P L D 1957 (W (PLP)

KAIKAUS, J.‑

Abdullah Shah and others, the petitioners in this Civil Revision, obtained a decree against Humayon, son of Ahmad, Nur Ahmad and Waryam, who are pro‑forma respondents, for possession of certain land, and applied for execution of the decree. The officer who went to execute the warrant of possession reported that a part of the land was under the cultivation of certain tenants, but he did deliver possession to the decree‑holders. At this, Humayon son of Makhan, Ganda. Mughal, Muhammad, Baqar and Nura, the contesting respondents, put in an application under Order XXI, rule 100, contending that they were in possession as tenants, and that they could not, in view of the provisions of Order XXI, rule 36, be ejected in execution of this decree. The executing Court accepted this application holding that in accordance with the provisions of Order XXI, rule 36, actual possession of the land could not be granted to the decree‑holders and ordered that possession be restored to the contesting respondents. In this revision petition which has been filed by the decree‑holders it is contended that the order is not justified in law. The finding that at the time when possession was deliver ed to the decree‑holders the contesting respondents were in occupation of the land as tenants is not liable to be attacked in revision. The question for determination is: Is a tenant of a judgment‑debtor not liable to be ejected in execution of a decree passed against his landlord ? Quite apart from the provisions of Order XXI, rule 36, to which I will presently refer, a person cannot on principle be affected by a decree to which he is not a party. But if a person be in occupation of immovable property not in his own right, but on behalf of somebody else, any decree against the person in whose right he occupies would bind him, for, in so far as he occupies the property, he represents not himself but the person in whose right he occupies. The question of his own right to occupy the property in the face of a decree against the person on whose behalf he occupies does not arise at all. If for instance a decree is passed for possession of a house in which the judgment‑debtor is residing the members of the family or the servants of the judgment‑debtor who are living in the house can obviously be ejected in execution of the decree for their occupation is only on behalf of the judgment‑debtor. A decree for possession of immovable property against a person will bind all those who are in possession in the right of the judgment‑debtors, that is, oil his behalf, and who claim no personal right. This principle is recognised in rules 98 to 100 of 4Order XXI. Civil P. C., according to which no person who is in possession on behalf of the judgment‑debtor call resist delivery of possession. So the point to decide is whether a tenant holds on behalf of the landlord. We find it stated ill judgments relating to limitation and prescription that the possession of a tenant is the possession of the landlord. If this principle be correct, why should not the tenant be liable to ejectment in execution of a decree against the landlord ? On the other it should be clear that he cannot be so liable when we consider that he may be an occupancy tenant and it will be absurd to lay down that an occupancy tenant can be dispossessed without any opportunity of contest. The apparent conflict however between the principle that the possession of a tenant is the possession of a landlord and the proposition that he is not liable to ejectment has to be resolved. I proceed to do so. Jurisprudence classifies possession as immediate or mediate. Whenever a person has physical control for and on account of another, then his own possession is immediate while the person on whose behalf he holds has mediate possession. Possession of property through a servant or an agent is mediate possession. Immediate possession implies direct or personal control. Now this mediate possession is of three kinds : (1) when the immediate possessor claims no interest of his own and holds solely on behalf of the mediate possessor as and agent or a servant : (2) when the person in actual possession claims an interest of his own too but recognises the superior right of the mediate possessor to obtain direct possession of the object at any time, as a borrower or a tenant‑at‑will (I have explained later in this judgment what is a tenant‑at‑will). (3) when the person in immediate possession, though he admits the ownership and ultimate right to possession, of another, at the same time claims an interest and a right to keep possession for a period or till a condition is satisfied, as a tenant for a fixed term or a mortgagee with possession. As regards the first two kinds the possession of immediate possessor is on behalf of the mediate possessor for he does not claim a right to retain the object as against the mediate possessor and he would be liable to be ejected in execution of a decree against the mediate possessor. So far as the third kind is concerned, truly speaking, the immediate posses so holds partly on his own behalf and partly on behalf of the other. The content of possession is split up and to the extent that the immediate possessor claims a right in himself to retain possession even against the person from whom he derives his right he holds on his own behalf while the rest he holds on behalf of the other. The whole content of posses sion he does not hold for it is a necessary ingredient of the full extent of possession that the possessor should claim the right of an owner. As he recognises the ultimate right to possession of the owner and regards his own possession as only a kind of condition imposed on that right, or a detraction from the fullness of that right, the owner has to be regarded as a possessor. As the tenant falling in the third class holds partly on his own behalf and partly on behalf of the person from whom he derives title the result should be that to the extent that he holds on behalf of another he should be dispossessed and the extent that he holds on his own behalf he should not be dispossessed. That is the extent to which a decree can be executed against him. He cannot be physically dispossessed as recording to the terms of his tenancy he has right to continue in possession but the decree‑holder will get what is called proprietary or constructive possession. Jurisprudence was not bound to recognise the third kind of mediate possession or constructive possession, as possession at all. It is not a possession in fact but a possession in law. But this conception of possession has been developed in English Law through centuries and is now part of our system and we have only to state it. Let me add however that ample justification for this conception is forthcoming when questions relating to limitation and prescription have to be decided. I have mentioned above the case of a tenant‑at‑will. By a tenant‑at‑will is meant a tenant whose tenure (if tenure it can be called) is terminable at any moment at the will of the landlord. His possession is substantially that of a licensee. He can hardly be said to have an interest in the property for he is incapable of defending his possession against the land lord. It should be remembered, however, that a tenancy‑at -will is a rare occurrence. What we generally call a tenancy at‑will is really a yearly or monthly tenancy. Tenants of urban immovable property are generally tenants from month to month, whereas the tenants of agricultural land are, in accord ance with the Tenancy Acts, tenants from year to year. They can only be ejected at the end of an agricultural year. Contesting respondents are not tenants‑at‑will as the learned Civil judge has regarded them, but tenants from year to year. The conclusion I have reached on a consideration of the principles involved is supported by Order XXI, rule 36, Civil P. C., which runs:‑-- "Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some cons picious place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property. The conception of constructive possession has here been recognised by statute. This proclamation is regarded as putting the decree‑holder in possession. Rule 35 which relates to delivery of possession of a share similarly recognises construc tive possession. Learned counsel for the petitioners has relied upon Appa Rao v. Venkappa (AIR1931Mad,534) wherein it was held that a decree against a landlord cannot be executed against his tenant except where the tenant holds occupancy rights. The exception which the judgment makes in respect of the occupancy tenants will itself show that when the tenant has a right to possession he is not liable to be ejected in execution of the decree. The learned judge probably meant by tenants only tenant‑at‑will who can be ejected at any time without notice. I am unable to see any difference in principle between an occupancy tenant and tenant for a fixed term. If the tenant is entitled to hold the property against his landlord for whatever short a period, then to the extent of that time, he is not liable to be ejected in execution of decree against his landlord, for he has an interest adverse to his landlord which cannot be affected unless he is a party to the litigation. Advanath v. Krishna Prasad (AIR1949PC124) has not been referred to in arguments before me but it had been relied upon in the lower Court by learned counsel for the decree‑holders. The facts in this case were that a decree had been passed and in execution of the decree possession had been taken in accord ance with Order XXI, rule 36 because the tenant of the judgment‑debtor was in possession. In a second suit between the judgment‑debtor, the decree‑holder and the tenant, the judgment‑debtor claimed an estoppel on the ground that even after the execution of the decree, the tenant had continued to pay rent to him. This contention was rejected, their Lord ships having held that the possession of the judgment‑debtor had been effectively terminated when the decree was executed by delivery of symbolical possession. This case in no way helps the decree‑holders. Although the learned Civil judge was right in his conclu sion that a tenant was not liable to be ejected in execution of the decree against the landlord, there is one point which he has missed. The learned judge considered the status of the contesting respondents only with reference to Kharif 1956 and held that they were at that time tenants of the judgment debtor but he failed to take notice of the fact that in accord ance with section 52 of the Transfer of Property Act the principle underlying which is applicable to the present case no interest which is created during the pendency of the suit can affect any decree passed in the suit. It was necessary for the learned Civil Judge to consider whether the tenancy of the contesting respondents had not come into existence after the institution of the suit for possession. If it had come into existence after the institution of the suit (and from the entries in the revenue record that is the conclusion which one would prima facie reach), then the position of the contesting respondents could be only that of parties to a decree who are bound by the decree and the decree could be executed by their ejectment. If it were otherwise it would be possible to defeat a suit for possession of immovable property alto gether ‑by continuing to create tenancies during the pendency of the suits that may be filed to recover the property. A files a suit against B and during pendency of the suit B creates a tenancy in favour of C. When A files a suit for possession against C he creates a tenancy in favour of D and so on. A may never get possession of the property in dispute. Under the circumstances, this application in revision has to be accepted and the case has to be remanded to the learned Senior Civil judge with the direction that he should go into the question as to whether the interest of the contesting respondents did not come into existence during the pendency of the suit in which this decree for possession was passed. He should also go with care into the question as to what particular property is in the possession of which particular res pondent, for I am not clear whether the contesting respondents were in possession of the whole of the land with respect to which their application was accepted. This revision is accepted and the case remanded for deci sion afresh in the light of what is stated above but there is no order as to costs. Case remanded.