Buta and Another vs Kaka and Others

J.N. Bhat, J.—In this case, which was instituted in the Court of Munsiff R.S. Pora and decreed by him as well as by the District Judge,

Jammu by means of their orders dated 31-5-1965 and 30-11-1966 respectively this second appeal was preferred in this Court, which was

decided by his Lordship, the Hon'ble Chief Justice Wazir on 3rd of March 1967. His Lordship was pleased to remit two issues to the trial court

and these issues ran as under:

(1) Whether Defendants Nos. 6 and 7 were in cultivating possession of the land since 1955 and had acquired the status of protected tenants?

OPD

(2) If the above issue is decided in favour of the Defendants, whether their rights of protected tenants will cease under proviso 2 to Section 15A of

the Tenancy Act and they will be liable to be dispossessed.

The trial court then recorded some evidence and made a report against the Appellants. The District Judge sent the record of this case to this Court

without making any comment on the report of the trial court. Later his Lordship, Chief Justice Wazir again on 29-11-1967 directed the District

Judge to record his finding on the report of the Munsiff. The District Judge ultimately by his order dated 10-1-1968 concurred with the finding of

the trial court. The case was again sent to this Court and has been placed before me.

I have heard the arguments of the learned Counsel for the parties. Mr. G.L. Gupta, the learned Counsel for the Appellant-tenants argues that the

Appellants are protected tenants of this land and they cannot be elected from this land. All that can be held in favour of the mortgagors is that a

decree for redemption of mortgaged property can be passed in their favour. The Appellants shall be tenants under them. They are prepared to pay

the share of the produce which they are bound to pay under law to the mortgagors. They cannot be physically ejected from this land. On the other

hand it is argued that the mortgagors were in possession of this land when they mortgaged it with the mortgagees on 12-5-1972. The mortgagees

remained in possession and they may have inducted the Appellants as tenants. As soon as a decree for redemption of mortgage is passed against

them, the rights of the tenants also come to an end. Reliance is placed by the learned Counsel for the Respondent on Section 15A of the Tenancy

Act. Section 15A defines what a protected tenant is. But the second proviso to this section says:

Provided further that the right of protected tenancy of a tenant holding under a lessee or a mortgagee, shall also cease on the expiry of the lease or

mortgage, as the case may be, if the lessor or the mortgagor was in self-cultivating occupation of such land immediately before such land was

leased or mortgaged and such land including the other land in his personal cultivation does not exceed the size of the holding specified for a

landlord in Clause (a) of Section 45 of the Act.

According to the learned Counsel for the Respondents the mortgagor was himself in cultivating possession of this land when it was mortgaged with

the mortgagees. For this he relied upon the concurrent finding of the fact of two lower courts and argued that that finding was conclusive and could

not be re-opened. Apart from that he argued that there was overwhelming evidence to show that the mortgagor Haku was in possession of the

land when he mortgaged it on 12-5-1973 with Nathu and Vadawashah. In this mortgage deed the land is described as being the proprietary land

of the mortgagor as well as in his possession. It further recites that the possession of the land was handed over to the mortgagees and they were at

liberty either to till it themselves or through other persons. This recitation is proved to be correct and further it is proved from the evidence in this

case that the possession of this land remained with the mortgagor till 4th Sawan 1985. These are the findings of fact (based on cogent evidence) of

the two lower courts. Therefore clearly on the day of the mortgage in 1972 the land was m cultivating possession of the mortgagor. Mr. G.L.

Gupta has however tried to distinguish between possession and cultivating possession. The land mortgaged is an agricultural land. Therefore

possession of this land would mean nothing but cultivating possession. It is not a vacant piece of land which could be symbolically also possessed.

Therefore there is not much force in the argument of the learned Counsel for the Appellants on this point.

Under second proviso to Section 15A of the Tenancy Act, the Appellants have lost their right of protected tenants as soon as the mortgage

stands redeemed. The decree passed by both the courts below is therefore perfectly correct and is based on a correct interpretation and

application of law. Mr. G.L. Gupta however referred me to two authorities namely Dahya Lal and Others Vs. Rasul Mohammed Abdul Rahim,

and Prabhu Vs. Ramdev and Others, , But a bare perusal of those authorities would clearly indicate that these cases have no application to the

facts of the present case. In the first authority Dahya Lal and Others Vs. Rasul Mohammed Abdul Rahim, defines the word 'tenant' as ""an

agriculturist who holds land on lease and includes a person who is deemed to be tenant under the provisions of this Act"". Their Lordships have laid

down:

The Act seeks to encompass within its beneficent provisions not only tenants who held land for purpose of cultivation under contracts from owners

but persons who are deemed to be tenants also. A person claiming the status of a deemed tenant need not have been cultivating land with the

consent or under the authority of the owner. The relevant condition imposed by the statute is only that the person claiming the status of a deemed

tenant must be cultivating land lawfully. All persons other than those mentioned in Clauses (a), (b) and (c) of Section 4 who lawfully cultivate land

belonging to other persons whether or not their authority is derived directly from the owners of the land must be deemed tenants of the lands. A

tenant inducted on the land by the mortgagee in possession is such a tenant.

Their Lordships at the same time remarked that the tenant who had been inducted by the mortgagee in possession would ordinarily be liable to

ejectment on the extinction of the mortgage.

Similarly in Prabhu Vs. Ramdev and Others, their Lordships laid down that those people who had been inducted as tenants into the agricultural

land by the mortgagee had become entitled to rights of Khatedar by virtue of Section 15 of the Rajasthan Tenancy Act (3 of 1855) and therefore

they could be ejected. In this way the rights of tenants under the Transfer of Property Act stood improved under the particular terms and language

of that Act.

Therefore neither of these authorities helps Mr. G.L. Gupta's case. On the other hand there is an authority of the Punjab High Court reported as

AIR 1964 Punj 369 which again is based on a Supreme Court authority Mahabir Gope and Others Vs. Harbans Narain Singh and Others, . The

general rule is that a person cannot transfer a better right than he himself possesses. 'A' becomes a mortgagee and enters upon some land. He

inducts the tenant on this land. When his mortgage is redeemed, the right of the tenant comes to an end because the mortgagee cannot create an

encumbrance on the land which he held under the mortgage. During the term of his mortgage he can utilise the property as a prudent man will enjoy

his own property. He can let it out and induct tenants also upon the same. But orlce the mortgage is redeemed, the rights of all, holding under the

mortgagee in any form ipso facto come to an end.

In the Punjab authority it was held that a tenant of a mortgagee ceases to be so on the redemption of the mortgage unless the tenant's case

comes under any exceptions. In this State the difficulty was envisaged by the Legislature and therefore they put a proviso u/s 15A of the Tenancy

Act. This proviso saves the mortgagor's rights to eject a tenant even if he be a protected tenant from the mortgage property on its redemption if at

the time of executing the mortgage deed, the mortgagor was in personal cultivating possession of the land. In this case it has been held proved by

both the courts below and on very cogent evidence that the land was in personal cultivation of the mortgagor at the time it was mortgaged. It is

further proved that the mortgagor has no other land except the one, which is the subject matter of this suit. Therefore he is fully protected under the

provisions of Section 45A (Sic 15A) of the Tenancy Act. The mortgagor is therefore entitled to the decree which has been passed in his favour.

Another argument of Mr. G.L. Gupta was that the Appellants were definitely the tenants of this land and even if they were liable to be ejected,

the proper forum was the Revenue Court and not the Civil Court. A suit for ejectment against a tenant would not lie in a Civil Court. This case was

covered by, according to Mr. Gupta, Section 85, first group (d) of the Tenancy Act which says ""Suit by landlord to eject the tenant"". According to

Mr. Gupta, as soon as the to mortgage was extinct, the mortgagor (sic) landlord vis-a-vis the tenant. (sic) pointed tenants-Appellants actually till

the and hold it as tenants under diction to gagee. According to Mr. Gupta on would lationship of landlord and tentent. They into existence between

the mortgagee (sic) the tenants-Appellants. But in my (sic)tion this argument is not well four (sic) for two reasons:

Firstly u/s 15A the protected tenancy of the tenant ceased in this lane as soon as a decree for redemption of the mortgage is passed in favour of the

mortgagor. Therefore when the right of the Appellants in this land ceases, the relationship of tenant and landlord comes to an end. Furthermore the

relationship of a landlord and a tenant is a personal relationship. Section 2(5) of the Tenancy Act defines a tenant as a person who holds land

under the State, or under another person, and is or but for a special contract in that behalf would be, liable to pay rent for that land, to the State or

to that person... Therefore tenancy is a personal relationship between two persons, one of whom is called the landlord and the other tenant. Two

conditions are necessary, the tenancy must exist vis-a-vis particular landlord and the tenant must be liable to pay rent unless there is a special

contract to the contrary and that liability must be vis-a-vis a particular landlord. Here admittedly the tenants-Appellants were never the tenants of

the mortgagor. He had not engaged them in the land as tenants. There was no contract between the mortgagor and the Appellants, nor was there

any contract to pay rent or not rent for this land. Therefore strictly speaking the Appellants were not tenants qua the mortgagors. The deeming

provision as appeared in the Rajasthan and Bombay Acts also is not in the State Tenancy Act.

For these reasons therefore I again repeat that decree of the trial Court affirmed by the lower appellate Court is rightly passed. There is no force

in this appeal, which is dismissed with costs.