Enayatullah Mia vs Md. Saiyed Ali Sheikh and Others

G. Mehrotra, C.J.—This appeal is on behalf of the Defendant arising out of a suit for khas possession after redemption of the mortgage. The case of the Plaintiff is that pro forma Defendant Nasimuddin Seikh was an occupancy raiyat over 8 bighas of the suit land situated at village Nakuchi. mauza Bhabanipur in the Kamrup District covered by the Nispi Kheraj patta. On the 18th January 1949 Nasimuddin Seikh usufructuarily mortgaged the suit land along with other lands in favour of the Defendant Enayatullah Mia for Rs. 1500 for a period of seven years. Possession of the property was given to the mortgagee who was to retain the property for seven years and release it after the expiry of the said period.

Plaintiffs Nos. 1 to 6 purchased the suit land measuring 8 bighas from Nasimuddin by different sale deeds of different dates from 8-1-51 to 10-11-56. As Nasimuddin was temporarily absent from the place, the mortgagee Defendant taking advantage of that, took settlement of this property with himself from Sri Ajoy Kumar Mukherjee who was then in management of the land as landlord. In spite of the expiry of seven years the Defendant has not vacated the land and thus the present suit has been brought for possession of the property on the ground that the mortgage stands redeemed.

The defence taken by the main Defendant was that the suit land was not the occupancy tenancy land of Nasimuddim and he had thus no right to transfer the tenancy right. The Plaintiffs'' right to redeem under the purchase is denied. The Defendant''s case is that Nasimuddin was a tenant at will and defaulted in payment of rent and abandoned the land and left for Pakistan. The Defendant took settlement of the tenancy from the proprietor and has been possessing these 8 bighas on his own right and paying rent to the proprietor. The proforma Defendant Nasimuddin has supported the claim of the Plaintiffs. Both the courts decreed the suit.

The main point urged before me in second appeal was that the suit is barred by limitation. The contention is that the special limitation provided under Schedule 1, Part I Item 4 read with Section 125 of the Assam (Temporarily Settled Districts) Tenancy Act, 1935 (hereinafter called ''the Act'') is attracted. The period of limitation provided for under this section is two years from the date of dispossession. The special limitation provided for under the schedule will not apply to a case brought by the mortgagor for possession after redemption of the property against the mortgagee. That provision is attracted only when there is a dispossession by the landlord. The contention is that as the land was settled with the Defendant No. 1 by the landlord in the year 1357 B.S. from the date of settlement, the possession of the Defendant is on behalf of the landlord and thus the Plaintiff will be deemed to have been dispossessed by the landlord. In my opinion there is no force in this contention. Firstly, the suit being one for redemption as between the mortgagor and the mortgagee, the special limitation for possession by a tenant against the landlord will not apply in this case. Secondly special limitation is for possession when the Plaintiff has been dispossessed by the landlord. In the present case although the Plaintiffs obtained the sale deeds from Nasimuddin, the Plaintiffs never got actual possession over the property and so the question of their being dispossessed by the landlord by grant of settlement to the Defendant No. 1 does not arise at all.

Admittedly Nasimuddin who was a tenant, mortgaged his tenancy right to Defendant No. 1 and thus the possession of Defendant No. 1 is that of a mortgagee and unless it can be said that the mortgage came to an end either by operation of law or by act of the parties to the mortgage, the mortgagee cannot deny the right of the mortgagor to redeem the property. As pointed out by the Court below, whatever may have been the nature of Nasimuddin''s tenancy, whether he was an occupancy tenant or a raiyat, the transfer by him of'' his right is not void. It cannot be binding against the landlord unless his consent is obtained. But as between the mortgagor and the mortgagee, the transferee cannot be denied the right to redeem the mortgage on the ground that the transfer by the mortgagor to the Plaintiff''s was not with the consent of the landlord. The contention of the Appellant thus was that the Court below has wrongly held that it was for the Defendant to prove that the transfer was without consent. Apart from the question of the burden of proof, as I have indicated above, the mortgagee cannot say that a transferee from the mortgagor where the transfer is not absolutely prohibited, has got no right to redeem the mortgage as the transfer was without the consent of the landlord.

The next contention raised by the Appellant is that as Nasimuddin had abandoned the land, the landlord got a right to resettle the land u/s 73 of the Act Section 73(1) of the Act reads as follows:

If a raiyat or under-raiyat voluntarily abandons his usual residence in the village or the neighbourhood without notice to his landlord and, without arranging for payment of his rent as it falls due ceases to cultivate his holding, either by himself or by some other person, the landlord may at any time after the expiration of the agricultural year in which the raiyat or under-raiyat so abandons and ceases to cultivate, enter on the holding and let it to another tenant or take it into cultivation himself.

The case of the Defendant was that as there was default in payment of rent by Nasimuddin the Defendant paid up the arrears and got settlement from the landlord. This statement does not show that Nasimuddin had voluntarily abandoned his residence in the village without notice to his landlord and without arranging for payment of his rent that he ceased to cultivate his holding either by himself or by some other person. Further, it does not show that the landlord entered into the holding and then let it to the Defendant. When the Defendant as a mortgagee entered into possession of the land, it may be that the liability to pay the rent was of the Defendant himself and further that he was cultivating the land on behalf of the mortgagor. Under these circumstances it can not be said that the landlord got any right u/s 73 to settle the land with the dependant afresh. If the contention of the Defendant is admitted, then it will always be open to the mortgagee in possession to deprive the tenant of his tenancy right if the tenant happens to leave the place by committing default in the payment of rent and then paying the arrears and getting a fresh settlement from the landlord. Moreover the Defendant cannot deny the mortgagor right to redeem the property unless it can be said that the mortgage has come to an end. It is not a case where it is said that the mortgagor''s right merged into that of the mortgagee, so that the mortgage came to an end. The case of the Defendant is that he took a fresh settlement of the property. The mortgagee by getting a fresh settlement of the properly from the landlord, cannot wipe off the mortgage. As against the mortgagor if the mortgage subsists, he has to give back the property on redemption. It is urged lint the Court below was wrong in holding that non-payment of rent is a requirement of Section 73. The only requirement is that the tenant should leave the residence without making arrangement for the payment of the rent and if in the present case the tenant left the residence without making arrangement for the payment of the rent, he must be deemed to have abandoned the land u/s 73 of the Act. It is true that the Judge is not right in holding that unless it is shown that the rent was not paid, it cannot be said that the tenant had abandoned the land. But as I have already pointed out the right of the Plaintiffs to redeem the mortgage as transferees could not be defeated by the mortgagee who was in possession by his own act of non-payment of the rent and by taking a fresh settlement from the landlord.

In the result, therefore, there is no force in this appeal and it is rejected with cost.