Khub Ram and Others vs Bhag Chand and Others

Kuldip Singh, J.—This appeal has been filed by Khub Ram, Goverdhan Lal, both sons of Bhag Chand and Jitu against judgment, decree dated 8.1.2001 passed by learned District Judge, Kullu in C.A. No. 118 of 1999 reversing judgment, decree dated 30.9.1999 passed by learned Senior Sub Judge, Lahaul-Spiti at Kullu, exercising the powers of Sub Judge, Ist Class, Kullu in Civil Suit No. 136 of 1996. The suit was filed by Bhag Chand and Jitu. Bhag Chand died during the pendency of suit and his sons Khub Ram and Goverdhan Lal were brought on record. The suit was decreed by learned trial Court but the learned lower Appellate Court accepted the appeal and dismissed the suit. The parties in the judgment are referred as Plaintiffs and Defendants.

The suit for declaration was filed by Plaintiffs regarding land measuring 1-16-0 bighas comprised in khasra No. 1923 on the averments that the suit land was owned and possessed by Dolu son of Sainu. Dolu vide sale deed dated 28.12.1959 registered on 29.12.1959 sold the suit land along with other land to Bhag Chand and Jitu in equal share. Thereafter the Plaintiffs became owners of the suit land.

Mangat Ram mortgagee died and after his death his mortgagee rights were inherited by Murtu widow, Mohar Chand son and Ritu daughter. The Plaintiffs redeemed the mortgage in the year 1974 by paying mortgage amount of Rs. 400/- to Murtu, Mohar Chand and Ritu, the mutation No. 639 was attested on 5.8.1974 in favour of Plaintiffs. The Plaintiffs came in possession of the suit land as absolute owners.

The Defendants got the mutation No. 724 of tenancy attested on 18.5.1981 in their favour at the back and in the absence of Plaintiffs to grab the suit land. The Defendants also managed to incorporate their names in the revenue records as tenants. The mutation No. 724 has been attested wrongly, illegally and as such is not binding on the Plaintiffs. The Defendants were never inducted as tenants by Plaintiffs nor by Dolu. Shukri and Guhasari were also not inducted as tenants over the suit land.

The Defendants after taking undue advantage of wrong revenue entries in their favour started threatening to dispossess the Plaintiffs from the suit land in Jeth, 1996. The Plaintiffs came to know of the wrong revenue entries only in the month of Jeth, 1996.

The suit was contested by Defendants by filing written statement in which they took preliminary objections that the suit is not maintainable, the Plaintiffs are not in possession of the suit land, the dispute is regarding the tenancy of the suit land, hence the Court has no jurisdiction to try the suit, the Defendants remained in possession of the suit land after alleged redemption as tenants, the alleged redemption is null and void, the suit is beyond limitation, the Plaintiffs have concealed material facts, the impugned mutation conferring proprietary rights of the suit land was attested in presence of the Plaintiffs.

On merits, the Defendants admitted the mortgage. It has been pleaded that Dolu mortgaged the land to Mangat Ram deceased who was also made tenant at will. Bodh Ram was inducted tenant with the consent of Dolu. Thereafter Defendants kept on paying rent to landlord. The wrong entry showing Mangat Ram created sub tenancy in favour of Defendants continued due to illiteracy of Defendants, actually Bodh Ram remained tenant of the owner. Mangat Ram died on 2.3.1958 who was survived by his widow Murtu, son Mohar Chand and daughter Ritu. However, Defendants remained in possession of the suit land as tenants. The Defendants kept on paying rent to Plaintiffs after redemption, subsequently proprietary rights were conferred under the H.P. Tenancy and Land Reforms Act on the tenants. The Plaintiffs never came in possession of the suit land, they ceased to be the owners of the suit land after coming into force of the H.P. Tenancy and Land Reforms Act. The challenge to mutation No. 724 is time barred. The mutation No. 724 is binding on the Plaintiffs; the Plaintiffs are stopped from filing the suit. The Defendants have prayed for dismissal of the suit.

On the pleadings of the parties, the following issues were framed:-

Whether the Plaintiffs are entitled to the relief of declaration as prayed for ? OPP

Whether this Court has no jurisdiction to entertain, try and decide the present suit? OPD

Whether this suit is within limitation? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the Plaintiffs have not come with clean hands to the court and as such, they are not entitled for the discretionary relief? OPD

Relief.

The issue No. 1 was answered in affirmative and issues No. 2 to 5 in negative and the suit was decreed on 30.9.1999. The Plaintiffs were declared owners in possession of the suit land and the mutation No. 724 attested in favour of Defendants was declared to be illegal and void. The Defendants were restrained from interfering in the ownership and possession of the Plaintiffs over the suit land. The learned District Judge accepted the appeal on 8.1.2001 and suit of the Plaintiffs was dismissed. Hence, second appeal which has been admitted on following substantial questions of law:-

Whether presumption arising out of the oral and documentary evidence, particularly, jamabandis Ext. P-1 to P-8 that on the redemption of the mortgage, the Plaintiff was put in possession of the property has been wrongly reversed by the District Judge and the judgment is not sustainable.

Whether the findings that Mangat Ram mortgagee inducted the Defendant as tenant as an act of good and prudent management and, therefore, the Defendant continued to be tenant after the redemption of mortgage and become owner of the land is vitiated and based on no evidence.

I have heard the Learned Counsel for the parties and have also gone through the record. It has been submitted on behalf of the Appellants that learned lower appellate Court has erred in returning the findings that Mangat Ram mortgagee inducted the Defendant as tenant as an act of good and prudent management. The Defendant continued to be tenant after the redemption of mortgage and later on owner of the suit land. This finding is based upon no evidence. The Plaintiffs have proved their possession on the suit land. The Learned Counsel for the Respondents has submitted that the learned District Judge has rightly appreciated the material on record. There is no misconstruction, misinterpretation of the evidence. The findings that Defendant was inducted by Mangat Ram mortgagee on the suit land as tenant on account of good and prudent management, is a finding of fact. The Defendant has proved his possession. The Plaintiffs failed to establish their case. He has supported the impugned judgment, decree.

The substantial question of law No. 2 is taken first for determination. In order to appreciate the controversy, it is better to refer to legal position on the point of induction of tenant by a mortgagee. The Supreme Court in Mahabir Gope and Others Vs. Harbans Narain Singh and Others, has held as follows:

The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will ensure beyond the termination of his interest as mortgagee. Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; & he must not commit any act which is destructive or permanently injurious to the property; see Section 76, sub-clauses (a) & (e) of the Transfer of Property Act. It follows that he may grant leases not extending beyond the period of the mortgage; any leases 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 interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagor?s right to ?khas possession; it would be an act which would fall within the provisions of Section 76, Sub-clause (e) of the Transfer of Property Act.

In Asa Ram and Another Vs. Mst. Ram Kali and Another, the Supreme Court has held as follows:

The law undoubtedly is that no person can transfer property so as to confer on the transferee a title better than what he possess. Therefore, any transfer of the property mortgaged by the mortgagee must cease, when the mortgage is redeemed. Now, S 76 (a) provides that a mortgagee in possession ?must manage the property as a person of ordinary prudence would manage it if it were his own? Though on the language of the statute, this an obligation cast on the mortgagee, the authorities have held that an agricultural lease created by him would be binding on the mortgagor even though the mortgage has been redeemed, provided it is of such a character that a prudent owner of property would enter into it in the usual course of management. This being in the nature of an exception, it is for the person who claims the benefit thereof, to strictly establish it.

The Supreme Court continued:

It would be material in this connection to refer to the character of the lands over which the lease was created. They were held in Sir by the mortgagors and after the execution of the mortgage, entered as Khudkahst in the names of the mortgagees. They were home-farm lands under the direct cultivation of the proprietors, as distinguished from lands which were under cultivation by tenants, and having regard to the special rights which the tenancy laws all over India have recognized in the owner in respect of such lands, an act of the mortgagee which puts those rights in peril cannot, as held in Mahabir Gope v. Harbans Narain Singh(A) ( Supra), be regarded as that of a prudent owner, and it requires exceptional grounds to justify it.

DW-1 Thudi Ram has stated that Guhasari was his grand mother and her daughter Shukri was his mother, Bodh Ram was his father. Dolu Ram was the owner of the land, who mortgaged the land to Mangat Ram than said Mangat Ram was tenant. Bodh Ram and Guhasari became tenants over the suit land on payment of � dhar (unit of rent). On the death of Guhasari the land came to Shukri. Thereafter they became owners under the law. He has also stated that Mangat Ram inducted Bodh Ram as tenant in the year 1960-61. He has shown his ignorance that about 25 years ago the Plaintiffs had redeemed the land and the mutation to this effect was attested in their favour. He admitted that Plaintiffs never inducted them as tenants. The Defendants examined no other witness.

The statement of DW-1 was recorded on 12.8.1999 and on that date he has given his age 30 years. It means his birth year is around 1969. He has deposed regarding induction of Bodh Ram as tenant by Mangat Ram in the year 1960-61 when he was not even born. The creation of tenancy is a matter of contract which is to be pleaded and proved. The Defendants have led no evidence on the creation of tenancy of the suit land by Mangat Ram in favour of Bodh Ram or Guhasari or both and therefore, it has not been proved that Bodh Ram or Bodh Ram and Guhasari were inducted as tenant on the suit land by Mangat Ram.

DW-1 in his statement has not whispered that Mangat Ram inducted Bodh Ram or Bodh Ram and Guhasari as tenants on the suit land as an act of good and prudent management. In these circumstances even otherwise alleged tenancy of Bodh Ram or Guhasari and Bodh Ram cannot be assumed as an act of good and prudent management.

The lower appellate Court has misconstrued and misinterpreted the evidence on record in returning the findings that Mangat Ram inducted Bodh Ram as tenant on the suit land and creation of tenancy by Mangat Ram mortgagee in favour of Bodh Ram was an act of good and prudent management. The findings of the learned District Judge that Defendants have proved that Bodh Ram was inducted as tenant by way of good and prudent management is based upon no evidence. The substantial question of law No. 2 is decided in favour of the Appellants and against the Respondents. It is held that Bodh Ram or Bodh Ram and Guhasari were not inducted as tenants by Mangat Ram on the suit land nor Sukari was tenant on the suit land. In any case the alleged tenancy of Bodh Ram or Bodh Ram and Guhasari was not an act of good and prudent management on the part of Mangat Ram, even otherwise such tenancy comes to an end on redemption.

Insofar substantial question No. 1 is concerned; it has come on record that mutation No. 639 of redemption Ex.D-1 was attested on 5.8.1974. PW-1 Jeetu has stated that Defendants in connivance with Patwari got the mutation attested. The perusal of mutation No. 724 Ex.D2 dated 18.5.1981 indicates that this mutation has been attested u/s 104 of the H.P. Tenancy and Land Reforms Act by Assistant Collector 2nd Grade conferring proprietary rights of land comprised in khasra No. 1923 in favour of Bodh Ram father of DW-1 Tudhi Ram. Rule 29 of the H.P. Tenancy and Land Reforms Rules, 1975 provides that such mutation is to be attested by Assistant Collector Ist Grade. This being the position the mutation No. 724 Ex.D2 is illegal and without jurisdiction. The Defendants cannot take any benefit of such mutation. The revenue entries based on such mutation have no presumption of truth. This aspect has not been considered by the learned District Judge in the impugned judgment.

The khasra No. 1923 measuring 1-16-0 Biswas is the suit land. In jamabandi 1956-57 Ex.P-1 (Hindi version Ex.P-1/H)) khasra No. 1923 has been shown in possession of Mangat Ram mortgagee. In jamabandi 1960-61 Ex.P-2 (Hindi version Ex.P-2/H) Bodh Ram has been shown in possession on behalf of mortgagee as tenant. This has not been explained how entry of Bodh Ram has crept in the revenue record showing him in possession of the suit land in the jamabandi 1960-61. Ex.P-3 is the jamabandi 1965-66 regarding khasra No. 1923 wherein Bodh Ram has been shown tenant under mortgagee of the suit land. Ex.P-4 is the jamabandi 1971-72 showing Bodh Ram as tenant under mortgagees of khasra No. 1923. However, in Ex.P-4 there is note that vide mutation No. 639 the land has been redeemed. In Ex.P-5 jamabandi 1975-76 there is note that vide mutation No. 724 proprietary rights regarding khasra No. 1923 have been conferred in favour of Bodh Ram. Ex.P-6 is the rapat No. 488 regarding the redemption and delivery of possession. Ex.P-7 is the mutation No. 639 of redemption indicating delivery of possession. Ex.P-8 is mutation No. 330 dated 29.12.1960 regarding sale of land by Dolu in favour of Jitu and Bhag Singh

The documentary evidence discussed above clearly establishes that suit land was redeemed vide mutation No. 639 Ex.P-7 and the owners came in possession of the suit land way back on 5.8.1974 when mutation No. 639 Ex.P-7 of redemption was attested. It has not been explained how Defendants or their predecessor came in possession of the suit land after 5.8.1974. The entries showing Defendants or their predecessors in possession of the suit land after 5.8.1974 have no basis and no presumption of truth is attached to such entries. The learned District Judge has misconstrued, misinterpreted the relevant material on record. The substantial question of law No. 1 is decided in favour of the Appellants.

In view of above discussion, the appeal is allowed, impugned judgment, decree dated 8.1.2001 passed by learned District Judge, Kullu in C.A. No. 118 of 1999 are set aside. The judgment, decree passed by learned trial Court regarding the suit land are restored with no order as to costs.