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Consequently,the learned single Judge set aside the judgments and decrees of the trial court and the appellate court relating to the issue of tenancy raised by the defendants in the suit and remanded the case to the Civil Court (trial court) directing it to refer the issue of such tenancy to the Mamlatdar,Baroda for hi... |
It is the Judgment and Order of the learned single Judge of the High Court by which he allowed the Second Appeal and remanded the suit,which is appealed against in this Civil Appeal of the plaintiff as is stated at the outset FAC |
No controversy is raised in this appeal as regards the findings of the Civil Court that the deeds of mortgage executed by the plaintiff in respect of the suit properties were mortgages by conditional sale Ratio |
Specific case pleaded by the plaintiff in the plaint as regards possession of the suit properties held by tenants was that their possession which was with the plaintiff was given to defendant-l on the execution of the deeds of mortgage by conditional sale in his favour Ratio |
In any event,it was not the case of the plaintiff that defendant-l was a tenant of the suit properties and hc surrendered his possession of the suit properties either expressly or impliedly and the possession so obtained by the plaintiff was re-delivered to defendant-l in pursuance of the mortgages by conditional sale ... |
However,the arguments addressed before us on behalf of the plaintiff-appellant in support of the appeal by learned Senior Counsel Mr ARG |
S.K.Dholakia were these: That defendant-l ARG |
respondent-l although was in possession of the suit properties ARG |
agricultural lands at the time of execution of the deeds of mortgage by conditional sale in his favour because of the coming into existence of such mortgages there occurred merger of lease-hold rights of defendant-l in suit properties when he obtained those properties as mortgage security under the said mortgages and a... |
According 10 him a mortgagee in possession being a person who cannot be deemed to be a tenant under section 4 of the BT & AL Act it was not open to the defendants to claim that they were the tenants of suit properties and if that be so question of raising issue of tenancy by the Civil Court in the suit before it did no... |
In support thereof,he sought to place reliance on the decisions of this Court in Shah Mathuradas Maganlal and Co.v ARG |
Nagappa Shankarappa Malaga and Others 1976 Indlaw SC 400 and Gambangi Appalaswamy Naldu and Others v ARG |
Behara Venkataramanayya Patro ARG |
Even otherwise.it was argued by him that the Civil Court before whom the plaintiff had filed the suit for redemption of the suit properties could not have driven the plaintiff to the forum of Mamlatdar merely because the defendants had raised the plea that they were tenants of the suit properties -agricultural lands AR... |
According to him when the plaintiff had not admitted that the defendants were tenants of the suit properties,it was not open to the defendants to force the plaintiff who had a right to choose his forum to file a suit to go before another forum on the plea that jurisdiction lay before another forum,that is,Mamlatdar ARG |
In this regard support was sought from the decision of this Court in Raizada Topandas and Another v ARG |
M/s ARG |
Gorakhram Gokalchand.1963 Indlaw SC ARG |
379 He,therefore,urged that the High Court was not justified in upsetting the concurrent finding of the trial court and the appellate court that the defendants failed to prove their tenancy and remanding the case to the trial court directing it to refer the issue of tenancy to the Mamlatdar and stay the suit till the r... |
Hence,the Judgment and Order of the High Court,according to him,was liable to be interfered with and set aside ARG |
However,learned counsel appearing for the defendants -respondents sought to refute the arguments advanced on half of the plaintiff-appellant Ratio |
Questions which arise for our consideration and decision in the light of the aforesaid arguments of learned counsel for the contesting parties admit of their formulations thus: (1).Does the lease-hold of a tenant (lessee) in a property merge in mortgage security if the same property is given by the landlord (lessor) to... |
2).When a plea of tenancy is raised with regard to suit property,an agricultural land,by a defendant who claims to be a tenant of such property under the BT & AL Act and seeks a reference of that issue by the Civil Court to the Mamlatdar under that Act for obtaining a finding thereon,can the Civil Court decide such iss... |
As the said questions could be dealt with appropriately with reference to the statutory provisions which bear upon them,it would be convenient to advert to such statutory provisions here Ratio |
The Transfer of Property Act,1882 (TP Act) "111.A lease of immoveable property determines - (a STA |
b STA |
c STA |
d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right STA |
Bombay Tenancy and Agricultural Lands Act,1948(Bombay Tenancy and Agricultural Lands Act,1948 STA |
2.In STA |
this Act,unless there is anything repugnant in the subject or context,(18 STA |
tenant' means a person who holds land on lease and include - (a) A person who is deemed to be tenant trader section 4; (b) A person who is a protected tenant; and (c) A person who is a permanent tenant; and the word 'landlord' shall be construed accordingly STA |
4.A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not - (a) A member of the owner's family,or (b) A servant on wages payable in cash or kind but not in crop share or a hired labourer cultivatin... |
A mortgagee in possession STA |
70.For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar - (a STA |
To decide whether a person is an agriculturist; (b) To decide whether a person is a tenant or a protected tenant (or a permanent tenant); (c) To decide such other matters as may be referred to him by or under this 85.(1).No Civil Court shall have jurisdiction to settle,decide or deal with any question which is by or un... |
2).No order of the Mamlatdar,the Tribunal,the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court STA |
Section 85A,as it stood before the amendment of this Act by Gujarat Act No.5 of 1973 w.e.f.3rd March,1973 STA |
85A.(1).If any suit instituted in any Civil Court involves any issues which are required to be settled,decided or dealt with by any authority competent to settle,decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority STA |
the Civil Court shall stay the suit and refer such issues to such competent authority for determination STA |
2).On receipt of such reference from the Civil Court,the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto S... |
Section 85A,as it came into force after it was amended by Gujarat Act No.5 of 1973 w.e.f 3rd March,1973 STA |
85A.(i STA |
If any suit instituted,whether before or after the specified date,in any Civil' Court involves any issues which are required to be settled,decided or dealt with by any authority competent to settle,decide or deal with such issues.under this Act (hereinafter referred to as the 'competent authority STA |
We shall now proceed to deal with the aforesaid questions Ratio |
Question (1 Ratio |
Interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right because of section 11 l(d) of the T.P.Act Ratio |
What is enunciated in section 111 (d) of the T.P.Act cannot be doubted is the doctrine of merger Ratio |
Merger takes place when a lesser estate is merged or drowned in a greater estate Ratio |
Lease-hold held by a tenant or a lessee being a lesser estate and the right of reversion of the landlord (lessor) being a higher estate,the lessee's lease-hold right in respect of the property merges in reversion when that right of reversion,i.e.,the landlord's (lessor's) right of reversion comes to the tenant or lesse... |
When the landlord mortgages the lease-hold property of the tenant to the tenant himself,he does not part with the right of reversion which he has in respect of that property Ratio |
If that be so,merger of lease-hold estate in reversion cannot arise,inasmuch as,there cannot be any inconsistency or incompatibility in one person being the tenant and also the mortgagee of the same property,for in that event instead of the tenant paying rent to the landlord he may adjust it against the amount claimabl... |
Moreover,if a lessee of a property takes a mortgage of the sum property from the landlord,it would be unreasonable to attribute to a tenant the intention to surrender the tenancy and to invoke the sophisticated doctrine of implied surrender as has been held by the Gujarat High Court in Patel Atmaram Nathudas v Ratio |
Babubhai Keshavlal.1974 Indlaw GUJ 88 Ratio |
In the present case,as has already been pointed out by us,the plaintiff-appellant did not claim that the defendants or any of them were in possession of the suit properties as tenants and there was a surrender by them of the possession either expressly or impliedly as would make the Court to come to the conclusion that... |
If that be the position,there can be no bar for the defendants to claim the right to continue in possession of the suit properties as tenants under the BT Ratio |
AL Act even if the plaintiff could obtain a decree for redemption of the suit properties,which relief was sought in the suit Ratio |
The decision of this Court in Shah Mathuradas case 1976 Indlaw SC 400 (supra) and G.Appalaswamy case 1984 Indlaw SC 314 (supra) sought to be relied upon by learned counsel for the appellant -plaintiff in support of his arguments that there was a merger of the leasehold right of the tenant in the suit properties when he... |
Shah Mathuradas case 1976 Indlaw SC 400 (supra) was that where the respondent had executed a mortgage in favour of the appellant respecting a premises of which he was a tenant PRE |
It was agreed under the terms of the mortgage deed that no interest need be paid by the respondent since the premises,the possession of which was given to the tenant pursuant to the mortgage was to be enjoyed in lieu of interest payable on the mortgage Ratio |
When suit for redemption of the premises was filed by the respondent the appellant claimed,that after redemption,he was entitled to remain in possession of the premises because of the subsistence of his previous tenancy right Ratio |
This Court held that the mortgage deed established beyond doubt that there was no subsistence or continuation of lease in that there was delivery of possession by the tenant to the landlord immediately before the mortgage and redelivery of possession to the tenant of the premises made by the landlord was pursuant to th... |
Secondly,this Court held that the appellant was not entitled to retain after redemption possession of the mortgage-property by reason of his previous right to be in its possession as a tenant Ratio |
In the present case as we have pointed out earlier,when no surrender of possession of the suit properties had taken place before the coming into existence of mortgages in favour of the lessor -mortgagor,when no redelivery of possession had been given pursuant to the mortgage to the-tenant,the decision under considerati... |
Since the following observations in the said case confirm the view we have taken on non-merger,they can be excerpted: "For a merger to arise,it is necessary that a lesser estate and a higher estate should merge in one person at one and the same time and in the same right,and no interest in the property should remain ou... |
In the case of a lease the estate that is in the lessor is a reversion Ratio |
In the case of a mortgage the estate that is outstanding is the equity of redemption of the mortgagor Ratio |
Therefore,there cannot be a merger of lease and mortgage in respect of the same property since neither of them is a higher or lesser estate than the other Ratio |
Coming to G.Appalaswamy case 1984 Indlaw SC 314 (supra) which considered the question whether a sitting tenant who took property by a possessory or usufructuary mortgage in his favour was liable to deliver physical possession upon redemption to the mortgagor PRE |
former lessor).This Court dealing with the said question said that all depends upon whether there was an implied surrender of the lessee's rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor and only if an implied surrender of lossee's rights could be inferred then the mortgagor wou... |
Dealing with the question of non-merger this Court approved the ratio of the decision in Shah Mathuradas 1976 Indlaw SC 400 (supra) thus: "In our view there can be no merger of a lease and a mortgage,even where the two transactions are in respect of the same property PRE |
It is well-settled that.for a merger to arise,it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding PRE |
In the case of a lease,the estate that is outstanding in the lessor is the reversion; in the case of a mortgage,the estate that is outstanding is the equity of redemption of the mortgagor PRE |
Accordingly,there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other PRE |
Even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage,would be outstanding in the owner of the property and accordingly,there would not be a complete fusion of ... |
Hence,the lease-hold of a tenant (lessee) in a property does not merge in mortgage security of that property,even if it is given .to Ratio |
him by the landlord (lessor) on a mortgage by conditional sale as would debar the tenant from desisting the suit of the landlord mortgagor for recovery of possession of such property by obtaining decree for redemption of the mortgage Ratio |
Question (2 Ratio |
The argument which was strenuously advanced on behalf of the appellant -plaintiff was that in a suit for redemption filed by the mortgagor in a Civil Court in respect of property notwithstanding the plea of the defendants' claim that they were tenants of that property under the BT & AL Act and under the provisions of t... |
the suit only on the basis of the finding received from the Mamlatdar,the Civil Court itself can record its finding on the issue of tenancy and if the finding to be recorded had to go against the claim of tenancy,it would be permissible for the Civil Court to grant the decree for redemption sought by the plaintiff in t... |
Support was sought for the argument from the decision of this Court in Topandas case 1963 Indlaw SC 379 (supra ARG |
We find it difficult to accept the said argument and the aforesaid decision of this Court relied upon in support thereof can render no assistance Ratio |
The only question which arose for decision in Topandas case 1963 Indlaw SC 379 (supra) was whether on a proper interpretation of section 28 of the Bombay Rents,Hotel and Lodging House Rates Control Ratio |
Act,1947 Ratio |
the Rents Control Act",the Court of Small Causes Ratio |
Bombay had exclusive jurisdiction in dealing with the suit out of which the appeal had arisen Ratio |
There,the respondent -a partnership firm was in possession as a tenant of a shop at Mulji Jetha Market,Bombay Ratio |
It instituted a suit in the Bombay City Civil Court (not the Court of Small Causes,Bombay) praying for a declaration that it was in lawful possession of the shop and the appellants had no right to enter into or remain in possession of the shop and for grant of an injunction restraining the appellants from interfering w... |
The plaint averments were that appellant-1 (defendant-1) had appointed the respondent as his commission agent for the sale of the appellants' cloth in the shop in question Ratio |
The agreement was to remain in force for a period of four years Ratio |
Pursuant to the said agreement,the respondent had allowed the appellants,their family members,servants and agents to visit the shop only for the purpose of looking after the business of commission agency Ratio |
The appellants,despite being asked not to visit the shop after the expiry of the period in the concerned agreement,they continued to visit the shop and were preventing the respondent from having access to its various articles such as stock-in-trade,books of account,furniture,fixtures etc Ratio |
Thus according to the plaint,the appellants who .were merely licensees,had no right to enter into the shop after the expiry of the period of licence envisaged in the agreement Ratio |
The defence of the appellants (defendants) in substance was that the agreement on which reliance was placed by the respondents in their suit was a sham agreement and that the appellants in reality were the tenants of the shop and the relationship between the respondents and appellants was that of the landlord and tenan... |
The further plea taken in the written statement by the appellants was that as the question involved in the suit related to the possession of premises as between a landlord and his tenant,the Court of Small Causes,Bombay,alone had jurisdiction to try the suit ARG |
The appeal in this Court had arisen out of the finding recorded on that issue and in dealing with that matter this Court had.to consider the true effect of sub-section (1) of section 28 of the Rents Control Act to find whether it means that a defendant if raises a claim or question as to the existence of relationship o... |
Dealing with the matter this Court referred.to the general principle which covers the question of jurisdiction at the inception of suits which was not disputed,thus: "The plaintiff chooses his forum and files his suit Ratio |
If he establishes the correctness of his facts he will get his relief from the forum chosen Ratio |
If ...he frames his suit in a manner not warranted by the facts,and goes for his relief to a court which cannot grant him relief on the true facts,he will have his suit dismissed Ratio |
Then there will be no question of returning the plaint for presentation to the proper court,for the plaint,as framed,would not justify the other kind of court to grant him the relief Ratio |
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