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SUPREME COURT OF INDIA
14th April 1952.
MAHAJAN, CHANDRASEKHARA AIYAR AND VIVIAN BOSE JJ.
Mahabir Gope and others, Appellants
Versus
Harbans Narain Singh and others, Respondents.
Civil Appeal No. 143 of 1951.
Advocates appeared
Shri Saiyid Murtaza Fazl Ali, Advocate, instructed by Shri S. P. Varma, Agent, for Appellants; Shri N. C. Chatterjee, Senior Advocate (Shri A. N. Sinha, Advocate with him), instructed by Shri M. M. Sinha, Agent, for Respondents Nos. 1 to 9; Shri B. K. Saran, Advocate, instructed by Shri K. L. Mehta, Agent, for Respondents Nos. 11 to 16. 206
– As held in various decisions of the Supreme Court, the rights of a tenant inducted by a mortgagee with possession would ensure even beyond the period of mortgage if by reason of legislative enactments subsequently made the tenant’s right had been given statutory protection – vide Mahabir Gope v. Harbans Narain, AIR 1952 SC 205 = 1952 SCR 775 ; Asaa Ram v. Ramkali, AIR 1958 SC 183; Rasul Mahammed Abdul Rahim, AIR 1964 SC 1320 = 1963(3) SCR 1; Prabhu v. Ram Dev, AIR 1966 SC 1721 = 1966(3) SCR 676. The observation in Film Corporation Ltd. v. Gyan Nath, 1970(2) SCR 581, that the general principle of the bona-fide and prudent acts of the mortgagee in possession being binding on the mortgagor even after the title of the mortgagee comes to an end would ordinarily apply to the management of agriculture lands and would seldom extend to urban property was by way of an obiter. Indeed the very same decision has recognized that even if the lease granted by the mortgagee is of urban immovable property, it will be binding on the mortgagor if he had concurred with the granting of the lease. Even in Sachalmal Parasram v. Ratan Bai, AIR 1972 SC 673, where the view taken in the Film Corporation’s case has been followed the observations would only constitute obiter because the decision there too had been rendered in acceptance of the finding of the District Judge that the tenancy created by the mortgagee was not a prudent act.
In the case of Jidavji Purshottam v. Dhami Navnitbhai Amartlal, AIR 1987 SC 2146 = 1987(4) SCC 223 = 1987(3) SCJ 308 = 1987(4) JT 523, it was observed that by no stretch of imagination can the appellant contend that his tenancy rights become enlarged after the mortgagee granted him the lease by subsequent legislation enacted for affording protection to tenants. The fact that the mortgagee had granted lease only for a period of one year will not alter the situation in any manner because not only had the mortgagee executed the lease period of one year but also because the restriction of the lease deed after the expiry of the lease period of one year but also because the restriction of the lease period to one year was of no consequence in view of the provisions contained in the Saurashtra Act XXII of 1951. In the present case there is no scope at all for the appellant to contend that the mortgagee had leased out the property in the belief that he was well within the authority given to him by the mortgagors to lease out the property and therefore the mortgagors are bound by the lease transaction. The mortgagors had not empowered the mortgagee to create a lease which would be binding on them after the redemption of the mortgage and since the appellants’ rights, as a tenant, did not become enlarged by means of any tenancy legislation which came to be enacted after the lease was granted, the appellant can claim tenancy right only as against his landlord viz. the mortgagee and not against the mortgagors. As soon as the mortgagee’s rights became extinguished by the redemption of the mortgagee, neither he nor any one inducted by him has a right to be in possession of the mortgagee property consequently, the mortgagors were entitled to seek ejectment of the mortgagee and the tenant inducted by him.
Judgment
CHANDRASEKHARA AIYAR J.: This is an appeal by the defendants from a decree of the Patna High Court reversing a decree of the Subordinate Judge s Court at Patna, and decreeing the plaintiff s suit for possession against the defendant first party who may be called for the sake of convenience as the Gopes .
2. The lands were khudkhasht lands, partly belonging to the plaintiffs first party and partly belonging to Mussammat Anaro Kuer, from whom the plaintiffs second and third parties trace title. The ancestors of plaintiff first party gave on 28-9-1899 an ijara with possession to one Lakhandeo Singh as ancestor of the defendant second party under Exhibit 1 (b) for a term of six years from 1307 Fasli to 1312 Falsi for Rs. 540/-. The poshgi money was to be repaid in one lump sum at the end of Fasli 1312. If there was no redemption then, the ijara was to continue in force till the money was repaid. Mussammat Anaro Kuer gave her share in ijara to the same Lakhandeo Singh orally on 10th June, 1905, for a period of three years for Rs. 542/-. Lakhandeo Singh, who is represented now by the defendant second party, made a settlement of the land thus got by him (8.26 acres or 13 bighas in all) with one Ram Lal Gope, an ancestor of the defendant first party for a period of three years from Fasli 1315 to Fasli 1318. There was a patta in favour of the tenant and a kabuliyat in favour of the landlord. This was in 1908.
The mortgage was redeemed in June 1942 by payment in proceedings under S. 83 of the Transfer of Property Act. when the plaintiffs went to take possession, they were resisted by the Gopes (defendants first party), and after unsuccessful criminal proceedings, the plaintiff filed the present suit. The Subordinate Judge dismissed it, holding that the Gopes were raiyats having acquired permanent occupancy rights in the lands as the result of the settlement by the mortgagee, Lakhandeo Singh .On appeal the High Court set aside this decision and gave the plaintiffs a decree for possession on the finding that the defendants were not raiyats and had no permanent rights of occupancy. This Court granted to the defendants special leave to appeal.
3. The suit was in the alternative for recovery of the value of the lands as compensation or damages from the defendant second party in case it was found that the defendant first party could not be ejected. The trial Court decreed this alternative claim and awarded to the plaintiffs compensation at the rate of Rs. 200 per bigha. The defendant second party carried the matter in appeal to the High Court and succeeded. But we have nothing to do with this matter in the present appeal.
4. At the trial, the plaintiffs alleged and maintained that the lands were their zirat lands within the meaning of S. 116 of the Bihar Tenancy Act and that the defendant first party could acquire no rights of occupancy in the same. The Subordinate Judge found against this contention and held that they were khudkasht or bakasht lands of the proprietor, in which rights of occupancy can be acquired. He negatived the plea of the defendants that they were their ancestral raiyati lands. He also held that there was no collusion between the mortgagee Lakhandeo Singh and Ram Lal Gope in the matter of settlement of lands. It is on the basis of these findings which were accepted by both the parties that the hearing of the appeal proceeded before the High Court.
5. It was held by the Privy Council in BENGAL INDIGO COMPANY v. RAGHOBUR DAS , 24 Cal 272, that "a zur-i -peshgi lease is not a mere contract for the cultivation of the land at a rent, but is a security to the tenant for his money advanced" They observed, speaking of the leases before them, that
"the leases in question were not mere contracts for the cultivation of the land let; but that they were also intended to constitute, and did constitute, a real and valid security to the tenant for the principal sums which he had advanced, and interest thereon.
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