IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.8903-04-C of 2007 in RSA NO.3185 OF 2007 DECIDED ON : 10.08.2009 Raj Pal Singh & others ...Appellants versus Pritam alias Ved Parkash & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Sunil Panwar, Advocate for the appellants. AJAY TEWARI, J. (ORAL) CM No.8903-C of 2007 For the reasons recorded in the application, the delay of 21 days in refilling the appeal is condoned. CM stands disposed of. RSA No.3185 of 2007 This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondent for possession over the land left behind by Rattan Singh and others. Learned counsel has proposed the following questions: i) Whether in view of pleadings, sanction of mutation and partition of land vide instrument Ex.D1 the present suit had become infructous and was liable to be dismissed? ii)Whether tenancy created by Mishir Singh Vendee, at the time of his absolute ownership, would terminate on redemption of land from mortgage on death of original vendor? iii)Whether defendants No.5 to 8-appellants, who were RSA No.3185 of 2007 -2- admittedly tenants over disputed property, could only be evicted by recourse to proceedings under the Punjab Security and Land Tenures Act? iv)Whether relief of possession can be granted in respect of property for which neither any pleadings have been made, nor issue framed and neither any evidence led? v)Whether the suit was not maintainable in its present form and jurisdiction of Civil Court barred in view statutory remedy available under the Redemption of Mortgages (Punjab) Act 1913? vi)Whether the impugned judgments and decrees results from misleading of evidence and mis-appreciation of law and patently perverse? With regard to question No.(ii), (iii) & (iv), they are overlapping. Learned counsel is not in a position to deny that in general a mortgagee cannot bind the mortgagor to a relationship which out-lives the mortgage. He however relies upon a judgment of Hon'ble Supreme Court in Ram Chand versus Randhir Singh & others reported as 1994 PLJ 543, wherein it was held as follows: “The legal position with regard to the agricultural leases, has also been settled by a five judge Bench of this Hon'ble Court in Prabhu versus Ramdeo & others AIR 1966 S.C.1721, by holding that persons inducted into agricultural lands as tenants by a usufructuary mortgagee, who became entitled to protection under the tenancy laws, cannot be ejected by the mortgagor RSA NO.3185 OF 2007 -3- on the ground that the mortgage of the land had been redeemed. Even though that was a case in which the right of tenure accrued to the tenants after the creation of the lease but on principle it would not make a difference in so far as the present case is concerned, where the Punjab Security of Land Tenures Act giving protection to the tenants from ejectment, except on grounds mentioned in the statute, became available from 15.04.1953 onwards, and the lease herein has been shown to have commenced with the agricultural year starting from 15.06.1953, within a span of two months of that Act being enforced. When viewed in this backdrop it becomes apparent that when the mortgagee changed the tenant, he had done so under his legal right and obligation under Section 76(a) of the Transfer of Property Act and the just and equitable principles involved therein. Thus his deeds in that regard are to be considered as deeds of the mortgagor. Having arrived at such conclusion, it is not difficult then to proceed on the footing that the tenancy created by the mortgagee was in sum and substance the tenancy created by and for the mortgagor and when on that basis the mortgagor gets to be the vendor of the land sold during the subsistence of the mortgage, the tenants inducted on the land by the mortgagee for him, non-ejectable at will, derive the right of preemption. For the ultimate social goal is that the land must go to the tiller, whose bare feet get kissed and blessed by the feel of Mother Earth. In Atam Parkash vs. State of Haryana, 1986(2) SCC 249 at page 261, Chinnappa Reddy, J. speaking for this Court had held: “The right of preemption vested in a tenant can also be easily sustained. There can be no RSA NO.3185 OF 2007 -4- denying that the movement of all land reforms legislations has been towards enabling the tiller of the soil to obtain proprietary right in the soil so that he may not be disturbed from possession of the land and deprived of his livelihood by a superior proprietor. The right of preemption in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant. There can be no dohbt that tenants form a distinct class by themselves and the right of preemption granted in their favour is reasonable and in the public interest.” The first question is thus answered accordingly to hold that an agricultural tenant inducted in terms of Section 76(a) of the Transfer of Property Act, by the usufructuary mortgagee, has a right of preemption over the sale made by the mortgagor-vendor.” Learned counsel for the respondent has however placed reliance on the findings of the learned Lower Appellate Court that in fact the story of the tenancy and the Will was created by the appellants after the judgment of 1964 (Ex.P-2) (which conclusivly determines the right of the parties). Further learned counsel has brought to my notice that in the case of Ram Chand(supra) the Hon'ble Supreme Court has noticed that the land in dispute was already under tenancy when the mortgage was created and thus it cannot be said that the mortgagee had created a relationship, which would subsist beyond the mortgage. Similar is the position in the case of Dharambir versus Risal & others reported as 1996 PLJ page 638. In that case also temporary injunction was granted against mortgagor in favour of RSA NO.3185 OF 2007 -5- a long standing tenant. As mentioned above, in the present case, there is finding of fact that the story of the tenancy was created after the judgment Ex.P-2. In the circumstances, I hold questions No.(ii) & (iii) against the appellant. With respect to question No.(iii) learned counsel for the appellant has argued that at the time when the suit was filed Kiru was alive and thus suit could be filed only qua the property of Rattan Singh. Hence as per learned counsel for the appellant the decree of the Courts below relating to land belonging to Kiru was beyond the scope of suit. In my opinion, this matter has been rightly considered by the learned Lower Appellate Court in para 30 wherein it has held as follows: “I do not find favour with the above referred arguments of learned counsel for the appellants- defendants reason being that the right in favour of the present respondents-plaintiffs accrued on the death of Rattan Singh and Kiru(vendors). Admittedly, Rattan Singh died and thereafter present suit was filed and during pendency of this suit, second vendor Kiru was also died and right in favour of the respondents- plaintiffs accrued regarding other half share as per judgment Ex.P2 as referred above. It is also established on record that present respondents- plaintiffs are collateral's, agnates and reversioners of deceased Rattan Singh and Kiru and in my view there is no need to file a separate suit for possession regarding share of Kiru and learned lower court has rightly allowed relief accrued in view of judgment Ex.P2 in their favour regarding the entire land alienated by the vendors Rattan Singh and Kiru. Even RSA NO.3185 OF 2007 -6- otherwise, a decree has already been passed in favour of the respondents-plaintiffs and they fought litigation upto the Hon'ble Apex Court and now fruits of that decree is not to be denied to them only on the ground that separate suit is not to be denied to them only on the ground that separate suit is to be filed after death of Kiru pertaining to his share. It is for the court to see what relief is to be granted in favour of the plaintiffs in the interest of justice.” With regard to question No.1 learned counsel for the appellant has argued that the plaintiff had filed another suit for the land in dispute wherein the appellant had not been impleaded as party but where some other persons had been impleaded as parties who had been found by the Revenue Courts to be entitled to the protection of the Punjab Security and Land Tenures Act, 1953 and since at that time they did not implead the appellant, the present suit should be dismissed. In my opinion, that was a dispute among co-owners and therefore there was no illegality in the plaintiffs-respondents in not impleading the mortgagees and their tenants. It may further be noticed that one of the reasons for which Courts below have dismissed the suit is that the appellants were claiming tenancy under their own father. The Courts have also found that litigation between the respondents and the predecessor-in- interest of the appellants went right upto the Supreme Court wherein Ex.P-2 was finally affirmed. As per that judgment & decree in favour of the appellants being against the interest of reversioners, was converted into an mortgage to subsist till the RSA NO.3185 OF 2007 -7- life-time of the Rattan Singh and Kiru. Consequently, this appeal and application for stay are dismissed. No costs. August 10, 2009 (AJAY TEWARI) sonia JUDGE