Ram Sarup Sant Ram Aggarwal vs Chanan Singh Arjan Singh and Others

This second appeal is directed against the decision of the Senior Subordinate Judge reversing on appeal the decision of the trial Court decreeing the Plaintiffs suit.

The facts giving rise to this second appeal are as follows: Chanan Singh, Atma Singh and some other persons were co-sharers in a plot of land. This plot of land was leased out by Atma Singh to Ram Sarup Appellant. Ram Sarup had taken this plot on lease for working brick-kiln and it is alleged that he had set up the kiln and had made certain constructions on the land for the purposes of the kiln. The lease-deed was executed by Atma Singh on 1st May. 1953 Chanan Singh brought a suit for partition of the joint land and obtained a decree for possession of his share on 18th December, 1959, Chanan Singh in execution applied for delivery of possession. This led to the present suit by Ram Sarup for a declaration that he is the tenant of the land and, therefore cannot be ejected in execution of the decree for possession by partition obtained by Chanan Singh. The trial Court held that Ram Sarup was a tenant of Atma Singh and, therefore, after partition should be deemed to have attorned in favour of Chanan Singh Accordingly, the Plaintiff''s suit was decreed. Against this decision appeal was preferred by Chanan Singh. The same came up for hearing before the Senior Subordinate Judge who reversed the decision of the trial Court on the short ground that a tenant of a co-sharer does not ipso facto become a tenant of the other co-sharer who has not settled that tenant on the joint land The learned Senior Subordinate Judge took the view that by reason of partition decree the land in dispute which formed the subject-matter of the tenancy of the Plaintiff had fallen to the share of Chanan Singh and. therefore, in execution of that decree Chanan Singh was entitled to possession of the same The Plaintiff derived his title from Atma Ram and as the decree bound Atma Singh, the Plaintiff was consequently bound by that decree.

The rule appears to be firmly settled that "a person to whom a parcel of land has been allotted by a decree for partition of a Civil Court does not take it subject to a permanent lease granted by his former co-owners without his concurrence when the land was the joint property of all the cosharers." vide Niranjan Mukherjee Vs. Soudamini Dasi and Others, This rule is based on the decision of the Privy Council in Byjnath Lal v. Ramoodeen 1 Ind App 106 (PC) wherein their Lordships observed as follows-

It is, therefore, clear that the mortgagor had power to pledge his own undivided share in these villages; but it is also clear that he could not by so doing, affect the interest of other shared in them, and that the person who took the security took it subject to the right of those sharers to enforce a partition and thereby to convert what was an undivided share in the whole into a defined portion held in severalty.

No decision to the contrary has been cited at the bar by the learned Counsel for the Appellant for the proposition that a tenant let on the land by one of the co-sharers of the joint land ipso facto becomes a tenant of the other co-sharers. I am not unmindful of the fact that it is open to the other co-sharers to adopt the tenant let on the joint land by one of the co-sharers by their own act or con duct but that is not the case so far as the in stant case goes. The Plaintiff never took up the plea that though he had been brought upon the land by Atma Singh he had been accepted as tenant by the remaining co-sharers or that the remaining co-sharers acquiesced in his being the tenant of the joint land. Mr Wasu learned Counsel for the Appellant, however, relied on a decision of Calcutta High Court in Syamnessa Bibi v. Abdul Gani 104 Ind Cas 366 : AIR 1927 Cal 8821 That decision does not in any way support his contention. All that was laid down in that authority was that departure may be made from the rule laid down by the Full Bench in Niranjan Mukherjee Vs. Soudamini Dasi and Others, where certain equitable considerations had been proved So far as the present case is concerned, no such consideration arises for determination for none were pleaded or proved.

This brings me to the consideration of the main question that was debated before me, namely whether in execution of the partition decree the Plaintiff can be evicted, or the decree-holder in the partition decree is to bring a separate suit for the eviction of the Plaintiff who is the tenant one of the co-sharers against whom partition decree was passed. It is conceded that partition decree does bind the Plaintiff but it is urged that partition decree will have to be enforced by a separate suit and in execution of partition decree the decree-holder cannot evict the Plaintiff. He can only take symbolical possession of the property and the decree can in that manner be executed and satisfied.

To determine this question, I advert to two sets of decisions wherein it has been held that a tenant settled on the land by a mortgagee can be evicted in execution of a redemption decrees and also the second type of cases where a sub-tenant can be evicted in execution of a decree obtained against a tenant. In both these types of cases, neither the tenant of the mortgagee not the sub tenant were parties to the suits on the basis of which the redemption decree for redemption of the mortgage against the mortgagee and a decree for eviction of the tenant against the tenant was obtained by the mortgagor or the landlord judicial decisions seem to be unanimous on this that such decree-holders can evict the tenant and the sub-tenant in the aforesaid two types of cases in execution of their decrees obtained against the mortgagee or tie tenant. At this stage it will be proper to set out those decisions In the first set of decisions, I would start with the decision of the Supreme Court in Mahabir Gope and Others Vs. Harbans Narain Singh and Others, wherein their Lordships of the Supreme Court observed as under-

The general rule is that a person cannot by transfer or otherwise confer a better title on an other than he himself has. A mortgagee cannot therefore, create an interest in the mortgage property which will enure beyond the termination of his interest as mortgagee. Further, the mortgagee who takes possession of the mortgaged properly must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is destructive, or per manently injurious to the property. 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.

In the case before the Supreme Court the mortgagee had settled a tenant on the land The mortgagor redeemed the land by payment in proceedings u/s 83 of the Transfer of Property Act When the Plaintiff-mortgagors went no take possession, they were resisted by the tenants put on the land by the mortgagee. The Plaintiffs filed the suit for possession of the land the trial Court dismissed the Plaintiff''s suit but the High Court decreed their suit Against this decision appeal was preferred by special leave to the Supreme Court and that appeal also failed I have already quoted the observations made by the Supreme Court while dismissing that appeal The next case in point of time is Ameenuddin v. Moham mad Khader All. AIR 1953 AP 129, wherein it was observed as follows:

The general rule is that a person cannot by transfer or otherwise confer a better title on an other than he himself has A usufructuary mortgagee, therefore, cannot create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee it follows that he may grant leases not exceeding beyond the period of a mortgage any lease granted by him must come to an end at redemption The interest of a tenant of a mortgaged house.

therefore comes to an end on redemption of the mortgage and the mortgagor is entitled to actual possession of the house in execution of his decree or redemption.

In the case before the Hyderabad High Court, ob lection was taken by the tenant let in by the mortgagees at the time of execution and that objection was repelled as already stated In the next cases Kamlakar and Company Vs. Gulamshafi Imambhai Musalman, and Ravji Vasta v. Gopalji AIR 1963 Guj 328, a similar view was adopted. No authority to the contrary has been cited at the bar by the learned Counsel for the Appellant.

So far as the second set of cases is con cerned reference may first be made to Jafferji (brahimji v. Miyadin Mangal AIR 1922 Bom. 273, in that case a sub-tenant who was not party to a decree for possession passed in favour of the landlord against the tenant was evicted in execution of the decree and it was held that such a sub tenant is not a person who is in possession of the premises in his own right. He* derives his title from the tenant and his rights come to an end as soon as the rights of the person from whom he derives title come to an end. In the same volume in Jairam Jadowji v. Nowroji Jamshedji Plumber AIR 1922 Bom 449 (2), Macleod C.J., observed-

A sub-tenant cannot claim to be in possession of property on his own account within the meaning of Order 21 Rule 99, and if his immediate landlord is the tenant and judgment-debtor he cannot be in possession on account of some person other than the judgment-debtor When a landlord gets a decree for possession against his tenant, and is resisted or obstructed In obtaining possession, it is open to him to apply to the Court to get possession under Order 21, Rule 97, and if the person resisting or obstructing is in possession as a sub-tenant that person cannot claim under Rule 99 that the application should be dismissed.

The words ''on his own account'' in Rule 99 can only refer to a person who claims to be in possession on his own title, or as tenant of some person other than the judgment-debtor.

To the same effect are the observations in Sheikh Yusuf v. lyotish Chandra AIR 1932 Cal 241 and Sailendra Nath v. Bijan Lal AIR 1945 Cal 288, see no difference in principle in the case of a tenant settled by one of the co-sharers on Joint land for the application of the rule laid down by the aforesaid cases Such a tenant by no stretch of imagination can become the tenant of the other co-sharers In order to bring about relationship of landlord and tenant there has to be a contract between the parties. I have already mentioned that it is open to the joint owners either to authorise one of the joint owners to settle a tenant on the joint land or to adopt a tenant settled by one the joint owners as their tenant, but these are questions of fact and have to be proved in each individual ease So far as the present case is concerned it was not the Plaintiff''s case that he had been settled on the land as a tenant with the concurrence of all the co-owners or that the other co-owners than the co-owner settling him and acquiesced in his tenancy of the joint land. The partition decree binds his landlord as much as it binds him Moreover no hardship or injustice as caused to such a tenant because his rights by operation of law will get transferred to the land which falls to the share of his landlord (the co-share) leasing out the part of the joint land to him In my view, both on principle and on authority the decision of the lower appellate Court is correct and must be upheld.

For the reasons given above, this appeal fails and is dismissed but in view of the difficult nature of the question involved I will make no order as to cosets in this court.