LAWS(MPH)-1961-1-41

ALADAD KHAN KALUKHAN Vs. KAZI NASARUDDIN

Decided On January 23, 1961
Aladad Khan Kalukhan Appellant
V/S
Kazi Nasaruddin Respondents

JUDGEMENT

(1.) THIS is an application in revision by the occupant of a house mortgaged by the opposite party claiming to be a lessee from the mortgagee which he took on a monthly basis, is liable to ejectment only in accordance with the Accommodation Control Act, 1955. After redeeming the mortgage, the opposite party (mortgagor) took out a writ for actual physical possession by removing the mortgagee or anybody else claiming through him on the premises. At this stage, the present applicant appeared before the Court, and describing himself to be the tenant inducted in due course of management by the mortgagee, prayed that the mortgagor should be given only symbolic possession and he should be allowed to continue as a tenant subject to his paying the rent as a tenant on a monthly basis. He urged that he could not be objected in the execution of the redemption decree though it was open to the mortgagor to bring a suit under the Accommodation Control Act; he asserts in effect that a lease granted by the mortgagor on a house was as good as a lease by the mortgagor himself, and the lessee was entitled to get all the benefits given by statute.

(2.) THE questions for decision are, firstly, whether the applicant can at all come up in revision and further, whether the act of the mortgagee in thus creating a tenancy ostensibily from month to month comes under Section 76 (a) or under sub -section (e); whether in this regard any distinction can be made between leases on houses and those on agricultural property such as have been the subject matter of the judicial decisions to be referred to in time.

(3.) IN this regard, the argument of the applicant is that the mortgagee has not created any permanent or a long term tenancy but has only given it on rent from month to month. It is by the operation of statute that the tenant has got a right to stay on subject to paying rent until he is objected by a suit in accordance with the Accommodation Control Act. Statute given this right; so it cannot be urged that the mortgagee has done any injury to the property. On the contrary, he should be deemed to have managed the property as a person of ordinary prudence managing his own property in the manner provided in Section 76 (a) of the Transfer of Property Act. In this connection, three rulings of the Supreme Court and in addition a Hyderabad ruling have been cited by the decree -holder -opposite party, while the applicant bases his case on a ruling of the Allahabad High Court.