MAN SINGH Vs. SUBE SINGH

JUDGEMENT

(1.) This is an appeal under clause 10 of the Letters Patent against a judgment of a learned Single Judge dismissing an appeal against the decision of the Courts below by which the suit filed by the present appellants for a declaration that they were in possession of the land in dispute as tenant-at-will and were not liable to ejectment in execution of a decree for possession by redemption had been dismissed. Their was that they had entered into the possession of the land by virtue of a lease granted by Diwana and others who had mortgaged the land with possession in favour of Raghunath and others in 1925. Alternatively, they claimed that even if they were the tenants of the mortgagees, they were still entitled to the protection conferred by the various provisions of the Punjab Security of Land Tenures Act, 1953. It is unnecessary to mention the other facts which are fully set out in the judgment of the learned Single Judge.

(2.) The only point on which our decision is sought to be invited by the learned counsel for the appellants is whether by virtue of the provisions contained in Section 76(a) of the Transfer of Property Act, 1882, the appellants could be regarded its having become the tenants of the mortgagors even though the finding of the Courts below is that they were inducted as tenants by the mortgagees in possession. It was argued before the learned Single Judge that the lease of the land by the mortgagees in favour of the appellants was an act of good management and as such it was binding on the mortgagors. The same position has been advanced before us but the difficulty in the way of the appellants is that in the plaint it was nowhere alleged or averred that the mortgagees had created the tenancy bona fide as an act of good management. In Asa Ram v. Mst. Ram Kali, 1958 AIR(SC) 183 it has been laid down that any transfer of the property mortgaged by the mortgagees must cease, when the mortgage is redeemed. Section 76(a) of the Transfer of Property Act provides that a mortgagee in possession must manage the property as a person of ordinary prudence would manage if it were his own. Though on the language of the statute, this is an obligation cast on the mortgagee, the authorities have held that an agricultural lease created by him would be binding on the mortgagor even though the mortgage has been redeemed, provided it is of such a character that a prudent owner of property would enter into it in the usual course of management. This being in the nature of an exception, it is for the person who claims the benefit thereof, to strictly establish it. If the appellants in the present case wanted to take advantage of the exemption it was for them to plead and prove the facts which would have brought their case within the exemption. It was incumbent on them to show that the tenancy rights had been granted in their favour by the mortgagees in the same way as a prudent owner of the property would have done in the usual course of management. On that matter no plea was raised whatsoever. The learned Single Judge was, therefore, right in saying that the essential requirement for the application of Section 76(a) was not present in this case.

(3.) It is true that the trial Court seemed to consider that because the mortgagees were not prohibited from giving land to tenants if they liked and because they gave the same to the plaintiffs for cultivation as tenants-at-will, it followed that it was an act of prudent management. The learned District Judge, however, noticed that it was never pleaded firstly, that the mortgagees had any specific authority to let out the land and secondly, that it was a prudent act on their part. No issue was framed on the point. It seems to us that in the absence of any pleading or issue, the view taken by the learned Single Judge and the learned District Judge was unassailable.