HARDEI Vs. WAHID KHAN

JUDGEMENT

(1.) THIS case raises a very short point, that when a mortgage is redeemed, does the tenant, to whom the house had been let out by the mortgagee, become a trespasser from the date of redemption and can he be ejected as a trespasser, or must the mortgagor after redeeming the property take steps to eject him as a tenant? There is conflict of opinion on the point. It has been urged that the cases dealing with agricultural tenancies are distinguishable and do not apply to houses which have been let out to tenants. Piggott, J. however, in --'collector of Basti v. Sarnam charak', 8 All LJ 802 at p. 805 (A), held that there was no difference between an ordinary tenancy and an agricultural tenancy. In view of the conflict of decisions on the point it is desirable that this case may be decided by a larger Bench. I, therefore, refer it to a Bench for decision. The cases which have been quoted and which appear to be relevant and in favour of the appellant are: -- 'ram Chand v. Raj Hans', 3 All LJ 517 (B); -- 'adjoodhya Singh v. Girdharee', 2 N. W. P. (H. C, R.) 199 (C); -- ';alagiriswami Mudali v. Akkulu Naidu', AIR 1921 Mad 393 (D); and -' jhagru Mian v. Raghunath Singh', AIR 1929 Pat 630 (E ). The cases in which the other view seems to have been taken, besides the case decided by Piggott j. which I have already mentioned are: --'bhup Singh v. Sheo Shanker', AIR 1931 All 743 (1) (F); -- 'pramatha Nath v. Sashi Bhusan', AIR 1937 Cal 763 (G); -- 'chinnappa Thevan v. Pazhaniappa Pillai', AIR 1916 Mad 911 (H) and -- 'barjorji Shapurji v. Shripatprasadji', AIR 1927 Bom 145 (I ). Malik, C. J. This csse has been referred to a Division Bench by reason of some difference of opinion, but on an examination of the cases cited at the Bar, we do not think that the exact point raised in this case in fact arose for decision in the cases cited. The plaintiff, Srimati Hardel, had mortgaged a house and a shop appertaining thereto to one Nandlal; the mortgage was with possession. During the continuance of the mortgage the mortgagee let out the shop and the room appertaining thereto to Wahid Khan, defendant 1, as a month to month tenant. Defendant 2 is his son. The mortgage was redeemed in 1946. There is some dispute as to the date on which the mortgagor took possession of the property but the exact date of her having taken possession of the mortgaged property is not or much importance lor the purpose of decision of this appeal. The mortgagor, treating defendant 1 as a trespasser, gave him a notice to quit on 13-3-1948. As the defendant did not comply with the notice she brought the suit No. 422 of 1943 in the Court of the munsif, West Allahabad, out of which this appeal has arisen, for his ejectment from "the western shop and the room appertaining thereto in house No. 46 situate in Thatheri Bazar, Allahabad," and impleaded his sou Shaukat as defendant 2, so that there may be no complication after she had obtained the decree. The plaintiff also claimed damages for use and occupation at the rate of rs. 25/- per month from 27-11-1946, the date when she claimed to have got back possession of the property.

(2.) THE defendants in their written statements raised various pleas which gave rise to ten issues which were framed by the learned Munsiff. The first issue was "whether the tenancy of defendant 1 has terminated as alleged?" the importance of this issue, according to learned counsel, lies in the fact that, if defendant 1 became a trespasser on the redemption of the mortgage by the plaintiff, the Rent Control and eviction Act will not apply to him. That if, on the other hand, his position was not that of a trespasser but of a tenant on the date of the redemption of the mortgage, he was entitled to the benefit of the Rent Control and Eviction Act (U. P. Act 3 of 1947 ).

(3.) THE learned Munsif held that the defendant was a tenant and that he did not become a trespasser on the date of the redemption of the mortgage and, on that finding, he dismissed the suit without recording any finding on the other issues raised in the case.