1 487 C RSA No771 of 199960c4M1 1 Inthe HighCourt of Punjaband Haryanaat Chandigarh RSA No771 of 1999 IOSMI Date of decisionl March 072011 1 ManjeetSinghetc Appellants lr 0 C0 C5 Versus I 2 C Chuni Lal and another espondents I CORAM HONBLE MRS JUSTICE SABINA Z PresentlMtGaurav ChopraAdvocate for the appellants 17 MrGoel Advocate and Z MSanjiv GuptaAdvocate for the respondents 5tkltk SABINA J Plaintiffs filed a suit for declaration to the eHect that order 1 dated 271990 was not bindingon their rights The case of the plaintiffswas that Mukand Singhwasowner of the suit property PlaintiHs were in cultivatingpossessionof the suit propertyas tenants under Mukand Singh An applicationwas . Anita 2012.06.05 14: 57 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 488 9 J RSA No 37710f1999 008cMl 2 4 defendants Nol to 10 Iegalheirs of Mukand Singhfor redemption of the Iand in disputewhich was under moltgagewith defendantNo The said application was allowed by the Assistant Collector Ist Grade Jagadhri vide the impugnedorder as the mortgage amount was paidto the mortgagee Defendants No 1 to 10 in their written statement averred that Mukand Singhhad mortgaged the suit propenywith defendant 1 No 11 on 81971 for a consideration of 80001 Manohar Lal was 0 0 giventhe possessionof the suit property PlaintiHshad not remained tenants under Mukand Singh An applicationwas moved by the C5 I answeringdefendants for redemption of the suit Iand and order dated Z 271990 was Iegal and valid and had been passed by the e competentCoutt Plaintiffs were not in possessionof the suit property t0 Defendant No 11 in his written statement averred that Z Mukand Singh had moitgagedthe suit propertywith him 80001 were paid at the time of the execution of agreementand 200001 w Z were Iiable to be paidsubsequentlyHowever Mukand Singhhad died before the mortgagedeed could be got registeredPossession of the plaintiffsover the suit Iand was as tenants The answering defendant had never cultivated the suit Iand On the pleadingsof the parties followingissues were framed bythe trial Couitl 1NVhether the order dated 2790 passed in case N026 IS illegal wrong nonexistence iteoperativenonest null and void without jurisdictionand not bindingupon the rights . Anita 2012.06.05 14: 57 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 489 G RSA No 3771 0f1999 608tMl of the plaintiffas allegedin the plaint7OPP Whether the plaintiffs are entitled for the relief of injunction as claimed in the plaint20PP 3Nhether the suit is not maintainable7OPD Whether the plaintiffshave no Iocus standi to file the presentsuit70PD 5NVhether the plaintiffshave no cause of action to file the presentsuit20PD 0 0 6lNhether the plaintiffsand defendant no 11are estopped I from filingthe suit bytheir own acts and condcut20PD C9 I A Whether the suit is barred under the SpecificRelief Act Z as aileged20PD 6mB Whether this Coutt has got no jurisdictionto try and entertain the presentsuit70PD I Relief Z OO The trial Court had dismissed the suit of the plaintiHsvide judgment w Z and decree dated 121996 Aggrievedby the said judgmentand decree plaintiffspreferredan appealand the same was allowed by the Additional District Judge Yamuna Nagar at Jagadhrivide judgmentand decree dated 241 11998 It was held that order dated 271990 was not bindingon the rightsof the plaintiffs Hence the presentappealbythe defendants Learned counsel for the appellantshas submitted that the plaintiffswere not tenants under the mortgagor Plaintiffs were tenants under the mongageeManoharLaI As per the mortgage 1J deed mortgageewas prohibitedto give the Iand on Ieaselrent . Anita 2012.06.05 14: 57 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 490 1 RSA No 3771of 1999 08cMl 4 Hence the plaintiffswere Iiableto be ejectedin execution of order dated 271 990 In supportof his argumentsIearned counsel has placedreliance on Mahabir Gope and others vs Harbans arain Sinqh and others AlR 1952 SupremeCourt 205 wherein it has been held as under The generalrule is that a person cannot by transfer or otherwise confer a better title on another than he himself 1 has A mortgageecannot therefore create an interest in 0 C3 the mortgagedproperty which will ensure beyondthe I termination of his interest as mortgagee Further the C5 I mortgageewho takes possession of the mongaged propertymust manage it as a person of ordinaryprudence 2 would manage it if it were his own and he must not commit any act which is destructive or permanentlyinjuriousto the I propetty It follows that he may grantieases not extending Z beyondthe periodof the mortgageany Ieases grantedby r him must come to an end at redemption A mortgagee meW Z cannot duringthe subsistence of the mortgageact in a Qn manner detrimental to the mortgagorsinterests such as by giving a Iease which may enable the tenant to acquire permanent or occupancy ghts in the Iand thereby defeatingthe mortgagorsrightto khas possession it would be an act which would fall within the provisionsof Section 76 sub clause el A perm issible settlement by a mortgagee Irl possession with a tenant in the course of prudent managementand the springingup of rightsin the tenant U . Anita 2012.06.05 14: 57 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 491 1 RSA No 3771 0f1999 608Ml 5 re conferred or created by statute based on the nature of the t Iand and possessionfor the requisiteperiodis a different rnatteraltogetherIt isan exception to the generalrule In such a case the tenant cannot be ejectedby the mortgagor even after the redemptionof the mortgage He may become an occupancy raiyat in some cases and a nor occupancyraiyatin other cases But the settlement of the l tenant bythe mortgageemust have been a bona fide one 0 This exceptionwill not applyin a case where the 0 I terms of the mottgageprohibitthe mortgageefrom making C5 I anysettlement of tenants on the Iand either expresslyor by necessaryimplicationWhere for exampleall the zamindari Z rightsare givento the mortgageeit may be possibleto infer C on the proper construction of the document that he can I settle Iands with tenants in the ordinarycourse of Z managementand the tenants mightacquirecenain rightsin r the Iand in their capacityas tenants 7 Z Learned counsel has also placedreliance on Jaqan Nath Qm vs Mittar Sain 1969 PLR 606 wherein it was held as under Held also that in the case of agriculturaltenancies the tenant of a mortgageewill continue to be a tenant even after redemptionprovidedhe has been inducted bona fide and in the Iike manner as a prudentowner would have done for the propermanagementof his Iancl Even in such a case the 4 operationof the Iease cannot extend beyondthe periodfor which it was granted No Iease can be grantedif there is an J expressprohibition in the mortgagedeed 11 . Anita 2012.06.05 14: 57 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 492 RSA No 3771of 1999608Ml 6 1 f Learned counsel for the respondents on the other hand has submitted that the plaintiffswere tenants under the mortgagor vlukand Singhand hence the redemption order was not bindingon therr Reliance was placedon Exhibit P13 and Exhibit P14earned counsel has further submitted that 75010of the Iand out of the suit propertyhas since been purchasedby the respondentsfrom the appellantnortgagor C There is no quarrelqua the Iegalpropositionput up by the 0 U Iearned counsel for the appellants The question that requires I consideration is as to whether the plaintiffswere tenants under the C5 I moitgagor or the mottgagee Execution of the mortgagedeed is not Z in dispute In this regard the most relevant documents are Exhibit P13 and Exhibit P14 As per Exhibit Pl 3 an application was moved by I L ManjeetSingh SOll of Mukand Singhallegingtherein that plaintiffs Z Chunni Lal and Sat Dev were tenants under the owners and had not 10 been payingrent It was further averred that due to this reason that w Z the owner was sufferingirreparableIoss It was prayedthat the Local Commissioner be got appointedto verifythe situation The said applicationwas addressed to Tehsildar Jagadhri On the said application order Exhibit Pl4 was passed On the basis of the reportof the Local Commissioner it was reportedqua the extent of standingcrops In these circumstances the plea taken by the appellantsthat the plaintiffswere tenants under the mortgagee 1 stands belied Since the plaintiffswere tenantsunderthe mongago redemption order dated 271990 will have no bearingon the rights lJ of the plaintiffswho had been inducted as tenants by the mongagors . Anita 2012.06.05 14: 57 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 493 RSA No 3771 0f 1999008N0 7 In these circumstances the judgmentsrelied upon by the Iearned counsel for the appellantsfail to advance the case of the appellants Learned first appellateCourt had rightlydismissed the suit of the plaintiffsthoughfor different reasons No substantial questionof Iaw arises in this appeal Dismissed 1 1 0 Judge 0 March 07 2011 I arya C5 I Z I Z m wno Z 5 . Anita 2012.06.05 14: 57 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document