Case: Prabhu Vs. Ramdev &amp; Others

further to any contract not contrary to S. 4 be entitled to all the rights conferred and be subject to all the liabilities imposed on Khatedar tenants under the Act. In other words, as soon as S. 15 came into operation on October 15, 1955, the possession of the respondents, who had been inducted into the land by mortgagee was substantially altered and they became Khatedars by virtue of the statutory provisions prescribed by S. 15. 10. Section 161 of the Act provides that no tenant shall be ejected from his holding otherwise than in accordance with the provisions of this Act. The position thus is clear that as soon as the Act came into force the respondents were entitled to the benefits of S. 15 and cannot be ejected except under the provision of the Act in view of S. 161.It is because of these provisions that the appellant was driven to make the plea that the respondents were trespassers inasmuch as they had voluntarily surrendered possession of the land to him after the redemption decree was passed and had wrongfully entered into possession thereafter. That plea has not been proved and the matter falls to be considered squarely within the provisions of Ss. 15 and 161 of the Act. It is true that S 183 of the Act provides for the ejectment of a trespasser but that section has no application to this case inasmuch as the respondents cannot be held to be trespassers at all.11. Mr. Misra, however, contends that there are two decisions of this Court which support his case that tenants introduced by the mortgagee during the continuance of the mortgage can have no claim to remain in possession of the land after the mortgage itself has been redeemed and he argues that the said principle would justify the appellants claim for ejecting the respondents in the present case. In Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205 , this Court has held that as a general rule a person cannot, by transfer or otherwise, confer a better title on another than he himself had. A mortgagee cannot, therefore, create an interest in the mortgaged property which will ensure beyond the termination of his interest as mortgagee. In consequence any lease granted by a mortgagee in possession must come to an end at redemption. A mortgagee, cannot, during the subsistence of the mortgage act in a manner detrimental to the mortgagors interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the fields thereby defeating the mortgagors right to khas possession; such an act would fall within the provisions of S. 76, sub-cl (e) of the Transfer of Property Act. It is on these observations that Mr. Misra founds his argument12. It must be remembered that these observations were made by reference to the normal relationship between the mortgagor and the mortgagee and their respective rights and obligations as determined by relevant provisions of the Transfer of Property Act. Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted into the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. 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, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation. That is precisely what has happened in the present case. During the continuance of the mortgage S. 15 of the Act came into operation and that made the respondents Khatedars who are entitled to claim the benefit of S. 161 of the Act.13. The other decision on which Mr. Misra relies is Harihar Prasad Singh v. Deonarain Prasad 1956 SCR 1 : (AIR 1956 SC 305 ). In that case it was held that the persons inducted by mortgagees could not be raiyats within the meaning of S. 5 (3) of the Bihar Tenancy Act so as to acquire any rights of occupancy under S. 21 of the said Act. This conclusion, however, flows from the basic fact that the mortgagees who inducted the tenants into the land were neither proprietors nor tenure holders as defined by the said Act.14. Section 5 (3) of the said Act 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; and so, when tenants claimed the status of raiyat, in that case it became necessary to consider whether they held the land under a proprietor or under a tenure-holders, and since it was clear that the mortgagees were neither proprietors nor tenure-holders, the tenants inducted by them could not claim the benefit of S. 5 (3). It would thus be seen that this decision turn inevitably upon the relevant provisions of the Bihar Act and the said provisions show that no statutory benefit had been conferred on the tenants as claimed by them under S. 5 (3) of the said Act. This decision, therefore, does not lay down any general proposition on which Mr. Misra can possibly rely.15. In the result, the view taken by the Board about the status of the respondents is right and the High Court was, therefore, justified in dismissing the appellants writ petition filed before it.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It must be remembered that these observations were made by reference to the normal relationship between the mortgagor and the mortgagee and their respective rights and obligations as determined by relevant provisions of the Transfer of Property Act. Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted into the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation. 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, it was observed, was a different matter altogether. Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act. It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation. That is precisely what has happened in the present case. During the continuance of the mortgage S. 15 of the Act came into operation and that made the respondents Khatedars who are entitled to claim the benefit of S. 161 of thethat case it was held that the persons inducted by mortgagees could not be raiyats within the meaning of S. 5 (3) of the Bihar Tenancy Act so as to acquire any rights of occupancy under S. 21 of the said Act. This conclusion, however, flows from the basic fact that the mortgagees who inducted the tenants into the land were neither proprietors nor tenure holders as defined by the said Act.Section 5 (3) of the said Act 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; and so, when tenants claimed the status of raiyat, in that case it became necessary to consider whether they held the land under a proprietor or under a tenure-holders, and since it was clear that the mortgagees were neither proprietors nor tenure-holders, the tenants inducted by them could not claim the benefit of S. 5 (3). It would thus be seen that this decision turn inevitably upon the relevant provisions of the Bihar Act and the said provisions show that no statutory benefit had been conferred on the tenants as claimed by them under S. 5 (3) of the said Act. This decision, therefore, does not lay down any general proposition on which Mr. Misra can possibly rely.In the result, the view taken by the Board about the status of the respondents is right and the High Court was, therefore, justified in dismissing the appellants writ petition filed before it