Judgment:
Sarojnei Saksena, J.
1. Plaintiff-petitioner has filed this revision against lower appellate Court's order dated November 16, 1995, whereby trial Court's order dated August 7, 1995 is affirmed, dismissing his petition filed under Order 39, Rules, 1 and 2 C.P.C.
2. Brief facts of the case are that the plaintiff filed a suit for permanent injunction alleging that he is occupying the suit land in the capacity of Gair Marusi tenant on payment of Rs. 1200/- in cash as land revenue. The defendants threatened to interfere in his possession and to evict him forcibly without any right, title or interest. Defendant No. 12 Om Parkash filed an application for ejectment of the plaintiff, which was dismissed on September 12, 1994.
3. Defendants 3 and 8 were given up by the plaintiff. Remaining defendants filed their written statement, but only defendants 10 to 15 filed reply to the injunction petition, which was adopted by the remaining defendants. The defendants averred that the ancestors of defendants 10 to 15 mortgaged the suit land in favour of ancestors of defendants 1 to 9. That mortgage now stands redeemed vide order dated April 19, 1995. Hence defendants 10 to 15 are entitled to take possession of the suit land in execution of the orders issued by the Collector. Defendants admitted that plaintiff is in possession of the suit land. In the revenue papers also plaintiffs possession was recorded as tenant Gair Marusi. The documents were placed on record showing that tenancy was created by the mortgagees in favour of the plaintiff. The plaintiff asserted that despite redemption of mortgage his tenancy created by the mortgagees does not extinguish automatically. He submitted that his possession is protected under section 9 of the Punjab Security of Land Tenures Act, 1953 (in short, the Act) and he can be evicted only on the ground specified therein.
4. The defendant-respondents submitted that on the redemption of the mortgage the tenancy created by the mortgagees in favour of the plaintiff automatically extinguishes. Respondents' counsel placed reliance on Jadavji Purshotam v. Dhami Navnitbhai Amaratlal and Ors., A.I.R. 1987 S.C. 2146.
5. The trial Court held that after the redemption of the mortgage, the tenancy created in favour of the plaintiff by the mortgagees does not subsist, hence the plaintiff has no prima facie case and the points of balance of convenience and irreparable injury are also not in his favour. Accordingly, plaintiff-petitioner's injunction petition was dismissed.
6. The lower appellate Court, in appeal, also observed that no doubt in the Jamabandi for the year 1988-89 plaintiffs possession over the suit property is shown as a tenant; respondent No. 8 is shown as mortgagor and respondents 1 to 7 are shown as mortgagees. The plaintiff concealed the fact of mortgage in the plaint Plaintiff-appellants' counsel relied on Ram Chand v. Randhir Singh and Ors., (1994-3)108 P.L.R. 605 (S.C), but the lower appellate Court distinguished this authority on the count that was a case under the Pre-emption Act. The lower appellate Court also relied on Jadavji Purshottam's case (supra) wherein it is held that mortgagee in possession was not empowered to create lease which would be binding on mortgagor after redemption of mortgage. Tenant inducted by the mortgagee is liable to be evicted on redemption of mortgage. On this premises the lower appellate Court held that the plaintiff has no right to remain in possession of the disputed land after the redemption of the mortgage. Thus, trial Court's order was affirmed.
7. The plaintiff-petitioner's learned counsel relied on Prabhu v. Ramdeo and Ors., A.I.R. 1966 S.C. 1721 and Ram Chand's case (supra) and contended that in Prabhu's case the Apex Court has considered the provisions of the Transfer of Property Act along with provisions of Sections 15, 161, 5(43) and 5(44) of Rajasthan Tenancy Act No. 3 of 1955 and held that rights of tenants inducted by mortgagee in possession under the provisions of the Transfer of Property Act may conceivably be improved by virtue of statutory provisions which may in the meanwhile come into operation. He also submitted that the plaintiff-petitioner's possession of the suit land is protected under section 9 of the Act and, therefore, he cannot be evicted by the defendants in execution of the decree of redemption which they have obtained against the mortgagees. Unless these defendants file a petition for his eviction under the provisions of section 9 of the Act, he cannot be evicted. The defendants have no right, title or interest to evict him forcibly. Of course in due course of law, they are entitled to evict him.
8. To my mind the submissions made by the plaintiff-petitioner's learned counsel are substantial and need consideration. Section 9 of the Act starts with a non-obstante clause. It reads as under :-
'9. LIABILITY OF TENANT TO BE EJECTED. (1) Notwithstanding anything contained in any other law for the time being in force no landowner shall be competent to eject a tenant except when such tenant. - '
Below that the grounds of eviction are enumerated.
9. Thus, it is obvious that after the enforcement of this Act with effect from April 15, 1953, the provisions of the Transfer of Property Act are inapplicable so far as land tenure leases are concerned.
10. Jadavji Purshotam's case (supra) is distinguishable on facts. That case was decided under the provisions of Sections 111, 76 and 98 of the Transfer of Property Act. In that case mortgagor mortgaged a house property with possession to mortgagee. Mortgagee inducted a tenant therein. Mortgaged property was redeemed. The Apex Court held that mortgagee in possession was not empowered to create lease which would be binding on mortgagor after redemption of mortgage. Hence tenant inducted by the mortgagee is liable to be evicted on redemption of mortgage. But this is a case of agriculture land tenure.
11. The Apex Court in Prabhu's case (supra) has held that rights of tenants inducted by mortgagee in possession under the provisions of Transfer of Property Act, 1882, may conceivably be improved by virtue of statutory provisions. This case was again considered by the Apex Court in Ram Chand's case (supra) wherein not only the provisions of the Punjab Pre-emption Act and Transfer of Property Act were considered, but even section 9 of the Act was considered. The Apex Court held :-
'The legal position with regard to the agricultural leases has also been settled by a five-judge Bench of this Hon'ble Court in Prabhu v. Ramdeo and Ors. A.I.R. 1966 S.C. 1721, by holding that person inducted into agricultural lands as tenants by a usufructory mortgagee who became entitled to protection under the tenancy laws, cannot be ejected by the mortgagor on the ground that the mortgage of the land had been redeemed. Even though that was a case in which the right of tenure accrued to the tenants after the creation of the lease but on principle it would not make a difference in so far as the present case is concerned, where the Punjab Security of Land Tenures Act giving protection to the tenants from ejectment, except on grounds mentioned in the statute, became available from 15th April, 1953 onwards, and the lease herein has been shown to have commenced with the agricultural year starting from 15th June, 1963, within a span of two months of that Act being enforced.'
12. The Apex Court held that persons inducted into agricultural land as tenant as by a usufructory mortgagee becomes entitled to protection under the provisions of section 9 of the Act. No doubt, in this case the provisions of Punjab Pre-emption Act were also considered because in the said case agricultural tenant was holding land under tenancy of vendor who sold a part of that land. The tenant filed a suit for pre-emption. The Apex Court held that such a tenant is entitled to pre-empt entire sale.
13. Thus, in my considered view, both the courts below have wrongly distinguished Ram Chand's case (supra), and have wrongly relied on Prabhu's (supra). The legal position is clear after the enforcement of the Act. Such a tenant who is inducted by a usufructory mortgagee gets his statutory rights under Section 9 of the Act and simply on the redemption of the mortgage, the mortgagors do not get a right to evict him straightaway without following the provisions of law.
14. Resultantly, the revision is hereby allowed. Lower Courts orders are set aside. Plaintiff-petitioner's injunction petition is also granted. The defendants are hereby restrained from evicting the plaintiff-petitioner in execution of the redemption decree, but they can evict the plaintiff-petitioner in due course of law.