Ameenuddin vs Mohammad Khader Ali

Qamar Hasan, J.—In the course of the execution of a final decree for redemption, the Petitioner Syed Aminuddin intervened with an objection that he being in occupancy of the mortgaged house as a tenant of the usufructuary mortgagee, was not liable to be evicted unless and until the procedure embodied in the Hyderabad Rent Control Order was adopted and an order for eviction obtained from the Rent Controller.

The learned Fourth Judge of the City Civil Court has by his order of 28-9-1951, over ruled the contention. The objector has now come up before us in revision.

To dispose of the contention raised by the Petitioner the first point to be determined is what is the position of a tenant inducted into the mortgaged property by the usufructuary mortgagee vis-a-vis the mortgagor, who has obtained a final decree in a redemption 1953 Hyd./17 & 18 suit under the relevant provisions of the Hyderabad CPC corresponding to the provisions contained in Rule 8 of Order 34, Code of Civil Procedure.

it has been held by the Supreme Court in the case of - Mahabir Gope and Others Vs. Harbans Narain Singh and Others, , that the general rule is that a person cannot by transfer or otherwise, confer a better title on another than he himself has and therefore a mortgagee cannot create an interest in the mortgaged property which will ensure beyond the termination of his interest as mortgagee. It follows that he may grant leases not extending beyond the period of a mortgage; any lease granted by him 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 interest such as giving t a lease which may enable the tenant to acquire occupancy rights in the land thereby, defeating the mortgagor''s right to khas possession.

In this view of the law it can safely be postulated that the Petitioner''s interest in the disputed house came to an end after the termination of the mortgagee''s interest by reason of redemption. Order 34, Rule 8, Code of Civil Procedure. ''interalia'' provides that on payment into Court of the amounts due from the mortgagor, the Court may in the final decree, if necessary order the mortgagee to put the mortgagor in possession of the property redeemed. If the property is in possession of the mortgagee, there is no dispute that the mortgagor can be put in actual possession of the property under Order 21, Rule 35(1), Code of Civil Procedure. by removing any person bound by the decree who refuses to vacate the property. In case the property is in the occupancy of a tenant or other persons en titled to occupy the same, Order 21, Rule 36 makes provision for symbolical possession to be delivered to the decree-holder. In order to be able to take advantage of the provision of this rule the Petitioner will have to show that he is entitled to continue in occupation of the house despite the fact that the mortgagor has secured a right to its possession. Under CI. (c) of Section 111, Transfer of Property Act, the lease determines by the termination of the lessor''s interest. Thus, the Petitioner cannot claim to be a tenant within the meaning of Order 21, R. 36, Code of Civil Procedure, or a person entitled to occupy the property in dispute. But the learned advocate for the Petitioner relying on Section 8, Hyderabad Rent Control Order 1353F argued that what ever may be the position of the Petitioner under the Transfer of Property Act or the Code of Civil Procedure, he could not be evicted without an order of the Controller to that effect.

''Now Section 8(1) of the Order enacts that:

A tenant in possession of a building shall not be evicted therefrom whether in execution of a decree or otherwise and whether be fore or after the promulgation of this Order except in accordance with the provisions of this Section .

Then CI. (2) of Section 8 directs that a landlord who seeks to evict a tenant shall apply'' to the Controller for a direction in that behalf. It would thus appear that in order to attract the provisions of this Section there should exist the relationship of landlord and tenant i.e., there should be a privity of contract between the parties. The Rent Control Order has defined the expression ''landlord'' exhaustively; but has omitted to define the word (SIC)ant.''" The absence of definition rules. idea of statutory. tenant leaving the (SIC)exssion to its ordinary significance under the Transfer of Property Act.

In this view of the matter I find no (SIC)case in this revision, and I refuse to inter (SIC)with the order passed by the learned (SIC) Judge City Civil Court. The rule is charged with no order to costs.