VIJAY SINGH Vs. THE FINANCIAL COMMISSIONER

JUDGEMENT

(1.) WHETHER a mortgagee in possession can successfully maintain a suit/application for recovery of rent from the landlord/mortgagor is a question that needs determination in the present case.

(2.) BRIEF facts of the case would reveal that the petitioner herein filed suit for rent under the Punjab Tenancy Act, 1887 (hereinafter referred to as 'the Act of 1887') on 30.10.1979 in the Court of Assistant Collector Ist Grade, Jind, the fourth respondent herein, on the ground that respondents 5 to 9, owners of the land measuring 188 kanals 8 marlas, had mortgaged the said land with possession with the petitioner vide registered mortgage deed dated 4.6.1971. On 3.5.1972, additional mortgage with possession was created for an additional sum of Rs. 30,000/- under a registered mortgage deed. It was further the case of the petitioner that thereafter he leased out the land in dispute on 1/3rd Batai to respondents 3 to 9 from Kharif 1971, which was being cultivated by the respondents aforesaid but no batai was paid to the petitioner. In the manner aforesaid, the petitioner claimed Rs. 15,500/- on account of Batai from Rabi 1972 to Rabi 1974.

(3.) MR . Rajesh Chaudhary, learned counsel representing the petitioner, vehemently contends that orders, Annexures P-2 to P-4 cannot possibly be sustained as the only ground, on which order passed by the Assistant Collector Ist Grade, decreeing the suit of the petitioner has been set aside, is that there was no relationship of landlord and tenant between the parties and, therefore, suit for recovery of rent under Section 77 of the Act of 1887 was incompetent. Before I might determine the question in light of the contention raised by the learned counsel, it would be appropriate to mention that in inter-partes suit, civil Court returned a finding in favour of the plaintiff that the land was, indeed, mortgaged and the said mortgage was with possession. Civil litigation came about in civil suit filed by the respondents Gopi, Hari Nandan and Munshi challenging the two mortgage deeds, referred to above, on the ground that the same was an act of fraud and, in fact and reality, they had never mortgaged their land and despite that Vijay Singh, petitioner herein, was about to take forcible possession of the land. This suit was dismissed by learned trial Court and the appeal preferred by Gopi and others, as mentioned above, was dismissed by learned Additional District Judge, Jind on 20.7.1978. Paragraph 12 of the judgment of learned Additional District Judge reads thus :-