RAMCHANDRA JAT Vs. SETH BHAWANIRAM

JUDGEMENT

(1.) 1. The respondent-defendant Seth Bhawaniram is a mortgagee in possession of the absolute occupancy field No. 80, area 39-15 acres, rent Rs. 45, situated in patti No. 1 of mauza Bhainsdehi in Seoni Malwa tahsil, while the appellant-plaintiff, Ramchandra, is the sadar lambardar of the village. The latter sued the former, in the Court of the Additional Subordinate Judge, for recovery of the second kist of Samwat 1982 with interest thereon and in default of payment for sale of the absolute occupancy holding. The Court of first instance awarded the claim in full. On an appeal being preferred by the defendant, Bhawaniram, the learned District Judge held that the relation between landlord and tenant did not exist between the parties to the suit and consequently the defendant, disputing his liability for payment of rent, could not be held liable to pay the arrears of the rent to the plaintiff. In this view he reversed the decree and dismissed the suit.

(2.) THE plaintiff has now come up in second appeal and it is urged on his behalf that the defendant being a mortgagee in possession was liable to pay rent to the lambardar and that in any event a decree for sale of the absolute occupancy holding should have been passed against the defendant. As regards the first part of this contention, it may be observed that I am not referred by the appellant's learned Counsel to any authority supporting his contention, nor am I aware of any case affirming the proposition of law to the effect that a mortgagee in possession of a holding can be legally held liable for payment of rent thereof. On the other hand the case Venkatrao v. Kohlu Gond [1900] 13 C.P.L.R. 19, quoted in the judgment under appeal, lays down that the relationship of landlord and tenant does not exist between a malguzar and a person taking a usufructuary mortgage from a tenant. It is either privity of contract or privity of estate which brings such relationship into existence. In the present case there is admittedly no privity of contract between the parties in regard to payment of rent. Even if there be a stipulation in the mortgage-deed for payment of rent by the mortgagee direct to the lambardar, it would bind only the parties to the transaction of the mortgage. It has no such binding effect as between the defendant and the lambardar who was not a party to the said transaction. Being not a party to the transaction the lambardar cannot avail himself of such a stipulation in the mortgage and insist upon payment of rent by the mortgagee. As regards the privity of estate it arises only when the whole of the tenant's interest in the holding is assigned and not where a subsidiary interest like that of a mortgagee is carved out of the tenant's interest. A sale of the holding would constitute such an assignment of the tenant's interest and would render the purchaser liable for payment of rent to the lambardar despite the absence of privity of contract : vide the observations of Wallis, C.J., in Thethalun v. Eralpad Rajah [1917] 40 Mad. 1111 and the case M.K. Saldanha v. Subraya Hebbara [1907] 30 Mad. 410. There being neither privity of contract nor privity of estate in the present case, the relationship of landlord and tenant cannot come into existence and the defendant cannot in consequence be held personally liable to pay rent to the lambardar. Voluntary payment of rent by the defendant to the lambardar would not per se fasten such a liability on the former. For all these reasons I hold, in concurrence with the learned District Judge, that the relationship of landlord and tenant does not exist between the plaintiff and the defendant in the present case and that the latter is consequently not liable for the rent sued for.