# PRABHU v. RAMDEV & ORS

- **Citation:** [1966] 3 S.C.R. 676
- **Court:** Supreme Court of India
- **Decided:** 1966-02-28
- **Case number:** Civil Appeal No. 323 of 1963
- **Bench:** P. B. Gaje:-;Dragadkar, K. N. Wa~Choo, M. J-IIDAYATULLAll, B 1. C. Shah Asd S. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prabhu-v-ramdev-ors-3651
- **Pages:** 6

## Headnote

Transfer of Property Act (4 of 1882), s. 16(e)-Tenants inducted
by mortgagee-When ca11 continue in possession after tenninttion of
nrortgage.
The appellant's father created a usufructuary mortgage of the
land
m dispute and the mortgagee admitted the respondents as tenants. During
the continuance of the mortgage and while the respondents were in po!·
session as tenants, the Rajasthan Tenancy Act, 1955, came into ~orce.
lbe mortgage was eventually redeemed but the respondents con!lnued
in possession.
The appellant therefore sued for possession of the land
before the revenue authorities and the Board of Revenue in appeal, held
that by virtue of the provisions of s. 15 of the Act, the possessioo of
the respondents was unassailable, that they could be ejected, in view of
s. 161, only in accordance with the provisions of the Act, but that, none
of the iirounds available to the appellant had been proved.
The High
C.ourt d1Smissed the writ petition of the appellant challenging the Board's
decision.
In appeal to this Court, on the questi\'.ln whether the respondents could
be ejected on the ground that the mortgage had been redeemed,
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HFLD: A; a general rule under s. 76(e) of the Transfer of Property
E
Act, a mortgagee cannot create an interest in the mortgaged property
which will enure beyond the termination of his interest as mortgagee.
But the rights of the tenants inducted by the mortgagee may be improved
by virtue of statutory provisions which may meanwhile come into operation, and that was pr·,cisely what had happened in the present case.
During the continuance of the mortgage, s. 15 of Rajasthan Tenancy
Act came into operation and 1bat made the respondents Khatedars who
are entitled to claim the benefit of s. 161 of that Act.
[680 A-DJ
F
Mahabir Gope v. llarbans Narain Singh,
[1952) S.C.R. 775, explained.

## Text

PRABHU
v.
RAMDEV & ORS.
February 28, 1966
A
[P. B. GAJE:-;DRAGADKAR, c. J., K. N. WA~CHOO, M. J-IIDAYATULLAll,
B
1. C. SHAH ASD S. M. SIKRI, JJ.]
Transfer of Property Act (4 of 1882), s. 16(e)-Tenants inducted
by mortgagee-When ca11 continue in possession after tenninttion of
nrortgage.
The appellant's father created a usufructuary mortgage of the
land
m dispute and the mortgagee admitted the respondents as tenants. During
the continuance of the mortgage and while the respondents were in po!·
session as tenants, the Rajasthan Tenancy Act, 1955, came into ~orce.
lbe mortgage was eventually redeemed but the respondents con!lnued
in possession.
The appellant therefore sued for possession of the land
before the revenue authorities and the Board of Revenue in appeal, held
that by virtue of the provisions of s. 15 of the Act, the possessioo of
the respondents was unassailable, that they could be ejected, in view of
s. 161, only in accordance with the provisions of the Act, but that, none
of the iirounds available to the appellant had been proved.
The High
C.ourt d1Smissed the writ petition of the appellant challenging the Board's
decision.
In appeal to this Court, on the questi\'.ln whether the respondents could
be ejected on the ground that the mortgage had been redeemed,
c
D
HFLD: A; a general rule under s. 76(e) of the Transfer of Property
E
Act, a mortgagee cannot create an interest in the mortgaged property
which will enure beyond the termination of his interest as mortgagee.
But the rights of the tenants inducted by the mortgagee may be improved
by virtue of statutory provisions which may meanwhile come into operation, and that was pr·,cisely what had happened in the present case.
During the continuance of the mortgage, s. 15 of Rajasthan Tenancy
Act came into operation and 1bat made the respondents Khatedars who
are entitled to claim the benefit of s. 161 of that Act.
[680 A-DJ
F
Mahabir Gope v. llarbans Narain Singh,
[1952) S.C.R. 775, explained.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 323 of 1963.
Appeal by special leave from the judgment and order daled
October 20. 1961 of the Rajasthan High Court in D. B. Civil Writ
G
No.41 ofl959.
B. C. Misra and M. V. Goswami, for the appellant.
S. C. Agarwal, for respondent No. I.
R. N. Sachthcy. for respondents Nos. 4 and 5.
The judgment of the Court was delivered by
H
Gajendragadkar, C. J. The appellant Prabhu is the owner of
agricultural land hcarin!! Khasra Nos. 224, 215, 244, 299, 320, 506,
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PRABHU v. RAMDEV (Gajendragadkar, C.l.)
677
A
617 and 687 situated in village Nilakpur, Tehsil Behror, District
Alwar, in the State of Rajasthan. The appellant's father Jora had
executed a usufructuary mortgage of the said land in about 1936 for
a period of twenty years in favour of one Ganga Din. After the
expiry of the period prescribed by the said mortgage, the appellant
obtained a decree for redemption on July 16, 1956. This decree
B
declared that the mortgage and all encumbrances created by the
mortgagee or any person claiming under him were extinguished
and directed the mortgagee to deliver possession of the mortgaged
property to the appellant.
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It appears that during the continuance of the mortgage, the
mortgagee Ganga Din had let out the aforesaid land to respondents
I to 3 Ramdev, Yadram and Nathu respectively.
Meanwhile, on October 15, 1955 the Rajasthan Tenancy Act, 1955
(No. 3 of 1955) (hereinafter called 'the Act') had come into force.
On July 28, 1956, the appellant instituted the present suit for possession of the land in question against the three respondents. This
suit was tried by the Sub-Divisional Officer, Behror. In this suit
the appellant had alleged that after the redemption decree had
been passed in favour of the appellant, the respondents had in fact
delivered possession of the property to the appellant, but a few days
thereafter they had trespassed into the property and obtained its
possession wrongfully. This plea was resisted by the respondents
on the ground that they had not surrendered possession of the
property to the appellant as alleged by him and that under the relevant provisions of the Act they were entitled to remain in possession
of this property. On these pleadings the learned Sub-Divisional
Officer framed two issues. They were:
No. I. Whether the respondents are trespassers in
respect. of foe fields and are liable for ejectment; and
No. 2. to what relief, if any, the appellant is entitled to ?
He found that the respondent> were not trespassers as alleged by
the appellant and as such the appellant was not entitled to any relief.
Jn the result, the appellant's suit was dismissed.
Against this decision the appellant preferred an appeal before
the Additional Commissioner, Ajmer. The
appellate authority
reversed the finding of the trial court and held that the appellant
was entitled to eject the respondents. The respondents challenged
the correctness of this order by preferring a second appeal before
the Board of Revenue for Rajasthan, Ajmer. Their appeal succeeded and in consequence, the order passed by the appellate authority
was set aside and that passed by the trial judge was restored. The
Board has held that by virtue of the provisions of s. 15 of the Act,
the possession of the respondents 1~as unassailable and they could
678
SUPREME
COURT
REPORTS
[1966] 3 S.C.R.
be ejected only in accordance with the relevant section of the said
Act. Since none of the grounds av;1ilable to the appellant under
the Act had been proved, he was not entitled to a claim for cjectment.
The validity of the Board's decision was challenged hy the appellant by moving the Rajasthan High Court in its writ jurisdiction
under A rt. 226 of the Constitution.
It was urged hy the appellant
before the High Court that the order passed hy the Board was plainly
erroneous in Jaw and as such should be set aside. This petition,
however, failed and was dismissed by the High Court. It is against
this decision that the appellant has come to this Court by special
leave.
·
The relevant facts, in the light of which the question of law
raised before us by Mr. Misra on behalf of the appellant has to be
considered, arc no longer in dispute. The appellant's father created
a usufructuary mortgage of the land and during the continuance
of the said mortgage the respondents were admitted as tenants.
The mortgage was eventually redeemed and in spite of the redemption decree the respondents continued in possession of the land.
On these facts the question which arises for our decision is: whether
the respondents, who have been inducted into the land as tenants
by the usufructuary mortgagee, can be ejected by the appellant on
the ground that the mortgage in question has been redeemed. The
answer to this question depends upon the effect of s. 15 of the Act.
Before dealing with the specific provisions of the said section
we may refer to two definitions which are relevant. "Tenant" has
been defined bys. 5(4:1) of the Act as meaning a person hy whom rent
is or but for a contract, express or implied, would he payable and
except when the contrary intention appears, shall include a cotenant or a grove-holder or a village scrrnnt or a tenant of khudkasht or a mortgagee of tenancy rights but shall not include a grantee
at a favourable rate of rent or an ijaredar or a thekadar or a trespasser. That is how the definition stood at the relevant time. The
test prescribed by this definition is that the person can claim to be a
tenant if it is shown that rent is payable hy him in respect of the land.
That test is clearly satisfied by the three respondents in the present
case.
The nc.\t definition to which it is neccssarv to refer is that of a
trespasser. The appellant, in his present suit: has contended that
the respondents are trespassers. A •'trespasser" has heen defined
hy s. 5(44) of the Act as meaning a person who takes or retains
possession of unoccupied land without authority or who prevents
another person from occupying land duly let out to him. That is
how the definition read at the material time. It is plain that the
respondents do not fall within the definition of "trespasser" as
prescribed by this clause.
A
B
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PRABHU v. RAMDEV (Gajendragadkar, C.J.)
679•
Let us now refer to s. 15 as it stood at the relevant time. Section
15 provides, inter alia, that subject to the provisions of s.16 every
person who, at the commencement of this Act, is a tenant of land,
shall, subject to the provisions of this Act and subject further to
any contract not contrary to s. 4 be entitled to all the right conferred
and be subject to all the liabilities imposed on Khatedar tenants
under the Act. In other words, as soon ass. 15 came into operation
on October 15, 1955, the .Possession of the respondents, who had
been inducted into the Jana by the mortgagee was substantially altered and they became Khatedars by virtue of the statutory provisions
prescribed by s.15. Section 161 of the Act provides that no tenant
shall be ejected from his holding otherwise than in accordance with
the provisions of this Act. The position thus is clear that as soon
as the Act came into force the respondents were entitled to the
benefits of s.15 and cannot be ejected except under the provisions ox
the Act in view of s. 161.
It is because of these provisions that the
appellant was driven to make the plea that the respondents were
trespassers inasmuch as they had voluntarily surrendered possession
of the land to him after the redemption decree 'was passed and had
wrongfully entered into possessjon thereafter. That pica has not
been proved and the matter falls to be considered squarely within·
the provisions of ss.15 and 161 of the Act.
It is true thats. 183of the Act provides for the ejectment of a trespasser but that section
has no application to this case inasmuch as the respondents cannot
be held to be trespassers at all.
Mr. Misra, however, contends that there are two decisions of this.
Court which support his case that tenants introduced by the mortgagee during the continuanOe of the mortgage can have no claim to
remain in possession of the land after the mortgage itself has been
redeemed and he argues that the said principle would justify the
appellant's claim for ejecting the respondents in the present case.
In_ Mahabir Gape and Others v. Harbans Narain Singh and Others(!),
this Court has held that as a general rule a person cannot, by transfer
or otherwise, confer a better title on another than he himself had.
A mortgagee cannot, therefore, create an interest in the mortgaged
property which will enure beyond the termination of his interest as
mortgagee. In consequence any lease granted by a morgagee in
possession must come to an end at redemption.
A mortgagee,
cannot, during the subsistence of the mortgage, act in a manner
detrimental to the mortgagor's interests such as by giving a lease
which may enable the tenant to acquire permanent or occupancy
rights in the fields thereby defeating the mortgagor's right to khas
possession; such an act would fall within the provisions of s. 76, subclause (e) of the Transfer of Property Act. It is on these observations that Mr. Misra founds his argument.
(1) (1952] s.c.R. 775: A.LR. 1952 s.c. 205.

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PRABHU v. RAMDEV (Gajendragadkar, C.J.)
681
A
In the result, the view taken by the Board about the status of
the respondents is right and the High Court was, therefore, justified
in dismissing the appellant's writ petition filed before it. The appeal
therefore fails and is dismissed with costs. Costs in favour of
B
respondent No. 1.
Appeal dismissed.