SHER MUHAMMAD Versus AJAIB SULTAN
This appeal by special leave arises out of a pre-emption suit where the trial court, District Judge, and High Court concurrently decreed the respondent's suit based on a superior right of pre-emption as a collateral of the vendor. The core legal question was whether the appellant established a superior right to acquire the disputed land as a tenant under paragraph 25 of Martial Law Regulation No. 115. The Supreme Court held that after the creation of a subsequent oral mortgage between the parties, their erstwhile relationship of landlord and tenant was voluntarily terminated and replaced by a mortgagee-mortgagor relationship with different incidents. Consequently, at the time of the impugned sale, the appellant held the land as a mortgagee and not as a tenant, rendering paragraph 25 of Martial Law Regulation No. 115 inapplicable. The appeal was accordingly dismissed. The key principle laid down is that the creation of a mortgage between a landlord and tenant extinguishes the tenancy relationship, precluding the tenant from later claiming a tenant's right of pre-emption based on the former tenancy.
- Does the creation of a mortgage between a landlord and tenant terminate the tenancy relationship?
- Can a person holding land as a mortgagee invoke paragraph 25 of Martial Law Regulation No. 115 to claim a right of pre-emption as a tenant?
- Whether the relationship of landlord and tenant subsists after the execution of a mortgage between the same parties?
- Paragraph 25, Martial Law Regulation No.115
SAAD SAOOD JAN, J.‑‑ This appeal by special leave arises out of a pre‑emption suit brought by the respondent. The trial Court decreed the suit and its decree was affirmed by the District Judge, Campbellpur, in first appeal and by the High Court in second appeal.
2. The only question for consideration before us is whether the respondent had been able to establish a superior right to acquire the land in dispute vis‑a‑vis the appellant. Her claim was based on the assertion that she was a collateral of the vendor. At the trial, she was able to prove her assertion and now there is no controversy between the parties over her relationship with the vendor. On the other hand, the appellant alleged that he was a tenant in the land in dispute and by virtue of his status as such he enjoyed the first right of pre‑emption under paragraph 25 of Martial Law Regulation No.115; consequently, the right which the respondent asserted was of no avail against him. The learned District Judge and the trial Court concurrently held that the respondent was not a tenant in the land in dispute and their finding was maintained by the High Court.
3. The land in dispute measures about 80 kanals and 3 marlas. From Rabi 1968 to Rabi 1970, the appellant cultivated about 40 kanals of this land as tenant under the vendor on payment of half of the produce as batai. On 26‑6‑1970, the vendor mortgaged with him the right of cultivation in respect of the entire land for a sum of Rs.3,000. The mortgage was an oral one and was evidenced by a mutation attested on 15‑8‑1970. Under the terms of the mortgage the appellant undertook to pay 1/3rd of the produce to the mortgagor so long it was not redeemed. On 22‑6‑1974, the vendor sold the land to the appellant again by another oral transaction. The mutation in respect of the sale was attested on 12‑10‑1974.
4. There can be little doubt that after the creation of the mortgage, the parties voluntarily put an end to their erstwhile relationship of landlord and tenant and instead brought about a new relationship of mortgagor and mortgagee between themselves on altogether different terms and with different incidents. Thus, when on 12‑10‑1974 the impugned sale took place, the appellant was holding the land as a mortgagee and not as a tenant. He could not, therefore, invoke the provision of paragraph 25 of Martial Law Regulation No.115 to defeat the superior right of respondent. This appeal is without any merit and is dismissed. There will be no order as to costs.
M. Y.H./S‑125/5 Appeal dismissed.