IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CM No.8903-04-C of 2007 in

RSA NO.3185 OF 2007

DECIDED ON : 10.08.2009

Raj Pal Singh & others

...Appellants

versus

Pritam alias Ved Parkash & others

...Respondents

CORAM : HON'BLE MR. JUSTICE AJAY TEWARI

Present :

Mr. Sunil Panwar, Advocate

for the appellants.

AJAY TEWARI, J. (ORAL)

CM No.8903-C of 2007

For the reasons recorded in the application, the delay

of 21 days in refilling the appeal is condoned.

CM stands disposed of.

RSA No.3185 of 2007

This appeal has been filed against the concurrent

judgments of the Courts below decreeing the suit of the

respondent for possession over the land left behind by Rattan

Singh and others. Learned counsel has proposed the following

questions:

i) Whether in view of pleadings, sanction of mutation and

partition of land vide instrument Ex.D1 the present suit had

become infructous and was liable to be dismissed?

ii)Whether tenancy created by Mishir Singh Vendee, at the time

of his absolute ownership, would terminate on redemption of

land from mortgage on death of original vendor?

iii)Whether defendants No.5 to 8-appellants, who were

RSA No.3185 of 2007

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admittedly tenants over disputed property, could only be

evicted by recourse to proceedings under the Punjab Security

and Land Tenures Act?

iv)Whether relief of possession can be granted in respect of

property for which neither any pleadings have been made, nor

issue framed and neither any evidence led?

v)Whether the suit was not maintainable in its present form and

jurisdiction of Civil Court barred in view statutory remedy

available under the Redemption of Mortgages (Punjab) Act

1913?

vi)Whether the impugned judgments and decrees results from

misleading of evidence and mis-appreciation of law and

patently perverse?

With regard to question No.(ii), (iii) & (iv), they are

overlapping. Learned counsel is not in a position to deny that in

general a mortgagee cannot bind the mortgagor to a relationship

which out-lives the mortgage. He however relies upon a

judgment of Hon'ble Supreme Court in Ram Chand versus

Randhir Singh & others reported as 1994 PLJ 543, wherein it

was held as follows:

“The legal position with regard to the agricultural

leases, has also been settled by a five judge Bench of

this Hon'ble Court in Prabhu versus Ramdeo & others

AIR 1966 S.C.1721, by holding that persons inducted

into agricultural lands as tenants by a usufructuary

mortgagee, who became entitled to protection under

the tenancy laws, cannot be ejected by the mortgagor

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on the ground that the mortgage of the land had been

redeemed. Even though that was a case in which the

right of tenure accrued to the tenants after the

creation of the lease but on principle it would not

make a difference in so far as the present case is

concerned, where the Punjab Security of Land Tenures

Act giving protection to the tenants from ejectment,

except on grounds mentioned in the statute, became

available from 15.04.1953 onwards, and the lease

herein has been shown to have commenced with the

agricultural year starting from 15.06.1953, within a

span of two months of that Act being enforced. When

viewed in this backdrop it becomes apparent that

when the mortgagee changed the tenant, he had done

so under his legal right and obligation under Section

76(a) of the Transfer of Property Act and the just and

equitable principles involved therein. Thus his deeds

in that regard are to be considered as deeds of the

mortgagor. Having arrived at such conclusion, it is not

difficult then to proceed on the footing that the

tenancy created by the mortgagee was in sum and

substance the tenancy created by and for the

mortgagor and when on that basis the mortgagor gets

to be the vendor of the land sold during the

subsistence of the mortgage, the tenants inducted on

the