Prabhu Vs. Ramdev & Ors  INSC
57 (28 February 1966)
28/02/1966 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 1721 1966 SCR (3) 676
CITATOR INFO :
RF 1976 SC1830 (18,20) R 1980 SC 696 (11) RF
1981 SC1881 (17) RF 1987 SC2146 (8,11,14) RF 1989 SC 436 (39,42,43)
Transfer of Property Act (4 of 1882), s.
76(e)-Tenants inducted by mortgagee When can continue in possession after
termination of mortgage.
The appellant's father created a usufructuary
mortgage of the land in dispute and the mortgagee admitted the respondents as
tenants. During the continuance of the mortgage and while the respondents were
in possession as tenants, the Rajasthan Tenancy Act, 1955, came into force.
The mortgage was eventually redeemed but the
respondents continued 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
possession 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 grounds available to the appellant had been proved. The High Court
dismissed the writ petition of the appellant challenging the Board's decision.
In appeal to this Court, on the question
whether the respondents could be ejected on the ground that the mortgage had
been redeemed, 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 precisely what had happened in the present case. During the
continuance of the mortgage, s. 15 of Rajasthan Tenancy Act came into operation
and that made the respondents Khatedars who are entitled to claim the benefit
of s. 161 of that Act. [680 A-D] Mahabir Gope v. Harbans Narain Singh, 1
S.C.R. 775, explained.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 323 of 1963.
Appeal by special leave from the judgment and
order dated October 20, 1961 of the Rajasthan High Court in D. B. Civil Writ
No. 41 of 1959.
B. C. Misra and M. V. Goswami, for the
S. C. Agarwal, for respondent No. 1.
R. N. Sachthey, for respondents Nos. 4 and 5.
The judgment of the Court was delivered by
Gajendragadkar, C. J. The appellant Prabhu is the owner of agricultural land
bearing Khasra Nos. 224, 215, 244, 299, 320, 506, 677 617 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 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 Ramdey, 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 SubDivisional 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. 1. Whether the respondents are
trespassers in respect of the fields and are liable for ejectment; and No. 2.
to what relief, if any, the appellant is entitled to ? He found that the
,respondents were not trespassers as alleged by the appellant and as such the
appellant was not entitled to any relief. In the result, the appellant's suit
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
The Board has held that by virtue of the
provisions of s. 15 of the Act, the possession of the respondents was
unassailable and they could 678 be ejected only in accordance with the relevant
section of the said Act. Since none of the grounds available to the appellant
under the Act had been proved, he was not entitled to a claim for ejectment.
The validity of the Board's decision was
challenged by the appellant by moving the Rajasthan High Court in its writ
jurisdiction under Art. 226 of the Constitution. It was urged by the appellant
before the High Court that the order passed by the Board was plainly erroneous
in law 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 fight of which the
question of law raised before us by Mr. Misra on behalf of the appellant has to
be considered, are 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
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 by s.
5(43) of the Act as meaning a person by whom rent is or but for a contract,
express or implied, would be payable and except when the contrary intention
appears, shall include a cotenant or a grove holder or a village servant 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 the kadar 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 by him in respect of the land. That test is
clearly satisfied by the three respondents in the present case.
The next definition to which it is necessary
to refer is that of a trespasser. The appellant, in his present suit, has
contended that the respondents are trespassers. A "trespasser" has
been defined by 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.
679 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 as s. 1.5 came into operation on October
15, 1955, the possession of the respondents, who had been inducted into the
land by the mortgagee was substantially altered and they became Khatedars by
virtue of the statutory provisions prescribed by s. 1 5. 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. 1 5 and cannot be ejected except under the provisions 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.
Mr. Misra, however, contends that there are
two decisions of this Court which support his case that tenants introduced by
the mort-gagee 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 appellant's claim for
ejecting the respondents in the present case. In Mahabir Gope and Others v.
Harbans Narain Singh and Others(1), 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) 11952] S.C.R. 775: A.I.R. 1952 S.C. 205.
680 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 co erred or readed by statute based on the nature of
the land and possession for the requisite period, its 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.
The other decision on which Mr. Misra relies
is Harihar Prasad Singh &Another v. Must. of Munshi Nath Prasad &
Others. (1) In that case it was held that the persons inducted by mortgagees
could 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 a raiyat, in that case it became necessary to consider
whether they held the land under a proprietor or under a tenureholder, 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 turns 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.
(1)  S.C.,R. 1 681 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 respondent No. 1.