CHAIN SINGH Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) One Moti Ram predecessor-in-interest of respondents Nos. 5 to 10 has filed a suit for possession and redemption of mortgage in the Court of Munsiff R. S. Pora, with respect to land measuring 6 Kanals comprised under Khasra No. 381. He alleged that the land in question was mortgaged for an amount of Rs. 250/-. The petitioner herein was a defendant in the said suit. The suit pending in the Court of Munsiff was transferred on 30-9-1978 to the Authority under the Restitution of Mortgaged Property Act. The Authority passed an order on 7-9-1992 redeeming the mortgaged property in question. An appeal was taken against the order of the Authority to Joint Financial Commissioner, Agrarian Reforms, which was dismissed. A revision was then preferred before respondent No. 3 J. and K. Special Tribunal, Jammu which was also dismissed on 7-4-1994. This writ petition has been filed challenging the orders of three Statutory authorities.

(2.) Only one ground was agitated before me i.e. that, according to Moti Ram, when the land was allegedly mortgaged, the present petitioner was a protected tenant, and unless the tenancy was annulled, no mortgage could come into existence. It appears, that this argument was made before the Tribunal also, but the Tribunal has rejected the argument on the ground that once the land was mortgaged, by implication the lease came to an end. Mr. Kohli submits that this is not the correct position of law; and the correct position of law has been laid down recently by the Supreme Court in a judgment entitled: Gopalan Krishnankutty v. Kunjamma Pillai Sarojini Amma, reported in AIR 1996 SO 1659. In this case the Supreme Court has held, as under :"6. The High Court, in the present case, proceeded on the erroneous assumption in law that surrender of the lease by the lessee (defendant) must be implied from the fact of execution of the usufructuary mortagage in his favour by the lessor (plaintiff). As indicated, this is an erroneous assumption in law. This question has to be decided on the contents of the deed since there is no other evidence of surrender of the lease by the defendant on execution of the mortgage. We find nothing in the mortgage deed (Annexure A-1) dated 18th July, 1974 read with the release deed of the same date to prove either an express or an implied surrender of the lease by the defendant in favour of the plaintiff on execution of the mortgage deed. Since there is no automatic merger of the interest of a lessee with trial of a mortgagee when the same person is the lessee as well as the mortgagee, in absence of proof of surrender of the lease by the defendant, on redemption of the mortgage, the plaintiff is not entitled automatically to recover possession of the leased premises. The defendant's right to continue in possession as a lessee, therefore; continues to subsist. "

(3.) According to Mr. Kohli, in view of the clear pronouncement of the Supreme Court, the order of the Tribunal on this count therefore cannot stand. But from the facts it appears that when the land was mortgaged, the petitioner was not a tenant. In this connection, I am relying on the extracts of the revenue record, on which the petitioner himself relies upon. He has been shown as a tenant of the land in question in Kharief 1959, and from Rabi 1960 till Kharief 1962; after 1962, the land has been shown under the self-cultivating possession of the owners, and in Kharief 1972 there is an entry that the land was mortgaged. So, the land in question was not under tenancy on the date when it was mortgaged. The tenancy had ceased after Kharief 1959, and from Rabi, 1960 the land had been in self-cultivating possession of the owner. The said revenue record has not been challenged in three different courts below, and in these proceedings under extraordinary writ jurisdiction, this Court is not going to look into the same, and therefore, this Court has to rely upon the revenue entries.