PRABHU

RAMDEV & ORS.

February 28, 1966

[P. B. GAJE:-; DRAGADKAR, c. J., K. N. WA~CHOO, M. J-IIDAYATULLAll, B

1. C. SHAH ASD S. M. SIKRI, JJ.]

Transfer of Property Act (4 of 1882), s. 16(e)-Tenants inducted by mortgagee-When ca11 continue in possession after tenninttion of nrortgage.

The appellant's father created a usufructuary mortgage of the land m dispute and the mortgagee admitted the respondents as tenants. During the continuance of the mortgage and while the respondents were in po!· session as tenants, the Rajasthan Tenancy Act, 1955, came into orce. lbe mortgage was eventually redeemed but the respondents con!lnued in possession.

The appellant therefore sued for possession of the land before the revenue authorities and the Board of Revenue in appeal, held that by virtue of the provisions of s. 15 of the Act, the possessioo of the respondents was unassailable, that they could be ejected, in view of s. 161, only in accordance with the provisions of the Act, but that, none of the iirounds available to the appellant had been proved.

The High C.ourt d1Smissed the writ petition of the appellant challenging the Board's decision.

In appeal to this Court, on the questi\'.ln whether the respondents could be ejected on the ground that the mortgage had been redeemed,

HFLD: A; a general rule under s. 76(e) of the Transfer of Property E Act, a mortgagee cannot create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee.

But the rights of the tenants inducted by the mortgagee may be improved by virtue of statutory provisions which may meanwhile come into operation, and that was pr, cisely what had happened in the present case.

During the continuance of the mortgage, s. 15 of Rajasthan Tenancy Act came into operation and 1bat made the respondents Khatedars who are entitled to claim the benefit of s. 161 of that Act.

[680 A-DJ F

Mahabir Gope v. llarbans Narain Singh, [1952) S.C.R. 775, explained.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 323 of 1963.

Appeal by special leave from the judgment and order daled October 20. 1961 of the Rajasthan High Court in D. B. Civil Writ G No.41 ofl959.

B. C. Misra and M. V. Goswami, for the appellant.

S. C. Agarwal, for respondent No. I.

R. N. Sachthcy. for respondents Nos. 4 and 5.

The judgment of the Court was delivered by H Gajendragadkar, C. J. The appellant Prabhu is the owner of agricultural land hcarin!! Khasra Nos. 224, 215, 244, 299, 320, 506,

' •

·-

r •

A 617 and 687 situated in village Nilakpur, Tehsil Behror, District Alwar, in the State of Rajasthan. The appellant's father Jora had executed a usufructuary mortgage of the said land in about 1936 for a period of twenty years in favour of one Ganga Din. After the expiry of the period prescribed by the said mortgage, the appellant obtained a decree for redemption on July 16, 1956. This decree B declared that the mortgage and all encumbrances created by the mortgagee or any person claiming under him were extinguished and directed the mortgagee to deliver possession of the mortgaged property to the appellant.

It appears that during the continuance of the mortgage, the mortgagee Ganga Din had let out the aforesaid land to respondents I to 3 Ramdev, Yadram and Nathu respectively.

Meanwhile, on October 15, 1955 the Rajasthan Tenancy Act, 1955 (No. 3 of 1955) (hereinafter called 'the Act') had come into force.

On July 28, 1956, the appellant instituted the present suit for possession of the land in question against the three respondents. This suit was tried by the Sub-Divisional Officer, Behror. In this suit the appellant had alleged that after the redemption decree had been passed in favour of the appellant, the respondents had in fact delivered possession of the property to the appellant, but a few days thereafter they had trespassed into the property and obtained its possession wrongfully. This plea was resisted by the respondents on the ground that they had not surrendered possession of the property to the appellant as alleged by him and that under the relevant provisions of the Act they were entitled to remain in possession of this property. On these pleadings the learned Sub-Divisional Officer framed two issues. They were: No. I. Whether the respondents are trespassers in respect. of foe fields and are liable for ejectment; and No. 2. to what relief, if any, the appellant is entitled to ?

He found that the respondent> were not trespassers as alleged by the appellant and as such the appellant was not entitled to any relief.

Jn the result, the appellant's suit was dismissed.

Against this decision the appellant preferred an appeal before the Additional Commissioner, Ajmer. The appellate authority reversed the finding of the trial court and held that the appellant was entitled to eject the respondents. The respondents challenged the correctness of this order by preferring a second appeal before the Board of Revenue for Rajasthan, Ajmer. Their appeal succeeded and in consequence, the order passed by the appellate authority was set aside and that passed by the trial judge was restored. The Board has held that by virtue of the provisions of s. 15 of the Act, the possession of the respondents 1as unassailable and they could

SUPREME

COURT

REPORTS

[1966] 3 S.C.R.

be ejected only in accordance with the relevant section of the said Act. Since none of the grounds av;1ilable to the appellant under the Act had been proved, he was not entitled to a claim for cjectment.

The validity of the Board's decision was challenged hy the appellant by moving the Rajasthan High Court in its writ jurisdiction under A rt. 226 of the Constitution.

It was urged hy the appellant before the High Court that the order passed hy the Board was plainly erroneous in Jaw and as such should be set aside. This petition, however, failed and was dismissed by the High Court. It is against this decision that the appellant has come to this Court by special leave. ·

The relevant facts, in the light of which the question of law raised before us by Mr. Misra on behalf of the appellant has to be considered, arc no longer in dispute. The appellant's father created a usufructuary mortgage of the land and during the continuance of the said mortgage the respondents were admitted as tenants.

The mortgage was eventually redeemed and in spite of the redemption decree the respondents continued in possession of the land.

On these facts the question which arises for our decision is: whether the respondents, who have been inducted into the land as tenants by the usufructuary mortgagee, can be ejected by the appellant on the ground that the mortgage in question has been redeemed. The answer to this question depends upon the effect of s. 15 of the Act.

Before dealing with the specific provisions of the said section we may refer to two definitions which are relevant. "Tenant" has been defined bys. 5(4:1) of the Act as meaning a person hy whom rent is or but for a contract, express or implied, would he payable and except when the contrary intention appears, shall include a cotenant or a grove-holder or a village scrrnnt or a tenant of khudkasht or a mortgagee of tenancy rights but shall not include a grantee at a favourable rate of rent or an ijaredar or a thekadar or a trespasser. That is how the definition stood at the relevant time. The test prescribed by this definition is that the person can claim to be a tenant if it is shown that rent is payable hy him in respect of the land.

That test is clearly satisfied by the three respondents in the present case.

The nc.\t definition to which it is neccssarv to refer is that of a trespasser. The appellant, in his present suit: has contended that the respondents are trespassers. A •'trespasser" has heen defined hy s. 5(44) of the Act as meaning a person who takes or retains possession of unoccupied land without authority or who prevents another person from occupying land duly let out to him. That is how the definition read at the material time. It is plain that the respondents do not fall within the definition of "trespasser" as prescribed by this clause.

\'. .

\ •

' '1 •'

Let us now refer to s. 15 as it stood at the relevant time. Section 15 provides, inter alia, that subject to the provisions of s.16 every person who, at the commencement of this Act, is a tenant of land, shall, subject to the provisions of this Act and subject further to any contract not contrary to s. 4 be entitled to all the right conferred and be subject to all the liabilities imposed on Khatedar tenants under the Act. In other words, as soon ass. 15 came into operation on October 15, 1955, the .Possession of the respondents, who had been inducted into the Jana by the mortgagee was substantially altered and they became Khatedars by virtue of the statutory provisions prescribed by s.15. 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 provisions ox 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 possessjon thereafter. That pica 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 thats. 183of 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.

Mr. Misra, however, contends that there are two decisions of this.

Court which support his case that tenants introduced by the mortgagee during the continuanOe 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 appellant's claim for ejecting the respondents in the present case.

In_ Mahabir Gape and Others v. Harbans Narain Singh and Others(!), 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 enure beyond the termination of his interest as mortgagee. In consequence any lease granted by a morgagee 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 mortgagor's interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the fields thereby defeating the mortgagor's right to khas possession; such an act would fall within the provisions of s. 76, subclause (e) of the Transfer of Property Act. It is on these observations that Mr. Misra founds his argument.

(1) (1952] s.c.R. 775: A.LR. 1952 s.c. 205.

I '

• j

A 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 appellant's writ petition filed before it. The appeal therefore fails and is dismissed with costs. Costs in favour of B respondent No. 1.

Appeal dismissed.