- (1.) This second appeal under sec. 224(2) of the Rajasthan Tenancy Act (hereinafter referred to as the Act) has been filed by the defendants against whom the respondents suit for ejectment has been decreed by the lower appellate court after reversing the decree of the original court which had dismissed the suit.
(2.) We have heard the learned counsel for the parties and have examined the record as well. Put briefly the facts of the case are that the respondent created a usufructuary mortgage of the land in mortgage, that during the subsistence of the mortgage the appellants were admitted as tenants, the mortgage was eventually redeemed and thereafter the respondent brought this suit for ejectment on the ground that after redemption of the mortgage the appellants were liable to be treated as trespassers. The trial court held that the appellants were lawfully admitted as tenants and as such they could not be held as trespassers. The first appellate court took a different view and has referred to A.I.R., 1956, Supreme Court 305 for holding that after the redemption of the mortgage the appellants who were admitted as tenants by the mortgagees could not be held as tenants.
(3.) The main point involved for determination in the case is as to whether a tenant of agricultural land duly admitted by the mortgagee during the continuance of the mortgage would continue to hold the status of a tenant or not in accordance with the provisions of the Act after the redemption of the mortgage. The lower appellate court has referred to two decisions of the Supreme Court which lay down the law on the subject. It has, however, failed to appreciate the real contents of these decisions. In A.I.R. 1952 Supreme Court 205 Mahavir Gope and others vs. Harbans Narain Singh, their Lordships were pleased to observe as below : - - "Para 6. The general rule is that a person cannot by transfer or otherwise confer a better title on another than the himself has. A mortgagee cannot, therefore, create any 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. It follows that he may grant leases not extending beyond the period off the mortgage; any bases 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 mortgagors interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagors right to Khas possession It would be an act which would fall within the provisions of sec. 76 sub -cl.(e) of the Transfer of Property Act." "Para 7. A permissable 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 of 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." Supreme Today With All High Courts Page 1 of 2;