 1989-90, 1990-91 and 1991-92 at the rate of ` 1200/- per year. The said application was got dismissed as withdrawn vide Exhibit P13 dated 12.9.1999. It appears that the application was got dismissed as withdrawn as the amount in question had been deposited by the plaintiff on 4.5.1993 vide Exhibit P15. In these circumstances, the learned First Appellate Court rightly decreed the suit of the plaintiff as an entry qua rate of rent has been effected in the revenue record without any basis. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge April 26,2011 arya RSA No. 2250 of 2008 6