Case: Harihar Prasad Singh And Another Vs. Must. Of Munshi Nath Prasadand Others

both those sections.15. In 97 Ind Cas 852 (Pat) (G), the suit was by a mortgagor after redemption to recover possession of lands, which had been leased by the mortgagee. The proprietor claimed that the lands were zirait; but the finding, however, was that they were raiyat lands, and that the mortgagee had inducted tenants into possession in the usual course of management. It was held that the tenants could not be ejected. The decision was expressly based on the fact that the lands were raiyati lands, and the learned Judges distinguished the cases in the learned Judges distinguished the cases in - Mahadeo Prasad v. Gajendhar Prasad, AIR 1924 Pat 362 (J) and - Jogeshwar Mazumdar v. Abed Mahomed Sirkar, 3 Cal WN 13 (K) on the ground that the lands which were the subject of mortgage therein were zerait lands. This decision does not support the broad proposition for which the respondents contend, and is really against them, as the mortgage in the present case is of kamat lands.16. In AIR 1930 Cal 738 (H), the facts were similar to those in 97 Ind Cas 852 (Pat) (G), except that the lands do not appear to have been raiyati lands. In holding that the mortgagor was not entitled to possession, Guha J. observed that the mortgage deed did not stand in the way of the tenants being settled by the mortgagee, and that whey they were so settled they had well defined rights under the Act, and could not be ejected. If S. 5(3) of the Act did not apply - and it would not, unless the letting was by the proprietor or tenure-holder - it is not stated what other provision of law operated to confer occupancy rights on the tenant. The learned Judge then referred to - Binad Lala Pakrashi v. Kalu Pramanik, 20 Cal 708 (L) as furnishing the principle on which the decision should rest. There, a tenant was put into possession by a person who claimed to be the proprietor, and though it subsequently turned out that he was not, it was held that the letting by him conferred on the tenant the status of a raiyat. As pointed out in - Peary Mohan Mondal v. Radhika Moham Hazra, 8 Cal WN 315 (M) and - Krishna Nath v. Mohomed Wafiz, AIR 1916 Cal 598 (N), the basis of the decision in 20 Cal 708 (L) was that the word "proprietor" in S. 5(3) would include a de facto as well as a de jure proprietor, and a tenant who is bona fide inducted into possession by him would have the status of a raiyat. This decision makes an inroad on the general principle that no one can confer a better right than what he has got, and later decisions have generally shown a disposition to confine its application within narrow limits. But even on its own ground, it can have no application when the person who admits a tenant is not, as required by S. 5(3), a proprietor de facto or de jure, but a mortgagee. The principle of the decision in 20 Cal 708 (L) does not therefore support the conclusion in AIR 1930 Cal 738 (H) that a tenant admitted by a mortgagee into possession acquires the status of a raiyat.17. In AIR 1937 Cal 763 (I), a permanent lease was granted by a mortgagee after he had obtained a decree for foreclosure. Subsequently, that decree was recalled in a suit by the Official Receiver representing one of the mortgagors and a fresh decree for redemption was passed. After redemption, the Official Receiver received rent from the lessee treating him as a tenant on the land. A transferee from the Official Receiver having subsequently instituted as suit in ejectment against the tenant, it was held that the latter had acquired a right of occupancy under S. 21 of the Act, and that the relief for khas possession could not be granted as against him. Notwithstanding that some of the observations in the judgment are widely expressed, the ground of the decision really is that when the Official Receiver accepted rent from the tenant, that amounted to an affirmance of the lease by him, and that would have the effect of bringing S. 5(3) directly into play and conferring on the tenant the status of a raiyat. The decisions discussed above do not lay down any acceptable principle that the lease by a mortgagee which is protected by S. 76(a), T. P. Act, operates by itself to confer a right of occupancy on the tenant under S. 21 of the Act.18. Some argument was founded by the respondents on the clause in Exhibits 2 and 3 that the mortgagee could get the lands cultivated. It was contended that this clause conferred authority on the mortgagee to settle raiyats on the lands, and that the tenants admitted in pursuance of this authority would be in the same position as if they had been admitted by the proprietor and the conditions of S. 5(3) would be satisfied. But then, the lands are private lands, and the clause in question is followed by the provision that on redemption the mortgagors would be entitled to resume "sir and khas possession", and that would be rendered nugatory if the deed is construed as authorising the mortgagees to settle tenants on the lands with the status of raiyats. The authority to get lands cultivated can only mean getting them cultivated through hired labour as contemplated in the definition of private lands. We are clearly of opinion that the mortgage deed conferred no authority on the mortgagees to admit tenants so as the confer on them rights of occupancy.19. In the result, we must hold that the defendants of the second party have failed to establish that they have any rights of occupancy over the suit lands, and that the plaintiffs are accordingly entitled to a decree in ejectment, with future mesne profits as claimed in the plaint.

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

Explanation:
1[ds]These recitals are of considerable importance, as they occur in deeds inter-parties.The respondents are right in contending that they cannot be regarded as admissions by the mortgagees as the deeds were executed by the mortgagors; but they are certainly admissible under S. 13, Evidence Act, as assertions of title and as it is under these documents that the first party defendants claim, their probative value as against them and as against the second party defendants who claim under them is1(b) is a simple mortgage executed by Firangi Rai and others on 21-12-1901 in favour of one Chhotu Singh over some properties forming part of the suit lands. It also contains the recital that these properties are kamat khudkasht lands.They simply trust to the presumptions in their favour enacted in Ss. 120(2) and 103-B of the Act to non-suit the plaintiffs. But these are rebuttable presumptions, and they have, in our opinion, been rebutted by the evidence in the suit, which is all oneargument proceeds on a misconception about the true scope of S. 120. That section does not enact that no land shall be recorded as private, unless it is proved to have been cultivated as private land for 12 years prior to the date of theonly provides that when that is proved, it shall be recorded as private land. But when not such evidence is forthcoming, it does not preclude that fact from being established by "any other evidence that may be produced", if that is relevant and admissible under the provisions of the Evidencethe reasons already given, we are of opinion that it is sufficient to justify a finding in theA-1 and A-1(1) are certified copies of the objection petitions stated to have been filed by the mortgagors under S. 103-A of the Act, and they purport to have been signed by one Chulai Mahto as karpardaz of some of theplaintiffs deny the genuineness of the signatures in Exhibits A-1 and A-1(1) and also the authority of Chulai Mahto to represent the mortgagors. There is no evidence that the signatures on Exhibits A-1 and A-1(1) are true, but the defendants rely on the presumption enacted in S. 90, Evidence Act, in favour of theiris again to be noted that the objection on the merits raised in Exhibits A-1 and A-1(1) that the lands are bakasht lands in the possession of mortgagees is not one which it was to the interests of the mortgagors to put forward, as, if accepted, it would preclude them from admitting tenants in respect of them, without conferring on them the status of settled raiyats and occupancy rights under S. 21 of thewas only if the lands were private lands that the proprietor would be entitled to cultivate them personally, and that was the claim which they had been making consistently from 1893 onwards. The claim put forward in Exhibits A-1 and A-1(1) is destructive of the rights claimed all along by the mortgagors, and amounts to an admission that the lands are not private and raises the doubt that the petitions were not really inspired byrecitals in the lease deed, Exhibit 2(a) which was executed by the defendants of the second party, were inconsistent with their claim that the lands wereis, therefore, must to be said for the contention of the appellants that the proceedings evidenced by Exhibits A-1 and A-1 (1) were collusive inplaintiffs who claim that the lands are kamat have to establish it by clear and satisfactory evidence. If the evidence adduced by them is sufficient, as we have held it is, to establish it, the presumption under S. 103-B equally with that under S. 120(2) becomes displaced. In the result, we are of opinion that the suit lands are the private lands of thethe present case, the tenants got into possession under Exhibit 2(a), which was a lease for two years, and they would therefore be precluded from acquiring occupancy rights by virtue of thatpoint has not been argued whether, as Exhibit 2(a) is an agricultural lease the tenants who held over after the expiry of the period fixed therein, should not be considered to hold as tenants from year to year, on the principle enacted in Ss. 106 andmortgagee is no doubt the transferee of an interest in immovable property, and may in a loose sense be said to be the owner of that interest. But the definition of a proprietor requires that he should own the estate or part thereof and not merely an interest therein. It would be a contradiction in terms to say of a mortgagee that he owns the estate over which he owns anquestion whether for purposes of S. 21 of the Act a tenant from a mortgagee can be held to be a raiyat as defined in section 5(3) was considered by this Court in - Mahabir Gope v. Harbans Narian Singh, AIR 1952 SC 205    at p. 207 (F), and it was held that a mortgagee is neither a proprietor nor a tenure-holder, and a tenant inducted by him on the lands is not a raiyat within the definition of those terms under the Act. That decision governs this case.The contention of the respondents that the mortgagees could be considered as tenure-holders within S. 5(3) is equally untenable. Section 5(1) defines a tenure-holder as meaning a person who has acquired a right to hold lands for collecting rents or for bringing them into cultivation by establishing tenants thereon. In the present case, the lands were under the personal cultivation of the mortgagors at the time when they were mortgaged under Exhibits 2 and 3. There were then no raiyats on the land and no question of transferring the right to collect rent fromthat clause would apply only if the lands had to be brought afresh under cultivation, and that was not the position here. As the mortgagees are neither proprietors nor tenure-holders as defined in the Act, the tenants holding under them could not claim to be raiyats as defined in Ss. 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of theargument proceeds on a confusion of two wholly independent concepts distinct in their origin and different in their legalthe present case, assuming that the mortgagees had the power under S. 76(a), T. P. Act, to continue the lessees under Exhibit 2(a) as tenants on the lands after the termination of the period fixed therein, that would confer on them at best the status of tenants from year to year and not given them the right to continue in possession after the termination of the agricultural year during which the redemption takesthis view, the power of the mortgagee under S. 76(a), T. P. Act, to induct tenants in the usual course of management would not avail the respondents to claim occupancy rights over theif the respondents cannot resist the suit for ejectment either by reason of S. 76(a), T. P. Act, or S. 21, Bihar Tenancy Act, it is difficult to see how they could get such a right as the result of the interaction of both thosedecision does not support the broad proposition for which the respondents contend, and is really against them, as the mortgage in the present case is of kamatprinciple of the decision in 20 Cal 708    (L) does not therefore support the conclusion in AIR 1930 Cal 738    (H) that a tenant admitted by a mortgagee into possession acquires the status of adecisions discussed above do not lay down any acceptable principle that the lease by a mortgagee which is protected by S. 76(a), T. P. Act, operates by itself to confer a right of occupancy on the tenant under S. 21 of thethen, the lands are private lands, and the clause in question is followed by the provision that on redemption the mortgagors would be entitled to resume "sir and khas possession", and that would be rendered nugatory if the deed is construed as authorising the mortgagees to settle tenants on the lands with the status ofauthority to get lands cultivated can only mean getting them cultivated through hired labour as contemplated in the definition of private lands. We are clearly of opinion that the mortgage deed conferred no authority on the mortgagees to admit tenants so as the confer on them rights of occupancy.19. In the result, we must hold that the defendants of the second party have failed to establish that they have any rights of occupancy over the suit lands, and that the plaintiffs are accordingly entitled to a decree in ejectment, with future mesne profits as claimed in the