HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 222 of 1997. Reserved on: 18.6.2008. Decided on: 7.7.2008. Ram Dutt and others ………Appellants. Versus Parkash Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.G.D. Verma, Senior Advocate, with Mr.B.C. Verma, Advocate. For the respondents: Mr.Ramakant Sharma, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellants/defendants against the judgment and decree passed by the learned District Judge, Solan, dated 11.6.1997, vide which he set aside the judgment and decree, dated 29.7.1987, passed by the learned Sub Judge, Kandaghat dismissing the suit of the respondents/plaintiffs for possession and the suit of the respondents/plaintiffs for possession was decreed on appeal. Briefly stated the facts of the case are that the respondents as plaintiffs filed a suit for possession as against the predecessor-in-interest of the appellants, who were impleaded as defendants. It was alleged by the plaintiffs that one Het Ram was owner in possession of the suit land comprised in Khasra ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Nos.181, 183 and 245, who mortgaged the same with possession to one Kesru, the predecessor-in-interest of defendants No.1 to 33, for a consideration of Rs.525, vide rapat No.285, dated 14.6.1953. The mutation No.123, dated 13.12.1953, was attested in favour of the mortgagee, but, while attesting the mutation, 1/3rd share in Khasra No.245 was omitted to be entered, but the same was entered in subsequent jamabandies. It was further alleged that Het Ram gifted away his entire property in favour of Sewak Ram, vide gift deed No.67, dated 9.10.1956. The said Sewak Ram died in 1964, who has been succeeded by the plaintiffs who are the owners of the suit land. It was further alleged that defendants No.1 to 31 are the successor-in- interest of original mortgagee Kesru, while defendant No.32 is the tenant on will under the mortgagee. It was further alleged that Khasra Nos.181 and 183 were shown in the ownership of the State of Himachal Pradesh, but these were in the exclusive possession of the plaintiffs out of the Shaamlat land and this land did not vest in the Gram Panchayat and thereafter in the State of Himachal Pradesh. Thus, it was alleged that the said Het Ram was owner of these two Khasra numbers and the State of H.P. has been impleaded as defendant No.33. It was further alleged that Parkash Chand, one of the plaintiffs, had paid Rs.525/- the mortgage money to Jagat Ram, son of Kesru, on 1.2.1979 and, therefore, the mortgage stands discharged and the plaintiffs are entitled to possession of the land without payment of any money. Defendants No.1 to 31 did not contest the suit except defendant No.17 and 30, who were minors, who filed written statement through their Court Guardian. Defendant No.32, the tenant, pleaded that he was inducted as a - 3 - tenant by Het Ram, prior to the creation of mortgage by him in favour of Kesru. Thus, he pleaded that he become owner under H.P. Tenancy and Land Reforms Act and he claimed ownership by way of adverse possession in the alternative. He also alleged that he has made improvements on the land by spending Rs.10,000/-. The State of Himachal Pradesh took up the plea that the suit was not maintainable, no notice under Section 80 CPC was served. However, on application, it appears that the name of defendant No.33/State of Himachal Pradesh was deleted. The learned trial Court framed issues and on conclusion of the trial, it held that the suit land was mortgaged and defendant No.32 was inducted as a tenant by mortgagee Kesru. It was held that the mortgage amount stands already paid but the learned trial court came to the conclusion that the suit for possession was liable to be dismissed since the suit was filed for redemption of part of the property excluding Khasra Nos.181 and 183 owned by the State of Himachal Pradesh, which were also part of the mortgage and, therefore, it dismissed the suit. On appeal, the learned First Appellate Court affirmed the findings of the learned trial Court on various issues but it concluded that the plaintiffs were entitled to possession of the suit land on redemption, suit was not for partial redemption and no protection was available to the tenant (defendant No.32) under the provisions of the Act. I have heard the learned counsel for the parties and have gone through the record of the case. - 4 - The appeal has been admitted on the substantial questions of law firstly whether a tenant cannot be dispossessed except in accordance with the procedure prescribed under the H.P. Tenancy and Land Reforms Act and as such the Civil Court has no jurisdiction. Secondly, as to whether under the provisions of Transfer of Property Act, in the event of redemption, the mortgagor cannot claim the dispossession of the tenant in view of the provisions of H.P. Tenancy and Land Reforms Act. Thirdly, whether the Civil Court is barred from taking cognizance with respect to Shaamlat land and cannot try the suit. The submissions made by the learned counsel for the appellants have to be considered in the light of the above three substantial questions of law on which the appeal was admitted for hearing. The submissions made by the learned counsel for the appellants were that the status of the appellants as tenants was admitted by the plaintiffs as alleged in para 6 of the plaint. It was also submitted that the appellant was tenant prior to 1950 and on enforcement of H.P. Tenancy and Land Reforms Act, the tenant had become owner and was not liable to be evicted except by way of procedure prescribed under the H.P. Tenancy and Land Reforms Act. It was also submitted that since the tenant had become owner by way of operation of law, right was not available to the plaintiffs to evict the tenant. On the other hand, the submissions made by the learned counsel for the respondents were that the plaintiffs have not admitted defendant No.32 as a tenant under mortgagee but since he was recorded as a tenant under mortgagee, they have alleged the status of defendant No.32 as a tenant. It was submitted that the money has been paid to one of the mortgagees and the - 5 - statement of defendant No.1 was sufficient to prove that he was not inducted as a tenant by the previous owner or before mortgage and once he was inducted as a tenant by the mortgagee and there is no plea of good management, therefore, the findings recorded by the learned First Appellate Court are liable to be affirmed which are based upon correct appreciation of evidence and law. Coming to the first question as to whether defendant No.32 was inducted as a tenant by Het Ram, the previous owner, or by the mortgagee after the creation of the mortgage in 1953, the learned trial Court had referred to the evidence under Issue No.4 in this regard. After referring to the oral and documentary evidence led in this regard, the learned trial Court had concluded that defendant No.32 was proved to have been inducted as a tenant over the suit land by the mortgagee. During the course of hearing of the appeal, the learned First Appellate Court had also framed the first question for determination as to whether defendant No.32 was inducted as a tenant by mortgagor/owner or mortgagees in possession. The learned trial Court referred to the statement of Bhagat Ram, defendant, as DW-1 and other evidence and a reference was also made to copy of jamabandi Ext.P-3 for the year 1953-54, wherein Het Ram himself was recorded owner and in possession through mortgagees after creation of mortgage. It was concluded that defendant No.32 was recorded as a tenant thereafter only since he came in possession as a non-occupancy tenant after the creation of the mortgage. Thus, the findings under Issue No.4 recorded by the learned trial Court on this aspect were affirmed by the learned First Appellate Court and I do not see any reason to differ with these findings of fact recorded by both the courts below. - 6 - The next question which arises for consideration is as to whether defendant No.32 was entitled to protection under H.P. Tenancy and Land Reforms Act and he could be evicted only by one of the conditions as laid down under the H.P. Tenancy and Land Reforms Act and not under ordinary law that he was entitled to hand over the possession on redemption. On this point, the learned First Appellate Court had referred to a decision of this Court in Kanta Devi v. Khushia, 1996 (2), Shim.L.C., 365, wherein this question arose directly for consideration before this Court, which answered the question by making the following observations in para 20 of the judgment, which are relevant and are being reproduced below: “Since the rights of the defendant inducted by the mortgagee have not improved by virtue of statutory provisions, as are inforce, the present case has to be dealt with under the general law, that is, The Transfer of Property Act. The general rule that a mortgagee cannot create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee, would be applicable in the present case. Therefore, the tenancy created by the mortgagee in favour of the defendant will be deemed to have come to an end on the redemption of the mortgage by the plaintiff.” In view of the clear findings given in the above case, it is clear that no protection is available to defendant No.32 that he could be evicted under the provisions of H.P. Tenancy and Land Reforms Act only. No plea of good management was taken by defendant No.32 that he was inducted by the mortgagee as an act of prudent management and, therefore, he could claim that he was liable to be protected from the eviction since the plea taken by defendant No.32 was to this effect that he was inducted by the previous owner/mortgagor before the creation of mortgage. Therefore, this protection - 7 - was not available to defendant No.32 that he was inducted as an act of good management. The learned trial Court had also concluded that defendant No.32 had failed to prove his adverse possession in the alternative and had also concluded that he was not entitled to the amount of improvements made since these were made to use the land in proper manner and those questions do not arise in the present appeal since the appeal was not admitted for consideration of those pleas also. No specific arguments were advanced as to how the Civil Court is debarred from taking cognizance with respect to Shaamlat land since the relief in regard to Shaamlat land was not claimed by the plaintiffs since the State of H.P. was deleted from the array of defendants. Moreover, in regard to Khasra Nos.181 and 183 entered as Shaamlat land, these were never part of the mortgage though a reference was made to the share in the Shaamlat land, which could not have been mortgaged and, therefore, the learned First Appellate Court had rightly concluded that the suit was not for partial mortgage and since the relief was not being considered by the Civil Court in regard to Shaamlat land, it cannot be said that the suit cannot be tried by the Civil Court. The appeal was not admitted on substantial question of law as to whether defendant No.32 had become owner or not or that question fell within the domain of Land Reforms Officer and, therefore, the plea in that regard cannot be considered. From the above discussion, it is clear that the findings of the learned First Appellate Court on all the points raised before it are based upon correct appreciation of evidence and law and I see no reasons to differ with those - 8 - findings recorded by the learned First Appellate Court and the same are affirmed. The appeal is dismissed accordingly. Parties are left to bear their own costs. July 7, 2008. (V.K. Ahuja), (TILAK) Judge.