Salanki Hanmanthrao vs H. Gurushanthamma and others

Nesargi, J.—This appeal is by Salanki Hanumanthappa defendant 3 in 0. S. No. 5 of 1970, on the file of the Munsiff, Davangere. Two plaintiffs Gurushanthamma and Parvathamma, who are respondents 1 and 2 in this appeal; filed the said suit praying for possession of the suit schedule property which is premises bearing old Khaneshumari No. 1183 and new door No. 245, in Davangere City, on redemption. The parties would be, in the course of this judgment referred to as plaintiffs and defendants.

The undisputed facts are as follows:

The said property belonged to one Sharnamma, the mother of the plaintiffs. Sharnamma had another daughter, whose husband is defendant 5 Chandrasekharappa. Sharnamma sold the property in the year 1953 to defendant 5 and to Rudrappa defendant 6. This Rudrappa is the son of defendant 5. Defendants 5 and 6 mortgaged the suit property in favour of defendants 1 and 2 and their father on 27-9-1958 for a sum of Rs. 1,500. A further mortgage was created in their favour on 21-5-1959 for another sum of Rs. 300. This mortgage was a usufructuary mortgage. The period agreed to between the parties was four years i.e. upto 27-9-1962. The plaintiffs filed O. S. No. 77 of 1967 challenging the sale of the property by Sharnamma to defendants 5 and 6. Defendants 1 and 2 were also parties to the said suit. That suit ultimately ended in a compromise; decree, the terms of which are found in Ex. P-4. Ex. P-4 is the certified copy of the compromise decree. By virtue of this decree, the property was allotted to the plaintiffs and it was agreed that they should redeem the property by making payment of the required sum to defendants 1 and 2. The plaintiffs issued a notice calling upon defendants 1 and 2 to take the amount and allow redemption of the property, and defendants 1 and 2 sent their reply as per Ex. P-5 dated 18-11-1968. Thereafter, the plaintiffs deposited the required sum in Court In Misc. Application No. 124 of 1968, on 4-12-1968, and then instituted this suit.

Defendant 4 was made party to this suit on the ground that he was residing in another portion of the very same premises as a tenant under defendants 1 and 2.

It is the contention of the plaintiffs, that defendants 1 and 2 could not have created any tenancy rights in favour of defendants 3 and 4 so as to enure to their benefit beyond the period of mortgage i.e. beyond 27-9-62, therefore, defendants 3 and 4 were trespassers so far as plaintiffs'' rights are concerned, that in view of the terms of the mortgage, defendants 1 and 2 were bound to hand over vacant possession of the suit premises to them, and, hence, defendants 1 to 4 were liable to hand over possession of the property to them.

Defendants 1 and 2 filed their written statement and contended that they had inducted defendant 3 as their tenant and would make defendant 3 attorn to the plaintiffs. They denied that defendant 4 was their tenant. They further stated that under the circumstances they could hand over symbolical possession only and hot actual possession.

Defendant 3 filed his written statement on 31-3-1970. In that he contended, that he was a tenant under defendants 1 and 2 and he was originally paying a rent of Rs. 15 per month, that in the year 1964 he executed a rent note agreeing to pay rental of Rs. 20 per, month, and that he being a tenant, he cannot be asked to hand over Vacant possession of the suit premises to the plaintiffs.

Defendant 3 further on, on 10-12-1970 filed an amendment application I. A. NO. III praying for permission to amend his written statement filed by him on 31-3-1970. That was allowed by the Munsiff. By that amendment, he added to his contentions by narrating that even prior to his becoming a tenant of defendants 1 and 2, he was a tenant under defendant 5 and at that time he was paying Rs. 15 per month as rental.

Defendant 4 contested the suit by putting forward his own contentions, but he failed in the suit and the decree has become final against him because he has not preferred any appeal in this Court.

The two Courts below found Chat defendants 1 and 2 could not create tenancy rights in favour of defendant 3 so as to enure to the benefit of defendant 3 beyond the period covered by the mortgage, viz., 27-9-1962, and, therefore, defendants 1 to 3 were liable to hand Over vacant possession of the suit premises to the plaintiffs. The lower appellate Court found on evidence that defendant 3 become the tenant of defendants 1 and 2 in the year 1964 as is evidenced by the rent note admittedly executed by defendant and, therefore, his case that he was a tenant of defendant 5 even prior to the mortgage, is not tenable.

Sri M. Rama Bhat, the learned Advocate appearing on behalf of the appellant, urged two points for consideration. The first point urged by him is that It is not the law that the tenancy right of defendant 3 did not enure to his benefit beyond 27-9-1962 because the mortgagees viz. defendants 1 and 2 had every right to lease out the property to defendant 3 and such lease bound the plaintiffs also, even beyond the said period viz. 27-9-62. His next point is that defendant 3 had specifically, at least by his amended written statement contended that he was also a tenant under defendant 5 and that too prior to the mortgages in question and, therefore, he could not be made to hand over vacant possession of the suit premises in view of Section 21. of the Mysore Rent Control Act, 1961 (to be hereinafter referred to as the ''Act''). In this connection, he further argued that the two Courts below have, while approaching this question of fact raised by defendant 3, not taken into consideration the admission made by plaintiff 2 examined as P.W. 1, that defendant 3 was a tenant under defendant 5, and defendant 5''s evidence as P.W. 2, that defendant 3 was a tenant since ten to twelve years prior to 1870 when his deposition was recorded.

Taking up the first contents put forward by Sri Rama Bhat, it is to be observed that the position in law is settled by the Supreme Court in Sachalmal Parasram Vs. Ratnabai and Others, Their Lordships have clearly laid down, that tenancy created by a mortgagee in possession does not survive the termination of the mortgagee''s interests that the termination of the mortgagee''s interest terminates the relationship of landlord and tenant, and there being no landlord and tenant, the tenant cannot claim the protection of Rent Control Legislation in the said case, the Madhya Pradesh Accommodation Control Act, 1961 (to be hereinafter referred to as the ''M. P. Act''). While laying down this proposition their Lordships have followed, the decision in All India Film Corporation Ltd. v. Raja Gyan Nath, ( AIR 1969 NSC 185) and have relied on the decision in Kamlakar and Company Vs. Gulamshafi Imambhai Musalman, and Bhanshali Kushalchand Ramji and Another Vs. Sha Shamji Jivraj and Others, In Sachalmal Parasram Vs. Ratnabai and Others, their Lordships have further on laid down that the principle of Section 76 (a) of the Transfer of Property Act (to be hereinafter referred to as the (''T. P. Act'') that acts done bona fide and prudently in the ordinary course of management may bind even after the termination of the title of the mortgagee in possession, applies ordinarily to the management of agricultural lands and has seldom been extended to urban property. In this connection, they have quoted almost in extenso, the observations made in All India Film Corporation Ltd''s case, AIR 1969 NSC 185.

It is, hence, clear that the contention of Sri Rama Bhat that tenancy created by the mortgagee in possession survives the termination of the mortgagee''s interest is not tenable. In view of this position, Sri Rama Bhat urged that the provisions of the Act afford protection to defendant 3 and, therefore, the decrees of the lower Courts are contrary to law. He pointed out that the definition of ''landlord'' in Section 3 (h) of the Act would cover a mortgagee also and, therefore, defendant 3 became a tenant of the mortgagees even beyond the period of the mortgage. It is on this basis he further contended that in view of Section 21 (D of the Act, defendant 3 cannot be asked to hand over vacant possession of the suit premises to the plaintiffs.

In Sachalmal Parasram Vs. Ratnabai and Others, their Lordships considered the claim of the tenant that he was protected by the provisions of the M. P. Act and did not uphold the contention. Section 2 (b) of the M. P. Act defines ''landlord'' as follows:

''Landlord'' means a person, who for the time being, is receiving, or is entitled to receive, the rent of any accommodation, whether on his own account or on account of or on behalf of or for the benefit of; any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the accommodation were let to a tenant and includes every person not being a tenant who from time to time derives title under a landlord;

Section 3 (h) of the Act defines ''land-lord'' as follows:

''Landlord'' means any person who is for the time being receiving or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let. to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his subtenant a tenant who has sub-let any premises;

A comparison of the language of the two provisions leaves no doubt in my mind that the provisions are in pari materia,

Section 12 (1) of the M. P, Act dealing with restriction on eviction of tenants, reads as follows:

Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only, namely:--

* * * *

Section 21 (1) of the Act dealing with the very same aspect which has been styled as protection of tenants against eviction, reads as follows:

Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made in any court or other authority in favour of the landlord against the tenant:

Provided that the Court may on an application made to it, make an order for the recovery of possession, of a premises on one or more of the following grounds only, namely:--

* * * *

Here again, it is to be observed that both the provisions are in pari materia. In view of the above position it will have to be held that the decision in Sachalmal Parasram Vs. Ratnabai and Others, covers this aspect of the matter also and, hence, the contention of Sri Rama Bhat that defendant 3 is protected by the provisions of the Act and, therefore, he cannot be evicted by asking him to hand over vacant possession of the suit premises to the plaintiffs, cannot be accepted.

Sri Rama Bhat vehemently urged that defendant 3 was entitled to the protection of Section 76 (a) of the T. P. Act as it would be applicable to such leases also. He pointed out in this connection that the facts available would not lead to a conclusion that the mortgagees viz. defendants 1 and 2 had managed the property not in a prudent manner. He placed much reliance on the observations of the Supreme Court in the decisions in Sachalmal Parasram Vs. Ratnabai and Others, and All India Film Corpn. Ltd.''s case, AIR 1969 NSC 185, that provisions of Section 76 (a) of the T. P. Act had been applied rarely to leases in regard to urban properties also. Further on, he drew support from the decision in Thacker Madhavji Meghaji Vs. Lalji Purshottam, Elaborating his arguments, Sri Rama Bhat urged that the Supreme Court had not laid down in any of the above cited decisions that provisions of Section 76 (a) of the T. P. Act would not be applicable to leases in regard to urban properties, but on the other hand, accepted that the provisions of Section 76 (a) of the T. P. Act had been applied in rare cases and that would go to show that in law the said provision has to be applied to the case on hand also. It is in this context he sought support from the decision in Thacker Madhavji Meghaji Vs. Lalji Purshottam, It is true that Dave J. who rendered the decision in Thacker Madhavji Meghaji Vs. Lalji Purshottam, , has, after considering the decision in All India Film Corpn. Ltd.''s case, AIR 1969 NSC 185, held that the provisions of Section 76 (a) of the T. P. Act were applicable in regard to lease that was being considered by him and which was in respect of urban property. It will have to be said that to this extent Sri Rama Bhat is well supported by this decision. But such a conclusion has been reached on the basis of the facts and circumstances relating to the terms of the mortgage and nature of the lease in question in the said case. Neither in any of the decisions in Sachalmal Parasram Vs. Ratnabai and Others, and All India Film Corpn. Ltd.''s case, AIR 1969 NSC 185 nor in Thacker Madhavji Meghaji Vs. Lalji Purshottam, are any guidelines Indicated as to under what circumstances provisions of Section 76 (a) of the T. P. Act, should be made applicable even in regard to leases pertaining to urban properties. To my mind, it appears quite clear that all that the Supreme Court has stated in All India Film Corpn. Ltd''s case, AIR 1969 NSC 185 followed in Sachalmal Parasram Vs. Ratnabai and Others, , is that in very few cases provisions of Section 76 (a) of the T. P. Act have been applied to leases of urban properties. In the said two decisions, the Supreme Court did not consider whether application of Section 76 (a) of the T. P. Act even in those rare cases was correct in law or not The Supreme Court considered whether on facts the exception provided in Section 76 (a) of the T. P. Act would cover the contentions raised by the tenants in the said two cases, and concluded that even on facts they were not protected.

In view of the reasons and ''circumstances narrated in the foregoing paragraphs, I am convinced that proper foundation has to be laid, as was laid in Thacker Madhavji Meghaji Vs. Lalji Purshottam, , in order to make the provisions of Section 76 (a) of the T. P. Act applicable to leases pertaining to urban properties, Sri Rama Bhat was unable to show that any such proper foundation had been laid in this case, I, therefore, reject this contention,

It has been already narrated that it was on 31-3-1970 that defendant 3 filed his written statement in the first instance and got it amended by I. A No. III filed on 10-12-1970. It is undisputed that in his written statement dated 31-3-1970, he had not contended that he was a tenant under defendant 5 himself i.e., much earlier to the mortgages in question. He set out that contention for the first time by way of the amendment put forward by him on 10-12-1970. But, in the meanwhile, plaintiff 2 had examined herself as P.W. 1 on 4-12-1970 and 5-12-, 1970. She, in cross-examination, made a stray admission that defendant 3 was a tenant under defendant 5. Defendant 5 himself was examined as P.W. 2 on 5-12-1970. Then the plaintiffs closed their case. The case was adjourned to 10-12-70 for recording evidence on behalf of the defendants. It was on that day that defendant 3 filed I. A. No. III praying for amendment of his written statement so as to incorporate a contention that he was a tenant under defendant 5 himself. These facts and circumstances make it evident that defendant 3 sought to take advantage of the stray admission made by plaintiff 2 in her cross-examination that defendant 3 was a tenant under defendant 5. Anyhow, he was permitted to amend the written statement and, therefore, he adduced Ms evidence and closed his. case. It is important to consider those facts and circumstances to ascertain the weight to be attached to the admission of plaintiff 2 viz., P.W. 1 that defendant 3 was a tenant under defendant 5. It is in my opinion, unnecessary to lay stress on the fact that the amendment of the written statement secured by defendant 3 has taken the plaintiffs by surprise. A new defence has been permitted to be set up by, defendant 3 because such a contention leads him to claim the benefit of the provisions of the Act, which benefit he had not claimed by his original written statement. It is no doubt true that both the Courts below have just ignored this admission made by plaintiff 2 in her cross-examination. Sri Rama Bhat contended that they ought not to have ignored the admission, but ought to have considered the same and recorded a finding whether defendant 3 was a tenant under Defendant 5. In my opinion the two Courts below were wholly justified in ignoring this stray admission made by P.W. 2 in view of the facts and circumstances already narrated and discussed above by me. The two Courts below were not right in not expressing any reasons as to why they chose to ignore the admission made by plaintiff 2, but that does not come in the way of acceptance of their finding that defendant 3 had failed to establish that he was a tenant under defendant 5. The contention of Sri Rama Bhat that defendant 5 himself has stated that defendant 3 was a tenant since about ten to twelve years prior to 1970, would lead to show that defendant 3 was a tenant under defendant 5, has no force because it is not the say of defendant 5 that he had ever leased the property to defendant 3. He has in fact made a categorical statement in this connection that defendant 3 was never a tenant under him.

Sri Rama Bhat contended that as both the Courts below have not taken into consideration this part of the case of defendant 3 that he was a tenant under defendant 5 and ignored the admission of plaintiff 2 that defendant 3 was a tenant under defendant 5, this is a fit case for remand to the lower appellate Court I am not impressed by this reasoning, in view of the reasons already narrated above by me. I, therefore, reject this contention.

In the result this appeal falls and is dismissed.

Cross-objections have been filed by the plaintiffs, and Sri Santhosh Hegde, the learned Advocate appearing on behalf of the plaintiffs, fairly stated that he does not press the same and In my opinion, justly.

Each party to bear its costs under the circumstances of this case.