9911796707
TMI Blog1957 (11) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... In 1941, Ram Prashad, the surviving mortgagor, filed Suit No. 132 of 1941 for- redemption of the mortgage. The suit was contested, but it was eventually decreed, the amount due to the mortgagees being fixed at ₹ 1,860. Subsequent to the decree, Ram Prashad died leaving him surviving, the appellants herein, as his legal representatives. On September 6,1945, the amount due under the mortgage was paid by them and the mortgage was redeemed. When they sought to take possession of the suit properties, they were obstructed by Govind Sahai and Bhagwan Sahai, who claimed to have been admitted as tenants 988 by the mortgagees. Thereafter, the appellants filed the suit, out of which the present appeal arises, under s. 180 of the U. P. Tenancy Act No. XVII of 1939, hereinafter referred to as the Act, to eject them, treating them as trespassers. The defendants resisted the suit on various grounds, of which only one is now material. They claimed that they were not trespassers but hereditary tenants under the Act, and could not therefore be ejected, and Issue 2 was raised with reference to this plea. The Revenue Officer, Meerut, who tried the suit held on this Issue that as the lands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the mortgage deed which would prevent the mortgagees from settling the land, even though. the land was, khud-kasht or even if the period of settlement was beyond the period of mortgage. The mortgagees acted in the prudent management of the property settling the land on an economic rent. The action of the mortgagees was, therefore, binding on the mortgagors. Hence the Qabuliat was binding on the appellants. The appallents attack both these findings as incorrect. As regards the first Issue, their contention is that in view of the finding that the mortgagees had not executed any lease deed, Govind Sahai and Bhagwan Sahai could not claim the status of tenants solely on the strength of the Kabuliat executed by them on May 26, 1936, as that was merely a unilateral undertaking by them to cultivate. But the mort- gagees have given evidence that they accepted the Kabuliat and received rent as provided therein. There is, therefore, no substance in this objection, which must be overruled. The main controversy in this appeal relates to the finding on the second Issue. The appellants complain that the Board has merely repeated its previous 990 finding on the point without referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prudent owner could have got from the lands, and that will depend on proof of the net yield from the land and the ruling price of the produce at that time. The lessees have given no evidence on this point. One of the mortgagees stated that he and his brothers were themselves cultivating the lands till 1936, and that they then gave them on lease, because they were losing ₹ 50 to ₹ 100 per annum over the transaction. But he gave no particulars as to what the gross yield from the lands was, what the expenses of cultivation were, and what the price of the produce was. It is very difficult to believe that the tenants would have agreed to take over lands on the terms contained in the Kabuliat if, in fact, it was a losing concern. It is admitted by the mortgagee that the lessees made no complaint that they were working at a loss. His evidence on this point is vague and unconvincing, and we are not impressed by it. On the other hand, we have evidence which clinches the matter in favour of the appellants. It has been already stated that the Revenue Officer, Meerut granted a decree in favour of the appellants for ejectment. In execution of this decree, the appellants obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l grounds to justify it. Of that, there is no evidence. On the other hand, the uncontradicted evidence on the side of the appellants is that the lands have got facilities of canal irrigation, and are very fertile, and that it would not be economic to lease them to tenants. It also appears that the mortgagees created on the eve of redemption another lease, and that has been set aside on the ground that it was entered into with a view to defeat the mortgagors. Their action in leasing the lands to tenants on the terms set out in the Kabuliat is neither prudent nor bona fide, and on a consideration of the entire evidence, we are of opinion, differing from the Board, that the lease evidenced by the Kabuliat is not binding on the mortgagors. It was next contended by Mr. Sinha that even if the Kabuliat was not binding on the mortgagors, the respondents would, nevertheless, be hereditary tenants under the provisions of the U. P. Tenancy Act, 1939, and that the appellants would have no right to eject them, and he referred us to the provisions of the Act bearing on the question. Section 29(a) of the Act provides that every person who was at the commencement of the Act a tenant of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument lies in the assumption that Govind Sahai and Bhagwan Sahai became by virtue of the Kabuliat dated May 26, 1936, tenants for purposes of s.29(a) of the Act. The true scope of sub-s. (a) of s. 29 is that it posits that there is on the date of the commencement of the Act a person who is lawfully a tenant and proceeds to Confer on him certain rights. It is therefore a condition precedent to the application of this provision that the person must-have been admitted as tenant by a person who had the right to do so. Where, however, the person who purports to grant the lease has no authority to do so, whatever the rights inter se between the lessor and the lessee, as against the true owner the latter does not, in law, acquire the status of a tenant, and s. 29(a) has no application to him. Thus, if A is the owner of certain lands and B trespasses on them and grants a lease to C, sub-s. (a) of s. 29 does not operate to confer any rights on C as against A. The crucial question for determination, therefore, is whether the person who claims rights as a hereditary tenant under s. 29(a) was admitted as tenant by a person who had the right to do so. An owner will of course be entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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