SHIVLAL Vs. ABDUL HUSSAIN

JUDGEMENT

(1.) STAPLES , A.J.C. 1. Respondent 1, Seth Abdul Husein brought a suit against the appellants and the other respondent Abdul Rahmankhan for a declaration that he was the tenant or mortgagee in possession of certain tenancy lands in Mauza Bankhedi. He obtained a decree that he was a usufructuary mortgagee. On appeal that decree was set aside, but it was declared that the plaintiff was entitled to hold possession of the fields by virtue of a mortgage, which he had acquired by prescription. It appears that Rustomkhan and Kodukhan were the original tenants of the land and they surrendered it to the respondent Abdul Rahmankhan by an unregistered deed of surrender on 9th August 1910. Abdul Rahmankhan executed an unregistered usufructuary mortgage of the land in favour of the plaintiff-respondent Abdul Husein on 13th October 1910 for a consideration of Rs. 200. It was alleged that Abdul Rahmankhan, for a further consideration of Rs. 125 conferred the rights of an ordinary tenant upon Abdul Husein. In the patwari's papers, however, Abdul Husein continued to be recorded as a mortgagee in possession. At a partition of the village in 1918 the land in suit, however, fell to the share of the appellants Seth Sheolal and Seth Gopikisan, and they refused to accept rent from Abdul Husein and filed suits for arrears' of rent against Abdul Rahmankhan and obtained decrees. Two of those decrees were satisfied by Abdul Husein, but the appellants Sheolal and Gopikisan refused to accept the amount of the third decree from, him, and an application made by Abdul Husein to deposit the decretal amount was rejected. Accordingly Abdul Rahmankhan, the recorded tenant of the field was ejected by an order of the revenue Court on 19th August 1925. Abdul Husein therefore brought his suit for a declaration.

(2.) THE findings of fact arrived at by the lower appellate Court are that Abdul Rahmankhan mortgaged the fields to Abdul Husein on 13th October 1910 for Rs. 200 by an unregistered deed, which is on record as Ex. P-10, but that he did not lease the fields to him, as alleged, for a further sum of Rs. 125. The Judge further found that the mortgage was not a bogus one and that Abdul Rahmankhan received the consideration. He also found that, although Abdul Husein had been ejected by order of the Revenue Court in execution of the decree for arrears of rent, he remained in possession until the date of suit and that therefore he could sue for a declaration, and that by possession for so many years Abdul Husein had acquired the right of a mortgagee in possession by prescription. On these findings the District Judge has passed a decree that the plaintiff Abdul Husein is entitled to hold possession of the fields by virtue of the mortgage which he acquired by prescription, that in order to protect his right as such mortgagee he is entitled to pay rent of the fields or the arrears thereof and that the order of ejectment passed by the Revenue Court does not affect his right or possession. The other prayers of the plaintiff were dismissed. Accepting the findings of fact of the lower appellate Court about the mortgage and the possession of Abdul Husein, I am of opinion that the view of law taken by him with regard to the right acquired by Abdul Husein is incorrect, and further I am of opinion that, when the tenancy of Abdul Rahmankhan terminated by reason of the order of ejectment in the Revenue Court, the rights of Abdul Husein as a mortgagee from Abdul Rahmankhan also terminated. I will first consider the question as to what rights Abdul Husein could acquire by his mortgage from Abdul Rahmankhan and his possession. It has been found that the mortgage was an unregistered one, and further it may be noted, though this point does not seem to have been brought out in the judgment of the lower appellate Court, that the mortgage was voidable under the Tenancy Act of 1898, as it was a mortgage of occupancy land and was not consented to by the malguzar. Further, the lower appellate Court is wrong in holding that Abdul Husein could acquire the rights of a mortgagee in possession by prescription against the landlord. If, as has been held in Kanhayalal v. Dularsing (1912) 8 NLR 163, a tenancy cannot be acquired by prescription, it follows that any lesser right which depends for its existence on the tenancy cannot be acquired by prescription as against the landlord. Abdul Husein could no doubt acquire the rights of a mortgagee in possession by prescription against his mortgagor, i.e., Abdul Rahmankhan, and such rights would be good as against Abdul Rahmankhan and would subsist as long as the tenancy subsisted, but there would be no right as against the landlord and, if the tenancy came to an end, the right of a mortgagee acquired by Abdul Husein, which depended upon the tenancy, would also terminate. It has been held in Baldeoprasad v. Premnarain AIR 1932 Nag 107, after a review of several cases, that any transfer engrafted on the tenant right, whether by way of mortgage or sublease, and whether consented to by the landlord or not, comes to an end when the tenant's right itself is determined by operation of law. It would seem clear, then, on the strength of this decision that any rights that may have been acquired by Abdul Husein' against his mortgagor Abdul Rahmankhan would terminate when the tenancy terminated by the ejectment of Abdul Rahmankhan.