Bhagat Ram and Another vs Asha and Others

T.R. Honda, J.—The appellants were the contesting Defendants and Respondent No. 1 was the Plaintiff in the suit which has given rise to this Regular Second Appeal. The suit had been instituted by the Plaintiff to claim possession of a specified area of agricultural land on the basis of his title. Shri Bengali who had been impleaded as Respondent No. 2 in this appeal and who after his death is now represented by his legal representatives, had been impleaded as a proforma Defendant in the suit. The trial Court decreed the suit of the Plaintiff and that decree was affirmed on appeal by the District Judge. The contesting Defendants have now approached this Court in second appeal.

The material facts which are not in dispute at this stage may be briefly stated thus:

The Plaintiff was the owner of the suit land which measures 20 Kanals 4 Marias and is situate in Tikka Thamba. Mauja Ghiana Kalan, Tehsil Kangra. It comprises of khasra Nos. 398, 654, 655 and 783 as per Jamabandi for the year 1965-66. The corresponding old khasra Nos. of this land were 718/330, 719/330, 536, 537 and 649. In or about the year 1950 the Plaintiff created a usufructuary mortgage in respect of this land in favour of prpforma Respondent/defendant, Shri Bengali, for a consideration of Rs. 3100/-. The contesting Defendants were recorded in cultivating possession of this land as non-occupancy tenants under Bengali mortgagee right from the year 1952 and these entries persisted in all the Jamabandis prepared after the creation of the mortgage in favour of Bengali.

In the year 1968 the Plaintiff took out proceedings before the Collector Kangra for redeeming the mortgage created in favour of Benagh. In those proceedings the Collector made an order on 25-6-1968 directing redemption of the mortgage in favour of the Plaintiff on payment of the mortgage money amounting to Rs. 3100/-. The Plaintiff deposited the mortgage amount and obtained warrants of possession from the Collector to secure actual possession of the redeemed land, that is, the suit land. In the course of execution of such warrants he was confronted by the contesting Defendants (the present appellants) who were found in actual cultivating possession of the land and who refused to part with their possession on the plea that they were lawful tenants of the suit land. It was faced with this situation that the Plaintiff had to file his suit referred to above.

The main plea of the contesting Defendants in resisting the suit was that they were non-occupancy tenants of the suit land under the Plaintiff and hence a suit for possession could not lie in civil court. The Defendants had in fact pleaded their tenancy since before the creation of the usufructuary mortgage created in favour of Bengali. The other pleas raised by the Defendants in their written statement need not be adverted to as the same are not pressed at this stage.

Both the courts below negatived the plea of the Defendants that they had been coming in possession of the suit land as non-occupancy tenants under the Plaintiff since before the creation of the mortgage in favour of Bengali. As per concurrent findings of the courts* below the Defendants had been inducted as tenants in the suit land by Bengali mortgagee some time in 1952 after the creation of the mortgage and this tenancy created in favour of the Defendants by Bengali mortgagee came to an end with the redemption of the mortgage in 1968. It was on these findings that the suit of the Plaintiff was decreed by the courts below.

An argument was advanced before the trial Court as also before the first appellate Court that even if it be taken that the Defendants had been inducted as tenants by the mortgagee, the tenancy was binding on the Plaintiff as the creation thereof was an act of prudent management of the part of Bengali mortgagee. The Defendants, however, were not allowed to advance this argument on the ground that it was beyond the pleadings.

This appeal came up for hearing before a learned single Judge of this Court on March 31, 1977, when a contention appears to have been raised on behalf of the appellants that even in the face of the findings of the courts below, the tenancy created in their favour by the mortgagee was protected under the provisions of the Punjab Security of Land Tenures Act, 1953, which came into force on 15-4-1953 during the subsistence of the mortgage and after the creation of the tenancy in favour of the appellants. The appellants further claimed protection under the provisions of the Himachal Pradesh Tenancy and Land Reforms Act which came into force during the pendency of the suit. These conten tions were controverted on behlaf of the plaintiff-Respondent. The learned single Judge was of the view that the proper clue as to the rights of the parties could be provided by the answer to the question whether the creation of tenancy by Bengali mortgagee in favour of the present appellants in the year 1952 was bona fide and was an act of prudent management on the part of the mortgagee so as to bind the mortgagor. The learned single Judge was further of the view that the pleadings contained a specific controversy between the parties on this point but no specific issue had been framed in respect of that controversy not was any finding returned by either of the two courts in respect thereof. The learned single Judge, therefore, framed the following two additional issues and called for the report of the trial Court thereon:

Whether the lease in favour of the present appellants which is said to have been created by the mortgagee in the year 1952 was bona vide and whether that transaction was such as a prudent man would enter into in management of the mortgaged land ?

If so, whether the present appellants have obtained the status of the tenants under the provisions of the Punjab Security of Land Tenures Act and then under the Himachal Pradesh Tenancy and Land Reforms Act ?

The report of the trial Court on the additional issues stated above has since been received. As per this report, the creation of tenancy in favour of the contesting Defendants was neither bona fide nor an act of prudent management on the part of Shri Bengali mortgagee and the contesting Defendants never attained the status of a �tenant� either under the Punjab Security of Land Tenures Act or the Himachal Pradesh Tenancy and Land Reforms Act.

Shri Chhabil Dass, the learned Counsel appearing for the appellants has very vehemently challenged the correctness of this report. He described the same as totally perverse. After carrying me through the relevant evidence, both oral and documentary as found on the record, the learned Counsel explained how a part of the material evidence relevant on the point had been totally ignored while an other material part had been completely mis-appreciated by the trial Court while returning its finding on additional issue No. 1. As regards additional issue No. 2, the learned Counsel pointed out that the trial Court neither discussed nor applied its mind to the relevant provisions of the Punjab Security of Land Tenures Act and the Himacal Pradesh Tenancy and Land Reforms Act and answered this issue against the contesting Defendants in rather a whimsical manner.

Shri Nag, the learned Counsel appearing for the opposite side, made an equal effort to defend the decree of the Court below. Relying upon the general rule that a person cannot by transfer or otherwise confer a better title on Anr. than he himself has, Shri Nag contended that the mortgagee in the instant case could not create interest in the mortgaged property in favour of the contesting Defendants which could enure beyond the termination of his own interest as mortgagee. The status of the contesting Defendants after redemption of the mortgage, therefore, according to Shri Nag, is no better than that of a trespasser. Nor could the contesting Defendants in the circumstances of this case, acquire the status of a tenant under the provisions of either of the two acts, namely, the Punjab Security of Land Tenure Act and Himachal Pradesh Tenancy and Land Reforms Act.

The first question that arises for consideration for the disposal of this apeal is whether the act of Shri Bengali in inducting or accepting the contesting Defendants as non-occupancy tenants in the suit land was an act of prudent management on his part. A look into the past history of the suit land would help in appreciating the rival contentions of the parties on this point. We find that as per Jamabandi for the year 1940-41 the suit land was owned by Shri Tikku, the father of the Plaintiff (see Ex. P-5). Tikku sold this land to the contesting Defendants for a sum of Rs. 2000/-on 2-8-1943. Mutation No. 219 Ex. D-5 was sanctioned in favour of the contesting Defendants on the basis of that sale. This mutation was entered on 12-8-1943 and sanctioned on 31-10-1943. The Plaintiff then pre-empted the sale made by his father Tikku in favour of contesting Defendants wherein he succeded. As a result of the pre-emption decree obtained by the Plaintiff against the contesting Defendants, the mutation of the suit land was sanctioned in favour of the Plaintiff on 16-2-1950. This is apparent from a perusal of mutation No. 253 found at Ex. D-5 which was entered on 18-6-1945 though sanctioned on 16-2-1950. (mutation No. 219 referred to aboveand mutation No. 253 have both been exhibited as Ex. D-5). It appears that soon after the Plaintiff obtained the decree in his pre-emption suit, he vide registered mortgage deed dated 31-5-1945 mortgaged the suit land for Rs. 3100/- with Shri Bengali, the proforma defendant. Mutation in respect of this mortgage, being mutation No. 254 found at Ex. D-7 was also entered on 18-6-1945, the day on which mutation No. 253 was entered in favour of the Plaintiff as a result of the pre-emption decree obtained by him. This mutation on the basis of the mortage in favour of Bengali was also sanctioned on 16-2-1950. The delay in the sanction of these two mutations which were entered in 1945 and sanctioned on 16-2-1950 was on account of some misdecription of the land while entering the mutations. The mortgage in favour of Bengali was thus actually effected in 1945 by means of a registered deed though the mutation following it was sanctioned only in 1950. This mortgage created in favour of Bengali was later redeemed in 1968. This history with respect to the ownership of the suit land is no longer in dispute between the parties.

Now coming to the history of possession of the suit land the Jamabandi for the year 1940-41 Ex. P-5 reveals that Shri Tikku, the father of the Plaintiff, was not in possession on any part of this land. A part of this land measuring 11 Kanals comprised in Khasra Nos. 718/330 and 719/330 had been mortgaged by him with one Lehanu who had created a sub-mortgage in favour of one Prabhu. The contesting Defendants have recorded in actual possession of this part of the suit land as non-occupany tenant under Prabhu in 1940-41. The remaining suit land comprised in Khasra Nos. 649, 536 and 537 measuring 9 Kanals 4 Marias had been mortgaged by Shri Tikku in favour of one Gurdas to the extent of 2/3rd share and in favour of the contesting Defendants to the extent of l/3rd share. Out of this part of the suit land, Khasra No. 649 had been recorded in cultivating possession of the mortgagees, that is, Gurdas and the contesting Defendants, while the other Khasra Nos. 536 and 537 had been shown in exclusive possession of the contesting Defendants in their capacity of mortgagees and non-cccupancy tenants under Gurdas mortgagee. The contesting Defendants were thus in actual cultivating possession of practically the whole of the suit land in 1940-41 immediately prior to the sale made in their favour by the previous owner, Shri Tikku, the father of the Plaintiff and which sale, as earlier stated, had been successfully pre-empted by the plaintiff. There is no material on the record to show if the possession of the Defendants as recorded in the Jamabandi for the year 1940-41 was ever disturbed. On the other hand the entries in mutation No. 219 of 1943 (Ex. D-5) and mutation No. 253 and 254 of 1945 (Ex. D-5 and Ex. D-7) referred to above suggest that in so far as the enteries in the column of possession are concerned, they continued to remain as before suggesting thereby that the possession of the contesting Defendants remained intact. Otherwise also the general presumption is that the possession once proved, is to be understood as continuous until the contrary is established. The version of Shri Bengali (Mortgagee) who was examined on comission as a witness on behalf of the contesting Defendants is also to the same effect. According to Bengali, the contesting Defendants were already in possession of the suit land at the time of creation of mortgage in his favour and they continued to cultivate that land even after the mortgage and had been paying Batai rent to him.

In view of the entries existing in the revenue record as discussed above which find full support from the oral testimony of Shri Bengali, mortgagee, there appears to be no escape from the conculsion that at the time of creation of the mortgage under reference the mortgagee was never put in actual physical possession of the suit land which was then under the cultivating possesion of the contesting Defendants. Tt would also be pertinent to notice in this connection that as per version given by Shri Bengali while in the witness box, it was not feasible for him to cultivate the suit land personally. He advanced two reasons in support of his inability to personally cultivate the land. The first reason was that he was suffering from gout and the second was that the land in suit was situate at a distance of about 2 or 2 � miles from his village. In the absence of any rebuttal, this part of his testimony must be accepted. The trial Court was of the view that Bangali shuold have got the suit land cultivated from his sons. Now Bangali had admittedly two sons. One of them was employed at Pathankot and, therefore, naturally could not be available for cultivating the suit land. The other was doing tailoring job and also looking after Bangali�s own land located in his village. He too, therefore, was not in a position to cultivate the suit land. In any case he was under no obligation to do so especially when the suit land was located in a different village. This view of the trial Court is thus not tenable.

Another factor which cannot be overlooked and needs to be pointed out for the purposes of the issue under consideration is that the rent which Bangali accepted from the contesting Defendants for the suit land and as reflected in the Jamabandis pertaining to the period 1952-53 onward was quite substantial. It was one half of the total produce of the suit land. Earlier also prior to the creation of the mortgage in favour of Bangali, the rent was the same. This is apparent from the entries found in the Jamabandi for the year 1940-41. Converted in terms of money according to the price index of 1955-56 this rent would mean Rs. 483.46 paisa per annum. This is obvious from a mere look at the statement of produce Ex. PWI/A which was got prepared and proved by the Plaintiff himself. This rent was thus equivalent to more than 15% return to the mortgagee on the amount of mortgage advanced by him which as earlier stated was only Rs. 3100/-.

Judicial notice can also be taken of the fact that in the year 1945 when the mortgage was created in favour of Bangali, there existed no legislation which conferred any special rights on or provided any special protection to the non-occupancy tenants against their ejectment who in those pre-independence days could be easily ejected.

Now it may not be disputed that in the situation explained above, Shri Bangali had only two options. The first was to accept the contesting Defendants as tenants on payment of the customary rent and the second was to initiate legal proceedings to seek their ouster from the suit land. (For this purpose I am assuming as found by the courts below that Bangali had not been inducted as a non-occupancy tenant in this land by the plantiff mortgagor and that he was in unlawful possession of that land at the time of creation of mortgage in favour of Bangali). In the case of his success in the latter course, the mortgagee was further re quired to make arrangements for cultivation of the suit land or else it would have gone waste. He could have done so either by putting it under his self cultivation which, as observed earlier, he was not capable of doing or by inducting fresh tenants. Any prudent persons placed in the situation and circumstances in which. Bangali was placed, must in my view have exercised the former option. In case, therefore, Bangali did so, his act cannot be called except as an act of prudent management on his part. I, therefore, find it extremely difficult to subscribe to the view expressed by the Court below that Bangali�s act in inducting the contesting Defendants as tenants on the mortgaged land was not bona fide or that it was not an act of prudent management on his part.

Now once it is found that the settlement of the contesting Defendants as tenants by Bangali mortgagee was bona fide and an act of prudent management on his part, there would be no difficulty in answeing the second additional issue as framed by this Court in favour of the contesting Defendants.

It is true that as per general rule governing the relationship between mortgagor and mortgagee, a mortgagee cannot create an interest in the mortgaged property which shall enure beyond the termination of his interest as mortgagee. There is, however, an exception to this general rule. This exception was carved out in the following language by the Supreme Court in the case of Mahabir Gope and Others Vs. Harbans Narain Singh and Others, which was later approved in the case of Prabhu Vs. Ramdev and Others,

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 is a different matter altogether. It is an exception to the general rule. In such a case the tenant cannot be ejected by the mortgagor even after the redemption of the mortgage. He may become an occupancy raiyat in soms cases and a non-occupancy raiyat in other cases. But the settlement of the tenant by the mortgagee must have been a bona fide one.

Now in the instant case it is an admitted position that during the subsistence of the mortgage created by the Plaintiff in favour of Bangali and sometime after the contesting Defendants had been settled on the suit land as non-occupancy tenants by Bangali mortgagee, the Punjab Security of Land Tenures Act, 1953, (Punjab Act No. X of 1953), hereinafter called �the Security Act�, was brought on the statute book. This Act came into force with effect from 15th April, 1953. Section 9 of this Act provided statutory protection to all the tenants against their ejectment. After the enforcement of this Act no land owner was competent to eject a tenant except in accordance with the provisions of Section 9 of this Act which reads thus:

Liability of tenant to be ejected.-(1) Notwithstanding anything contained in any other law for the time being in force, no land owner shall be competent to eject a tenant except when such tenant:

(i) is a tenant of the area reserved under this Act or is a tenant of a small land owner; or

(ii) fails to pay rent regularly without sufficient cause; or

(iii) is in arrears of rent at the commencement of this Act; or

(iv) has failed, or fails, without sufficient cause, to cultivate the land comprised in his tenancy in the manner or to the extent customary in the locality in which the land is situate; or

(v) has used, or uses the land comprised in his tenancy in a manner which has rendered, or renders it unfit for the purpose for which he holds it; or

(vi) has sublet the tenancy or a part thereof; provided that where only a part of the tenancy has been sublet, the tenant shall be liable to be ejected only from such part; or

(vii) refuses to execute a Qabuliyat or a Patta, in the form prescribed, in respect of his tenancy on being called upon to do so by an Assistnat Collector on an application made to him for this purpose by the landowner;

Explanation.-For the purposes of clause (iii), a tenent shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to pay such arrears of rent.

(2) Notwithstanding anything contained hereinbefore a tenant shall also be liable to be ejected from any area which he holds in any capacity whatever in excess of the permissible area :

Provided that the portion of the tenancy from which such tenant can be ejected shall be determined at his option only if the area of his tenancy under the landowner concerned is in excess of the area from which he can be ejected by the said land-owner :

Provided further that if the tenant holds land of several land-owners and more than one land-owner seek his ejectment, the right of ejectment shall be exercised in the order in which the applications have been made or suits have been filed by the land-owners concerned, and in case of simultaneous applications or suits the priority for ejectment shall commence serially from the smallest land-owner.

Explanation.-Where a tenant holds land jointly with other tenants, only his share in the joint tenancy shall be taken into account in computing the area held by him.

The contesting Defendants have claimed protection of the above provision to defeat the claim of the Plaintiff for possession of the suit land. Prima facie there appear to be every force in their plea.

The only argument that could be advanced on behalf of the Plaintiff by his learned Counsel, Shri Nag, to refute the shelter c�aimed by the contesting Defendants u/s 9 of the Security Act was that the contesting Defendants could not be called �tenants� �within the contemplation� of the Security Act and hence were not entitled to the protection afforded by Section 9 extracted above. According to Shri Nag, the tenants of the mortgagee are not included in the definition of �tenant� as found in the Security Act and the contesting Defendants having admittedly been settled by the mortgagee, they were not covered by this definition. In support of his contention Shri Nag relied upon two decisions of the Punjab & Haryana High Court. They are Dalip Singh Hazara Singh v. Financial Commissioner and the Secretary to the Government of Punjab and Ors. reported in AIR 1964 P&H 369 and Charan Singh Vs. Jagir Singh and Others,

The reasonings advanced by Shri Nag does find support from the above noted two decisions of the Punjab and Haryana High Court. With all respect to the learued Judges of the Punjab & Haryana High Court I, however, feel it extremely difficult to subscribe to the view expressed by them that the tenant of a mortgagee is not covered by the definition of �tenant� given in the Security Act. The expression �tenant� has been defined in Section 2(6) of the Security Act like this:

(6) �Tenant� has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Act XVI of 1887) and includes a sub-tenant and self-cultivating lessee, but shall not include a present holder, as defined in Section 2 of the Resettlement Act.

23A. The Security Act thus incorporates within itself the definition of the expression �tenant� as given in the Punjab Tenancy Act, 1887. The meaning assigned to the word �tenant� in the Punjab Tenancy Act is in the following terms:

(5) �tenant� means a person who holds land under Anr. person, and is, or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include:

(a) an inferior land-owner; or

(b) a mortgagee of the rights of a landowner, or

(c) a person to whom a holding has been trans:

ferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or

(d) a person who takes from the Government

a lease of unoccupied land for the purpose of sub-letting it.

In the case of Dalip Singh Hazara Singh v. Financial Commissioner, the learned Judge after extracting the above defi nition of tenant proceeded to observe :

The crux of the definition is that the person who claims to be a tenant must be holding land under Anr. person and is liable to pay rent for that land to that other person, in the present case the petitioner was neither holding land under the mortgagor nor was liable to pay rent to the mortgagor. That being so he cannot be held to be a tenant under the mortgagor.

These observations of the learned judge presume that in order to fall within the definition of a tenant, a person must hold land under the mortgagor. Such presumption, however, cannot be spelled out from the language of the definition extracted above. Similarly, in the case of Charan Singh (supra), the learned Judge after extracting the definition of tenant from the Punjab Tenancy Act expressed himself in these words:

From a perusal of the provisions of law quoted above it is clear that the tenant of a mortgagee with possession nowhere figures. Besides, the exclusion of a mortgagee of the rights of a landowner from the definition of �tenant� in Section 4(5) of the Punjab Tenancy Act, 1887, leads to the conclusion that a �tenant� of a mortgagee could never be intended to be included in the term �tenant�.

It is true that the �tenant� of a mortgagee with possession does not specifically figure in the definition reproduced above. But at the same time he is not ousted from the purview of the definition which only requires that a person should hold land under Anr. person. A bare reading of this definition would show that a person shall be deemed to be a �tenant� in respect of a particular land for the purposes of the Security Act if:

(i) he holds that land;

(ii) he holds that land under Anr. person;

(iii) he is, or but for a special contract would be, liable to pay rent for that land to that other person; and

(iv) he does not fall in any of the four categories of persons as enumerated in clauses (a), (b), (c) and (d) of the,definition.

25A. In terms of Section 9 of the Security Act reproduced earlier a landowner is not competent to eject a person answering above definition of a �tenant� except in accordance with the provisions of that section.

Now in the instant case Bangali being a mortgagee with possession was during the subsistence of the mortgage, the lan downer vis-a-vis the suit land. It may be observed that in terms of the explanation appended below the definition of landowner as found in Section 2(1) of the Security Act, in respect of land mortgaged with possession, the mortgage is deemed to be the landowner. The contesting Defendants were holding this land under Bangali landowner and were liable to pay rent to him for this land. They did not fall under any of the four exceptions me-tioned in clauses (a) (b), (c) and (d) of the definition as they were neither inferior landowners nor mortgagees of the rights of a landowner, nor transferees of the suit land under the Punjab Land Revenue Act for the recovery of arrears of land revenue, nor lessees from the Government for the purposes of sub letting. They were thus tenants under Bangali landowner in respect of the suit land. After the redemption of the mortgage they became tenants of the Plaintiff who succeeded to Bangali as landowner.

I thus find that the contesting Defendants were in posses sion of the suit land as tenants under the Plaintiff and they, therefore, could not be ejected except in accordance with the provisions of Section 9 of the Security Act.

In view of the above discussion, I allow this appeal, set-aside the judgments and decrees of the courts below and dismiss the suit of the plaintiff-Respondent. The parties are, however, left to bear their own costs throughout.