IMPORTANT POINT
In absence of any stipulation in mortgage deed, original mortgagor cannot be forced to treat tenant inducted by mortgagee to be his tenants after redemption of mortgage.

Sudhir Agarwal, J.—This is defendant’s appeal under Section 100 CPC. The plaintiffs/respondents (13 in numbers) (hereinafter referred to “plaintiffs”) instituted original suit No.359 of 1974 against defendant appellant Gurdev Sahai (now deceased and substituted by his heir and representative) (hereinafter referred to as “defendant”) seeking a declaration that plaintiffs are tenants in house No. 113, Mohalla Gai Ghat, Varanasi and they cannot be evicted pursuant to a decree passed in original suit No.195 of 1970, which will have no impact upon them.

2. Sri K.D.Rai, City Munsiff, Varanasi dismissed the suit vide judgment dated 8.5.1975 whereagainst two appeals were filed i.e. civil appeal No.360 of l975 by plaintiff/respondent No.1 and 364 of 1975 by rest of the plaintiffs.

3. Sri A.B.Hajela, learned Additional District & Sessions Judge (V Court), Varanasi vide judgment dated 24.8.1977 has allowed both the aforesaid appeals, hence this appeal by the defendant.

4. This court formulated following two substantial questions of law:

1. Whether defendant-appellant was entitled to dispossess the plaintiff/respondent in execution of his decree for redemption of mortgage?

2. Whether the act of mortgagee of letting out the property was a prudent act?

5. Sri M.N.Singh, learned counsel appearing for the defendant appellant contended, when tenants are inducted by mortgagee after redumption of mortgage, the tenants cease to have any right to continue to stay in the tenanted accommodation and therefore, are liable to be evicted and placed reliance on Apex Court’s decision in Carona Shoe Co. Ltd. and another v. K.C.Bhaskaran Nair, AIR 1989 SC 1110.; and Hariram Lehrumal Sindhi v. Anandrao Narayanrao Mukat; and others, AIR 1992 MP 1.

6. Per contra, Sri RK.Srivastava, learned counsel appearing for respondents submitted that finding has been recorded by lower appellate court that mortgagee’s act of letting the house was a prudent act and it is a finding of fact. That being so, tenants of mortgagee are protected under Section 76(a) of Transfer of Property Act, 1882 (hereinafter referred to as “1882 Act”) and they cannot be evicted at the time of redemption of mortgage. Their tenancy would stand permanent as the mortgagee has created tenancy in a prudent marmer. Reliance is placed on two judgments in Habib Seth v. Kashi Nath & Ors., 1968 ALJ 446. and Manzoor Husain & Ors. v. Mir Khan & Ors., 1974 ALJ 274. He further contended that after 60 years of tenancy, plaintiff-respondents are protected under the rent statute which is a special statute and gives fresh rights to the tenants hence he carmot be evicted and placed reliance on Apex Court’s decision in Mahabir Gope & Ors. v. Harbans Narain Singh & Ors., 1952 SC 205.

7. From record, the undisputed facts borne out are that house No.K1/3 (old No.66/43) initially belong to Mahadeo Dutt, father of Gurudeo Sahai, the defendant/appellant. He executed a usufructuary mortgage on 14.8.1922, of the aforesaid house, for a consideration of Rs.7,000, in favour of Smt.Rani Jagarnath Kunwar, widow of Raja Bahadur Sarpal Singh of Tiloi State of Rai Bareli district. The mortgagee died on 7th August, 1933. The plaintiffs though initially claimed that they were let out different portions of house in question by Sri Mahadeo Dutt but this fact could not be proved by plaintiffs before Courts below. The lower appellate court has found that none of the plaintiffs could prove commencement of their tenancy before 14th August, 1922 i.e. the date on which the mortgage deed was executed. A finding of fact has been recorded by both the Courts below that their tenancy rights have come into existence on various dates after 1922 and therefore, their basic contention that any or all the plaintiffs were tenants of erstwhile owner of building namely Mahadeo Dutt is not correct. On the contrary, what has been found proved is that tenancy of plaintiffs had arisen at different points of time during the period when the property w