Per Shri K. S. Ranawat, Chairman - (1.) THIS is the defendants second appeal against the appellate decree of the Additional Commissioner, Jaipur, dated 26-9-53 confirming the decree of the trial court in a suit brought by the respondent plaintiffs against the appellants-defendants for recovery of possession over the land in dispute.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. In the lower courts the appellant's contention was that the respondents had voluntarily surrendered their possession and as such they were not entitled to seek restoration Both the lower courts held that no voluntary surrender was proved in the case. The learned counsel for the appellants has frankly conceded his inability to show us anything substantial which may justify our interference with the concurrent findings of the lower courts on a question of fact in the second appeal. An interesting point of law has, however, been raised by Shri Dhonkal Singh to appreciate which the facts of the case deserve to be noted briefly. The lands in dispute khasra Nos. 483,484 and 486 in village Permada Kalan, Tehsil Mundawar, Alwar District, are in the milkiyat of Bhanwar Singh, Devisingh, Jatan Singh, and Pratap Singh. They are recorded as proprietors in the Record of Rights. These persons mortgaged this land with Bholu Ram and Udai Ram. The plaintiffs Ruda and Ghisa were admitted to tenancy by the mortgagees in Samvat 2006 and continued in possession in Samvat 2008 as well. The mortgage was redeemed in May, 1952. The contention of the appellants' counsel is that even if it be held that the defendants forcibly acquired possession from the plaintiffs, the latter can hardly have any legal claim for recovery of possession for their tenancy, which was a creation of the mortgagees came to an end with the redemption of the mortgage. Reliance was placed in this connection upon AIJR Volume III page 517, AIR 1929, Patna 630, XLIV Indian Cases 839, AIR 1953 Hyderabad 129 and 1945 R. D. 316. The law on the subject has been clearly enunciated by the Supreme Court in a decision reported in A. I. R. 1952 Supreme Court 205 (Mahabir Gope & others vs. Harbans Narain Singh) The following passages may be quoted in full. "para 6. The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. Further, the mortgagee,who takes possession of the mortgaged property,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 permanently injurious to the property (see sec. 76 sub-clause (a) and (c)of the Transfer of Property Act ). It allows 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. A mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor's interest such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagor's right to 'khas' possession, it would be an act which would fall within the provisions of S. 76 Sub-clause (e) of the Transfer of Property Act. Para 7. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether. It is an exception to the general rule. The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage. He may become an occupancy 'raiyat' in some cases and a non occupancy 'raiyat' in other cases. But the settlement of the tenant by the mortgagee must have been a 'bonafide' one. This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication. " The observation that a tenant cannot be ejected by the mortgagor even after the redemption of the mortgage provides a clear answer to the contention raised by the appellants' counsel. For a clear elucidation of the principles laid down in this decision a reference may be made to A. I. R, 1954, Allahabad 16. In that case a question arose as to whether upon redemption of the mortgage the tenant to whom the house had been let out by the mortgagee became a trespasser from the date of redemption. Whether he could be ejected as a trespasser or was the mortgagor after redeeming the property bound to take steps to eject him as a tenant. The entire case law on the subject was examined by Malik C. J. and the following passages may be quoted from the judgment. . . "para 1. No doubt, on the redemption of the mortgage, the mortgagor is not bound by the transfers made by the mortgagee or by contracts entered into by him unless his action can be supported on the ground that it was authorised by law or that he was empowered to act under some power or authority, express or implied conferred on him by the mortgagor. The mortgagor in such a case may be entitled to claim back possession of the property free from any liability created by the mortgagee after the redemption of the mortgage, but this does not mean that if in the exercise of his powers of his due management as a person of ordinary prudence he has entered into an agreement of tenancy, on the mere redemption of the mortgage without the mortgagor exercising his opinion of putting an end to the tenancy the tenancy automatically and 'ipso facto' lapses on the date of the redemption. (9) Learned counsel have cited some cases relating to agricultural land and have urged that, though in cases of agricultural land by reason of Tenancy Act those decisions may have been justified, the principle laid down in those cases does not apply. A number of rulings has also been cited for the proposition that a mortgage has no right to create a title beyond the continuance of a mortgage and on the redemption of the mortgage the title of the transferee from the mortgagee ceases. In view of the recent decision of the Supreme Court, in "mahabir Gope vs. Harbans Narain Singh" A. I. R. 1952 S. G. 205, it is no longer necessary for us to discuss the cases relied upon by the learned counsel. Dealing with the question of a mortgagee creating a lease for a definite period and the lessee claiming that the mortgagor even after the redemption of the mortgage was bound and could not claim back possession of the property before the expiry of the period for which the mortgagee had granted the lease, their Lordships held that. "a mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor's interest such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land, thereby defeating the mortgagor's right to khas possession ; it would be an act which would fall within the provisions of S. 76 Sub-cl - (e ). " Their Lordships, however, pointed out that "a permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land 'and possession for the requisite period is a different matter altogether. It is an exception to the general rule. " (10) In the case before us, the mortgagee had created merely a tenancy from month to month in accordance with the provisions of Secs. 76 (a) and 106 T. P. , Act. It could not be said that he had done anything contrary to law or usage in letting out the shop, which he could not occupy himself and that he had not acted as a "person of ordinary prudence. " On the redemption of the mortgage the mortgagor no doubt has the right ordinarily to terminate the tenancy by giving 15 days' notice in accordance with the provisions of S. 106 T. P. Act. The Control of Rent and Eviction Act, 1947,it is urged, however, restricts the right of a land lord to eject a tenant and a suit for ejectment can, therefore, be filed only in accordance with the provisions of sec. 3 of the Act. The decision of the lower courts, that the defendant did not automatically become a trespasser on the date of the redemption of the mortgage is correct. . . . . . . . . . . . " Applying these provisions to the present case we find that the defendants had no authority to take law in their hands. Sec. 180 of the Alwar State Revenue Code prescribes the procedure for ejectment of tenants; A tenant cannot be ejected otherwise then in execution of a decree for ejectment except in the following cases viz. (a) When a decree for an arrear of rent in respect of a tenancy has been passed against him and remains unsatisfied, and (b) that the tenant has any right of occupancy and does not hold for a fixed term under a contract or a decree or order of a competent authority. In cases falling under (a) above, the land-lord may apply to the Tehsildar for the ejectment of a tenant and for cases falling under clause (b) the application shall be for the service, on tenant, of a notice of ejectment. It is nowhere provided in the Code that a tenant can be ejected by a landlord without the intervention of a court. Sec. 184 of the Alwar State Revenue Code lays down that a tenant dispossessed, without his consent, of his tenancy may within one year from the date of his dispossession institute a suit for recovery of possession or for compensation or for both. The Alwar State Revenue Code defines a tenant as a person holding land under another. Strictly speaking, a tenant on wrongful dispossession would cease to hold land but for purposes of Sec. 184 he would be deemed to be "holding" land within the limitation prescribed by the section. There is thus no substance in this appeal which deserves to be rejected. Per Shri Roop Narain - The brief facts of the case are given in the above judgment of my learned colleague. I, however, consider it necessary to examine them in a little greater detail in order to enable a proper appreciation of the intricate law point involved in the case. It is accepted that the land in dispute is the joint milkiyat of Pratap Singh, appellant and three others. Bhanwarsingh and Devsingh and Jatansingh. It is also accepted that it was mortgaged by them with Bholuram & Udairam, and that the plaintiff-respondents were admitted as tenants by the mortgagees. It was, however, alleged in the plaint that the said land was cultivated by Ghisa alone in Smt. 2006 and both Ghisa and Ruda in Svt. 2007 and 2008 under Pattas from the mortgagees which would be produced at the time of enquiry. As against this the defendant-appellants averred in their written statement that the land had been given by the mortgagees to Ruda alone for the Svt. year 2008 only and that the latter had relinquished it immediately before it was redeemed by the mortgagors Pratap Singh etc. The pattas were not produced by the respondents and the lower courts did not give any finding on the point whether the respondents were year to year tenants or they were admitted for a fixed period, i. e. for Svt. 2008 only. The counsel for the respondents, however,admitted before us that he has nothing to show that the lease in favour of his clients was not for the fixed period of Smt. 2008 or that the contract of tenancy subsisted on the date of alleged dispossession. His contention however, is that even though the lease may be considered to have determined at the end of Svt. 2008, the appellants had no right to eject his clients without the intervention of the court and since the appellants had taken the law into their own hands and wrongly ejected them the respondents were entitled to relief under Sec. 184 of the Alwar State Revenue Code. The counsel for the appellants resisted this on the ground that whatever other remedy may be available to the plaintiff respondents against the alleged dispossession since they did not enjoy the status of 'tenant' vis-a-vis the appellant they were not entitled to relief under this section. This as observed by my learned colleague has raised an interesting law point which may be stated thus - "whether a person admitted by a mortgagee as a tenant for a fixed term which expired simultaneously with the redemption of mortgage, if disposed by the mortgagor on redemption is entitled to reinstatement under Sec. 184 of the Alwar State Revenue Code or not. " . My learned colleague is of the opinion that such a person is entitled to reinstatement under the said provision. He has referred to a ruling of the Supreme Court in Mahabir Gope and others (A. I. R. 1952, S. C. 205) in which it has been laid down that "a mortgagee during the subsistence of the mortgage cannot act in a manner detrimental to the mortgagors interest such as by giving a lease which may enable the tenant to acquire permanent, or occupancy rights in the land thereby defeating the mortgagor's right to 'khas' possession. A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether. It is an exception to the general rule. But the settlement of the mortgagee must have been a 'bona fide' one. "in the case before the Supreme Court since the tenancy was from month to month and it could not be proved that the mortgagee had not acted as a person of ordinary prudence it was ultimately held that the tenant did not automatically become a trespasser on the date of redemption of the mortgage, It is significant to note that in that case the contract between the mortgagee and the tenant still subsisted at the time of the redemption of the mortgage. The facts of the present case are however, materially different. It is admitted that the respondents held the land as tenants of the mortgagees only for a fixed period of one year i. e. for Smt. 2008 only. This contract of tenancy expired in the beginning of the following month of May which is the usual time for the termination of yearly contracts as laid down in S. 181 (5) of the Alwar State Revenue Code. It is also admitted that the mortgage had been redeemed by the appellant simultaneously with the experty of the lease. It is thus clear that the respondents had no title subsisting on the date of alleged dispossession to hold the land and tenants. The relevant portion of Sec. 184 of the Alwar State Revenue Code under which the suit was filed by the respondents reads as follows - 184. "in either of the following cases, viz - Relief for wrongful dispossession on ejectment. (a) If a tenant has been dispossessed without his consent of his tenancy or any part there of, other wise than in execution of a decree or than in pursuance of an order under Sec. 180 (1) (a) & (b), (b) If a tenant who not having instituted a suit under Sec. (1) of Sec. 181 has been ejected from his tenancy or any part there of in pursuance of an order under that Section, denies his liability to be ejected; the tenant may, with in one year from the date of his dispossession or ejectment institute a suit for recovery of possession of occupancy or compensation or for both. " The word 'tenant' has been defined in the Alwar State Revenue Code as "a person who holds land under another person. " This definition is, however, subject to the reservation "unless there is something repugnant in the subject or context. " The words 'another' in this section would,therefore mean 'the person entitled to admit a tenant', A person in possession of the land without a right to possess if cannot be held to 'hold' the land and is therfore not a tenant. While a person who has been in possession of the land with a right to possess holds the land and is a tenant within this definition. Thus in a suit for recovery of possession under this section, the first thing to be determined is whether the plaintiffs had right to possess the land and thus enjoyed the status of 'tenant. ' My learned colleague seems to be of the opinion that the remedy of Sec. 184 was available even to a trespasser if he Is dispossessed without recourse to law. For this view he relies on Sec. 180 of the Alwar State Revenue Code which lays down the procedure for the ejectment of tenants. With all due deference, I am unable to subscribe to this view. Sub-sec. 3 of Sec. 180 read with sub-sec. 1 (b) of the same section makes it abundantly clear that the procedure of notice has been provided only for a tenant who 'has not a right of occupancy and does not hold for a fixed term under a contract or decree or order of a competent authority. ' Sec. 176. (1) of the Alwar State Revenue Code lays down that "a tenant holding for a fixed term under a patta or a contract or decree or order of a competent authority may relinquish his tenancy without notice on the expiry of that term. " This clearly means that the procedure laid down in sec. 180 is not applicable to fixed tenancies' as they determine automatically by afflux of time and the terms of the contract in a tenancy of this kind are in themselves sufficient notice that the tenancy is to expire on a particular date. Sec. 80 is thus not relevant to this case. The only question which remains to be examined therefore,is whether a tenant of the mortgagee whose title as tenant does not subsist to hold the tenancy either under a contract with a mortgagee or with the mortgagor is entitled to the benefit of Sec. 184 of the Alwar State Revenue Code. As already observed such a person who has no contract of tenancy with the landlord or whose contract with the mortgagee had already expired before redemption, cannot by any stretch of imagination be considered to have the relationship of landlord and tenant with the mortgagor for the purposes of Sec. 184 of the Alwar State Revenue Code. No doubt it has been held by various High Courts in a number of cases that a bona fide contract of tenancy entered into by a mortgagee in the course of prudent management should be acceptable to the mortgagor on redemption but they have impliedly excluded mala fide settlements on expired tenancies from such consideration. In this case the period of fixed lease had already expired before the alleged dispossession and the plaintiff-respondent had no title to hold the land on the basis of that contract. Provisions analogous to Sec. 184 of the Alwar State Revenue Code are to be found in Sec. 183 of the U. P. Tenancy Act, 1939 and Sec. 50 of the Punjab Tenancy Act. In Ram Badh vs. Ram Pershad Singh, 1942, A. W. R. (R. R. D.) 80 and 1942 R. D. 173, it was held that in a suit under Sec. 183 of the U. P. Tenancy Act that it is incumbent on the plaintiff to prove that he was a tenant before he could succeed in his prayer for restoration of possession. As regards the Punjab Tenancy Act, although the wordings of Sec. 50 are more or less, identical to those of Sec. 184of the Alwar State Revenue Code, there is one distinguishing feature. Remedy under Sec. 50 of the Punjab Act was held to have been substituted for the remedy under Sec. 9 of the Specific Relief Act which has been expressly taken away by Sec. 51 of the Punjab Tenancy Act. In the Alwar State Revenue Code, there is no provision analogous to sec. 51 of the Punjab Act and the remedy under Sec. 9 of the Specific Relief Act is not barred to a person who seeks reinstatement on the basis of previous possession only. However, even under Sec. 50 of the Punjab Tenancy Act, it has been held in a number of cases that a person seeking remedy under that section must prove his title to hold that land as a' tenant. ' It is thus clear that a person seeking reinstatement under sec. 184 of the Alwar State Revenue Code should show that he enjoys the status of a tenant. In this case, the respondents failed to prove that they had any such title. In view of these observations, I am of the opinion that the appeal should be allowed, the judgments and decrees of the lower courts be set and the suit of the plaintiff-respondents dismissed. - This second appeal has been referred to me under Sec. 16 (11) of the Rajasthan Board of Revenue Ordinance 1946,as my two learned colleagues are divided in opinion as to the decision in the case. I have heard the counsel for the parties and have also gone through the record of the case. The facts of the case as also the legal points involved in this appeal have been fully discussed by my learned colleagues and hence they need not be repeated here. I shall deal only that point on which my colleagues have differed. The main point on which my learned colleagues have differed is whether the respondents should be considered as tenants or not. Shri Shyam Lalji has considered the respondents as tenants and as such he has held that they could not be ejected otherwise than by due process of law. To support his point of view he has quoted Sec. 181 (1) (b) of the Alwar Revenue Code according to which a tenant shall not be ejected otherwise than by a decree for ejectment except when a tenant has any right of occupancy and does not hold that for a fixed period under |a contract or order of a competent authority. Whereas my other learned colleague Shri Roop Narainji has held that the respondents are not tenants. I quote his arguments in his own words which run as under: - "a 'tenant' has been defined in the Alwar State Revenue Code as 'a person who holds land under another person'. This definition is however subject to the reservation 'unless there is something repugnant in the subject or context. The words 'another' in this section would, therefore mean the person entitled to admit a tenant. A person in possession of the land without a right to possess it cannot be held to 'hold' the land and is, therefore, not a leant. While a person who has been in possession of the land with a right to possess holds the land and is a tenant within this definition. Thus in a suit for recovery of possession under this section, the first thing to be determined is whether the plaintiff had a right to possess the land and thus enjoyed the status of 'tenant'. My learned colleague seems to be of the opinion that the remedy of sec. 184 was available even to a trespasser if he is dispossessed without recourse to law. For this view he relies on Sec. 180 of the Alwar State Revenue Code which lays down the procedure for the ejectment of tenants. With all due deference I am unable to subscribe to this view. Sub-sec. 3 of Sec 180 read with sub-sec. 1 (b) of the same section makes it abundantly clear that the procedure of notice has been provided only for a tenant who has not a right of occupancy and does not hold for a fixed term under a contract or decree or order of a competent authority. Sec. 176 (1) of the Alwar State Revenue Code lays down that 'a tenant holding for a fixed term under a Patta or a contract or decree or order of a competent authority may relinquish his tenancy without notice on the expiry of that term. This clearly means that the procedure laid down in Sec. 180 is not applicable to fixed tenancies as they determine automatically by afflux of time and the terms of the contract in a tenancy of this kind are in themselves sufficient notice that the tenancy is to expire on a particular date. Sec. 183 is thus not relevant to this case. "
(3.) I have given my careful though to the arguments advanced by both of my colleagues. It is an admitted fact that the respondents were holding the land in dispute under a lease for a fixed term from the usufructuary mortgagee. The mortgagee deed has not been produced hence it cannot be determined whether usufructuary mortgagee enjoyed the rights to lease or sub-let it, nor can it be know was the direction of the usufructuary mortgage. In the absence of such a deed and also in view of the face that the right to sub-let or lease out has not been disputed by the appellants, it shall be presumed that the mortgagee was fully justified in leasing out the land in question. Thus the respondents would be considered as tenants holding the land for a fixed term on a contract under another person. Under Sec. 176 (1) of the Alwar Revenue Code it is only a tenant who would relinquish his tenancy without notice at the end of his tenancy by himself. This Act nowhere provides that a tenancy would automatically and ipso facto terminate on the expiry of that term. On the other hand, it has been clearly laid down in the procedure for ejectment under Sec. 180 of the aforesaid Act that a tenant shall not be ejected otherwise than in execution of a decree for ejectment except in the following cases: - (a) When tenant has any right of occupancy and does not for a fixed term under a contract. Therefore, it is clear that the respondents who were holding the land under a contract for a ixed term could not have been ejected without the execution of a decree for ejectment. Since the appellants had no recourse to ejectment of the respondents by due process of law they were not justified in ejecting the respondents. The plea that the respondents had voluntarily surrendered the land is not sufficient to take possession of the land against the will of the respondents. Similar views were held in 29 Bombay 213 that a tenant holding over after the termination of the period of contract was dispossessed by the landlord without his consent. , Although the suit of the tenant was dismissed by the trial court yet in revision it was held by the High Court that the applicants were not liable to be ejected by the defendants and the decree was reversed and that he was entitled to a decree for possession. I, therefore, agree with the view of my learned colleague Shri Shyamlalji who has agree with concurrent findings of the lower courts. The appeal is, therefore, hereby rejected.;