Krishan Singh vs Kharaiti, Lal etc.

J.V. Gupta, J.—This is defendant''s second appeal against whom decree for possession has been passed by both the Courts below.

The plaintiffs Kharaiti Ram and Babu Ram mortgaged with possession the shop in dispute with Assa Ram, the predecessor-in interest of the defendants Nos. 1 and 2 for the sum of Rs. 3000/- on January,1957. Accordingly possession was handed over of the shop to the mortgagee. Luring the mortgage, the mortgagee had inducted Kishan Singh as tenant (the present appellant) in the shop in dispute. Hence the present suit was filed for redemption against the mortgagee as well as against the defendant Kishan Singh.

The suit was contested by Kishan Singh tenant, on the plea that he was tenant under the mortgagors prior to the mortgage and, therefore, he was not liable to eviction on redemption. In the alternative, he pleaded that he was tenant of the mortgagee with the consent of the mortgagors and, therefore, he would continue to be the tenant even after redemption.

On the appreciation of the entire evidence the trial Court found that althrough Kishan Singh, tenant, had been inducted by the mortgagee himself, there was no consent by the mortgagors for this tenancy. Though in the mortgage deed, it was provided that the mortgagee could use the shop either himself or could induct a tenant of his choice, but that did not mean that mortgagors consented that the said tenancy will continue even after redemption. Consequently the plaintiffs'' suit was decreed against Kishan Singh tenant as well.

In the appeal filed by Kishan Singh, tenant, the learned Additional District Judge affirmed the finding of the trial Court and, thus, maintained the decree passed in favour of the plaintiffs. Dissatisfied with the same, the tenant Kishan Singh has filed this second appeal in this Court.

At the time of motion hearing, reliance was placed on the The All India Film Corporation Ltd., and Others Vs. Sri Raja Gyan Nath and Others, Since the question involved was a pure question of law, it was directed that the appeal be set down for bearing within one year.

The learned counsel for the appellant contended that since in the mortgage deed itself it was provided that the mortgagee may induct the tenant and since the appellant was inducted as a tenant by the mortgagee, then he will be deemed to have been inducted with the consent of the mortgagors, and therefore, he could not be dispossessed on redemption. Reference was made to the All India Film Corporation''s case (supra)

On the other hand, the learned counsel for the plaintiffs respondents referred to Kartar Singh v. Harbans Singh (1978) (2) R.C.J. 1, Charan Dass v. Om Parkash 1983 (1) R.L.R. 251, Sachalmal Parasram Vs. Ratnabai and Others, and Mohan Singh and another v. Ramji Dass 1978 (1) R.L J. 404 in which the said judgment of the Supreme Court was considered and distinguished.

After hearing the learned counsel for the parties, I do not find any merit in this appeal. In the judgment of the Supreme Court in The All India Film Corporation''s case (supra) strong reliance was placed on the observations that "from this it is inferred that acts done bonafide and prudently in the ordinary course of management, may bind even after the termination of the title of the mortgagee in possession. This principle applies ordinarily to the management of agricultural land and has seldom been extended to urban property so as to tie it up in the hands of lessees or to confer on them rights under special statutes. To this again there is an exception. The lease will continue to bind the mortgagor or persons deriving interests from him if the mortgagor had concurred to grant it." However, in that very case, later on in para 11, it was observed that "the termination of the mortgagee interest terminated the relationship of landlord and tenant and it could not, in the circumstances, be said to run with the land. There being no landlord and no tenant, the provisions of the Restriction Act could not apply any further. Nor could it be said that when the mortgagor cancelled the rent note and authorised the mortgagee to find any other tenant, the intention was to allow expressly a tenancy beyond the term of the mortagage." Consequently, in the Supreme case the tenant was dispossessed in execution of the decree for redemption. Similarly, in the present case, there is nothing to show on the record that there was any express intention to allow the tenancy beyond the terms of the mortgage. Moreover, this case was considered lateron by this Court in the judgments referred to above and it was held therein that the tenancy comes to an end after redemption even if the tenant was inducted by the mortgagee in view of the stipulation in the mortgage deed that he could lease out the same to any person. In Mohan Singh''s case (supra) it was held that "such a stipulation in the mortgage deed does not mean that the mortgagee had been given the express right to create tenancy, which might subsist beyond the extinction of the mortgage. Such a tenancy comes to an end at the time of extinction or redemption of the mortgage and the mortgagor is entitled to get actual possession of the mortgaged shop from the tenant inducted by the mortgagee."

In this view of the matter, the appeal fails and is dismissed with costs.