Karnail Singh and ors. vs Kapur Singh and ors.

M.S. Liberhan, J.

This judgment will dispose of Letters Patent Appeals Nos. 922 of 1983 and 923 of 1985, as they arise out of the same suit.

By these appeals the appellants have assailed the judgment of the learned Single Judge decreeing the suit for possession by redempt on but restricting the delivery of physical possession.

Briefly, the claim of the appellants was that the land in dispute was owned by Mehanga Ram who mortgaged it with the Bank as a security for the loan obtained by him vide mortgage deed, dated July 4, 1958. The Bank obtained an award against Mehanga Ram from the Arbitrator and in its execution the rights of the Bank as mortgagee were sold and the same was purchased by defendants Kapur Singh and Tehal Singh on February 8, 1974. The sale certificate was issued in favour of the defendants. On may 15, 1975, Karnail Singh and Jarnail Singh purchased 68 Kanals 5 Marlas of land vide sale deed, Exhibit P1, from Mehanga Ram, Karnail Singh, Jarnail Singh and Mehanga Ram brought a suit for possession by redemption of the land in dispute on payment of Rs. 31,000/ the mortgage money. The defendants took various defences. However, the only defence that survived for consideration was that the defendants claimed to be in possession as tenants of the land in dispute prior to the mortgage in question.

The trial Court found that the land in dispute was purchased by the plaintiff''s and the plaintiff''s were entitled to the possession by redemption, as in Court auction the defendants had purchased only mortgagee rights. The defendants were not found to be tenants before the mortgage. Resultantly, decree for possession by redemption on payment of Rs. 31,000/ was passed. On March 2, 1977 a final decree for possession was passed.

The mortgagees preferred Regular First Appeal and the only finding challenged before the learned Single Judge was with respect to their being tenants on the land in dispute. It was claimed that they were tenants of the suit land prior to the mortgage. Consequently, they were entitled to retain the possession of suit land as tenants. Actual physical possession could not be delivered to the mortgagees in this redemption decree. The learned Single Judge reversed the findings of the trial Court and came to conclusion that the defendants were the tenants prior to the mortgage. Thus, the preliminary decree and the final decree were modified. The suit was decreed for redemption and the defendants were found to be entitled to the interest as the original mortgagee would have and the mortgagor would be entitled to the mesne profits between the date the auction purchaser got possession and the redemption. The case was remanded to the trial Court for accounting and passing the final decree.

The learned counsel for the appellants contended that the learned Single Judge has not correctly come to the conclusion and erroneously relied upon Exhibits D1 and D2 which do not create a lease in favour of the mortgagees prior to the mortgage; nor even thereafter. The view of the learned, Single Judge is erroneous and cannot be sustained. The learned counsel, after referring to Exhibit D1, argued that Mehanga Ram had not created any tenancy in favour of Kapur Singh vide Exhibit D1 and in favour of Kundan Singh vide Exhibit D2. Paramjit Singh is none else but the son of Kunda Singh. There is no privity of contract between Mehanga Ram or his vendees with Tehal Singh or Paramjit Singh. Exhibit D1 was executed on July 21, 1973. Reference was made to the statements of Mehanga Ram, Kapur Singh (DW1) and Amar Nath (DW3).

In our considered view, the findings of the learned Single Judge that the tenancy was created before the mortgage cannot be sustained. On a bare reading of Exhibit D1, it is clear that it was executed on July 21, 1973 between Kapur Singh and Mehanga Ram, wherein Mehanga Ram, claimed to be the owner of 47 kanals 14 marlas of land described by Khasra Numbers given in it out of which Mehanga Ram was alleged to have given about 39 kanals 14 marlas patta (loosely described as lease) for Kharif 1974 and Rabi 1975 to Kapur Singh. It was further stated therein that 4 kanals of land is with Romesh Kumar and another 8 kanals of land is with Rattan Singh. No land has been specified which is with Rattan Singh and which is with Romesh Kumar.

Taking up the total area, it comes to be more titan 51 kanals No specific Nos have been pointed out or given in Exhibit D1 which were alleged to have been leased out to Kapur Singh. Not only this the alleged agreement on the face of it is stated to be a transfer of interest of immovable property in future. It is well settled that tenancy can be created of a specified property and it cannot be a grant of lease in future. Construing Exhibit D1 read with the statements of the witnesses DW1, DW3 and PW5 Mehanga Ram, it would, be reasonable to infer that no possession was delivered to Kapur Singh before June, 15, 1974 when the alleged agreement of lease was to come into force, apart from the fact that there is no specific property to which a reference can be made with respect to creation of tenancy. Again, there is no dispute that the day the alleged agreement was to come into force, the defendants were already the mortgagees. Kapur Singh while appearing as DW1, has categorically stated that Mehanga Ram got the land vacated from the previous tenant and delivered possession at the time of creation of the lease. It is not understandable as to why a prudent person, in ordinary course of human conduct will deliver possession a year earlier when the lease was to commence from 1974. By reading the statements of the witnesses read with Ex. D1, it would be reasonable to infer that the tenancy was not created prior to the mortgage in question which admittedly had taken place in 1958 in favour or the Bank in whose footsteps the defendants have stepped in as having purchased the mortgagee rights in an auction. The burden of proving that they became the tenants prior to the mortgage was on them. They having failed to discharge the burden cannot claim to be the tenants prior to the mortgage. We are of the considered view that the defendantmortgagees were not the tenants of the land in dispute prior to the mortgage.

Similarly, there was no privily of contract between Mehanga Ram and Kapur Singh. Ex. D2 is a lease created by one Kundan Singh in favour of Paramjit Singh, son of Tehal Singh apart from the fact that it suffers from the same defects as have been pointed out with respect to Ex. D1.

In view of our above observations, the findings of the learned Single Judge are not tenable and cannot be sustained. The same are hereby set aside. The findings of the trial Court to the effect that the mortgagees were not the tenants before the mortgage are affirmed.

For the reasons recorded above, Letters Patent Appeals No. 922 and 923 of 1985 are allowed and the judgment and decree of the learned Single Judge are set aside and those of the trial Court are restored.

At this stage, the learned counsel for the appellants brought to our notice that the money for redemption was deposited in Fixed Deposit Receipts. A suitable direction has to be given with respect to the interest earned on the said Fixed Deposit Receipts as the respondentsmortgagees cannot be permitted to usurp the masne profits as well as the interest payable on the Fixed Deposit Receipts. It is quite equitable that the interest earned on the Fixed Deposit Receipts is paid to the plaintiffs as the mortgagees being in possession have earned the mesne profits during this period. The mortgagees shall be at liberty to withdraw the amount found due to them in the final decree passed.

The appeals ate deposed of in the above terms, with no order as to costs.