Meharbansingh & Ors Vs.
Nareshsingh & Ors [1969] INSC 304 (27 October 1969)
27/10/1969 DUA, I.D.
DUA, I.D.
RAMASWAMI, V.
CITATION: 1971 AIR 77 1969 SCR (3) 18 1969
SCC (3) 542
CITATOR INFO :
D 1976 SC1121 (57) R 1980 SC 696 (1)
ACT:
Madhya Bharat Zamindari Abolition Act XIII of
1951-S. 4 (1) (f)--Proprietary rights vesting in State-Khud-kasht land allowed
to he retained in possession-Land whether khud-kasht have to be first gone
into--Notice to the State, necessity of.
HEADNOTE:
The appellant filed a suit for redemption of
a mortgage.
The lower courts decreed the suit. The High
Court held that in view of the provisions of the Madha Bharat Zamindari
Abolition Act XIII of 1951 the appellants were entitled to redeem the mortgage
but disentitled to get possession of the mortgaged land since under the Act the
proprietary rights including the right to possession vested in the State. In
appeal to this Court it was urged that High Court did not afford the appellants
an opportunity to show that the land in question was Khud-kasht and, therefore
in according with section 4 they were entitled to remain in possession thereof.
HELD : The precise question requiring
decision by the High Court in the present case was lost sight of and not
properly adverted to. Under the Act the proprietor, notwithstanding any other
consequences of the vesting in the State, is entitled to continue to retain
possession of his Khud-kasht land which is so recorded in the annual village
papers before the date of vesting.' In the present case both the contesting
parties claim for themselves actual possession of the land in dispute as
Khud-kasht and also assert that the relevant entries in the annual village
papers before the date of vesting showed them in such possession. On this basis
they both claim right to retain possession even against the State. These rival
controversial claims pressed by both the parties was the central question
involving proper appraisal of the material on the record and this basic dispute
had to be first adverted to and judicially determined and thereafter the Court
had to consider the applicability of the relevant provisions of Act XIII of
1951 to the facts found. As the question of vesting of title in the State was
also of vital importance it was fit and proper for the Courts below to have
issued notice to the State as well thereby enabling it to be impleaded as a
party, if it so desired. [25D-26B] Haji Sk. Subban v. Madho Rao, [1962] Supp. 1
S.C.R. 123, distinguished.
[The case was remitted to the High Court for a
fresh decision].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1438 of.1967.
Appeal by special leave from the judgment and
decree dated September 27, 1962 of the Madhya Pradesh High Court, Gwalior Bench
in Civil Appeal No. 310 of 1960.
S. T. Desai and P. C. Bhartari, for the
appellants.
19 B. C. Misra, Bhajan Ramrakhyani and Urmila
Kapoor,for respondents Nos. 1 to 4, 8 and 10 to 12.
The Judgment of the Court was delivered by
Dua, J. This is the plaintiffs' appeal by special leave from a common judgment
and decree of a learned Single Judge of the Madhya Pradesh High Court at
Gwalior dated September 27, 1962 partially allowing the defendants' second
appeal and dismissing that of the plaintiffs.
It is not necessary to state the detailed
facts of the case.
Facts necessary for the purpose of this
appeal alone may briefly be stated. In May, 1939 Ramle Singh and Jomdar Singh
created a mortgage of the suit land in favour of Munshi Singh for a sum of Rs.
2,242/14/-. It is said that in May, 1943 notice given by the mortgagors for
redemption of the mortgage was refused by the mortgagee. In June, 1943 the suit
giving rise to the present appeal was instituted for redemption of the
mortgage. Some other persons who were found to be in possession of the land,
claiming to be tenants, were also impleaded as defendants. On May 25, 1951
Madhya Bharat Zamindari Abolition Act XIII of 1951 was enforced. It appears
that an application to amend the plaint as a result of the new enactment was
disallowed by the trial Court, but on revision the Madhya Pradesh High Court by
its order dated October 10, 1955 reversed the order of the trial Court and
permitted the plaintiffs to amend the plaint. The pleadings after the amendment
gave rise to nearly 17 issues on the merits. On October 10, 1958 the suit was
decreed in respect of the relief for redemption but claim in regard to mesne
profits was disallowed.
Preliminary decree for redemption was
accordingly granted.
In the course of its judgment the trial Court
observed under issue No. 10 as follows :
"I have in preceding paras shown that as
per allegations in the written statements and the patwari papers, it appears
that the suit lands have been in possession of Hanumantsingh, Shambhoosingh,
khemsingh, Mansingh and' Namdassingh. It will be discussed later whether they
and descendants of Munshisingh are joint owners or not. Before abolition of
zamindari, the records show half of the suit lands as the Khundkasht of the
above defendants and half as the tenancy holding of Namdas (Kastkari). These
entries however do not confer any title on the parties. Their right to remain
in possession is limited i.e. till such time as the property is redeemed by the
mortgagers i.e. the plaintiffs. These entries or the rights shown therein
cannot prejudice the right of the plaintiffs." 20 The Court while deciding
issues Nos. 16 and 17 observed thus A "I have discussed these issues
earlier in a different context. I may briefly add that Abolition of Zamindari
Act does not affect the right of the plaintiffs to recover possession of lands
which were placed in possession of the mortgagees (1956, M.B.L.J. Rameshwar vs
Bhogiram). Defendants Hanumantsingh and others did not acquire possession of
the suit lands by virtue of the sale in favour of their father Daulat Singh
because they had purchased only an equity of redemption as, will appear from
the judgment in Civil Suit No. 21/2001 filed on record. Entries as Pacca
Krishak cannot affect the rights under the mortgage bond. I find
accordingly." Three appeals were presented in the District Court against
the. decree founded on this judgment, one of them being by the plaintiffs
challenging refusal by the trial Court to grant mesne profits. -In- October,
1960 the plaintiffs' appeal was partly allowed and mesne profits decreed from
the date of deposit of the mortgage amount in Court. The other two appeals were
dismissed. That Court disposed of all appeals by a common judgment and came to
the conclusion that the lands had been mortgaged with possession by Samle Singh
and Jomdar Singh with Munshi Singh and that they were under self-cultivation of
the plaintiffs before the mortgage, the mortgagees having come into possession
by reason of the mortgage. The matter was taken by the defendants to the High
Court on second appeal, the plaintiffs having also preferred an appeal in that.
Court against the decree of the first appellate Court declining to give full
relief claimed in regard to mesne profits. In the High Court also three appeals
were presented. The High Court partially allowed the defendants' appeal in view
of the provisions of the Madhya Bharat Zamindari Abolition Act XIII of 1951.
The plaintiffs were held entitled to redeem the mortgage by paying the mortgage
money but disentitled to get possession of the mortgaged land. The proprietary
rights including the right to get possession having vested in the State under
the aforesaid Act, the plaintiffs, according to the High Court, could only
claim compensation from the Government on the basis of their proprietary rights
after redeeming the mortgage by making payment of the mortgage money. In
support of this view the High Court relied on this Court's decision in Haji Sk.
Subhan v. Madho Rag(1), considering that decision to be decisive of the point
in issue. That decision, however, appears to us to be directly concerned with
the Madhya Pradesh Abolition of Proprietary Rights (Estates, Muhals, alienated
land) Act, 1950 (Madhya Pradesh Act 1 of 1951).
Before us the short question raised on behalf
of the appellants is that reliance on the Madhya Bharat Zamindari Abolition Act
XIII of (1) [1962] Supp. 1 S.C.R. 123.
2 1 1951 for the first time in the High Court
was improper and that in any event without affording an opportunity to the
appellants to show that the said Act did not apply to the case in hand, their
suit could not have been dismissed.
The submission is not wholly correct. There
was in fact an amendment of the plaint pursuant to the enactment of the Madhya
Bharat Abolition of Zamindari Act and additional issues were framed on the
amended pleadings., The parties and the courts were thus not ignorant of the
existence of the said Act on the statute book.
Turning to the Act in question, it was
brought on the statute book in 1951, as the preamble shows, in order "to
provide for the public purposes of the improvement of agriculture and financial
condition of agriculturists by abolition and acquisition, of the rights of
proprietors in villages, muhala, chaks or blocks settled on zamindari system
which is only a. system of,, keeping an intermediary between the State and the
tenants injurious to the betterment of agriculture as well as the
agriculturists in Madhya Bharat and for other matters connected
therewith," "Proprietor" as defined in s. 2(a) means, "as
respects a village, muhal or land settled on zamindari system, a person owning
whether in trust or for his own benefit such village, muhal or land and
includes (1) a Malguzar as defined in sub-clause (12) of section 2 of Qanoon
Mal, Gwalior State, Samvat 1983; and (2) as respects a chak or block a chakdar
or blockdar whose lease granted to him by the Government under any Act, Rule or
Circular relating to chaks and blocks, includes also, amongst its other
conditions, a condition that he shall acquire the proprietary rights in respect
of that chak or block when the conditions of the lease are fulfilled;
(3) the heir and successors in interest of a
proprietor;
Section 2(c) defines "Khud-kasht"
to mean "land cultivated by the Zamindar himself or through employees or
hired laborers and includes sir land." Sections 3 and 4 which occur in
Chapter II dealing "vesting of proprietary rights in the State"
provides as under :
"3. Vesting of proprietary rights in the
State.
(1) Save as otherwise provided in this Act
and subject to the provisions of section 8, on and from a date to be specified
by a notification by the Government in this behalf (hereinafter referred 22 to
as the date of vesting all proprietary rights in a village, muhal land, chak or
block in Madhya Bharat vesting in a proprietor of such village, Muhal, land,
chak or block as the case may be, or in a person having interest in such
proprietary right through the proprietor shall pass from such proprietor or
such other person, to and vest in the State free of all encumbrances.
(2) After issue of a notification under sub-
section (1)no right shall be acquired in or over the land to which the said
notification relates except by succession or under a decree or order of a Court
or under a grant or contract in writing made or entered into by or on behalf of
the Government; and no fresh clearings for cultivation or for any other purpose
shall be made in such land except in accordance with such rules as may be made
by the Government in this behalf.
(3) The Government may by notification published
in the Gazette vary the date specified under sub-section (1) at any time before
such date.
4. Consequences of the vesting of an estate
in the State.
(1) Save as otherwise provided in this Act
when the notification under section 3 in respect of any area has been published
in the gazette, then, notwithstanding anything contained in any contract, grant
or document or in any other law for the time being in force, the consequences
as hereinafter set forth shall from the beginning of the date specified in such
notification (hereinafter referred to as the date of vesting) ensue, namely :-
(a) all rights, title and interest of the proprietor in such area, including
land (cultivable, barren or Bir), forest, trees, fisheries, wells (other than
private wells) tanks, ponds, water channels ferries, path ways, village-sites,
hats and bazars and mela- grounds and in all sub-soil including rights, if any,
in mines and minerals, whether being worked or not shall cease and be vested in
the State free from all encumbrances;
23 (b) all grants and confirmation of title
of or to land in the property so vesting or of or to any right or privilege in
respect of such property or land revenue in respect thereof shall, whether
liable to resumption or not, determine;
(c) all rents and cesses in respect of any
holding in the property so vesting for any period after the date of vesting
which, but for such vesting would have been payable to the proprietor, shall
vest in the State and be payable to the Government and any payment made in
contravention of this clause shall not be a valid discharge of the person
liable to pay the same;
Explanation-=The word "Holding"
shall for the purpose of this clause be deemed to include also land given, on
behalf of the proprietor, to any person on rent for any purpose other than
cultivation-, (d) all arrears of revenue, cesses or other dues in respect of
any property so vesting and due by the proprietor for any period prior to the
date of vesting shall continue to be recoverable from such proprietor and may'
without prejudice to any other mode of recovery, be realised by deducting the
amount from the compensation money payable to such proprietor under Chapter V;
(e) The, interest of the proprietor so
acquired shall not be liable to attachment or sale in execution of any decree,
or other process of any court, civil or revenue, and any attachment existing at
the date of vesting or any order for attachment passed before such date shall,
subject to the provisions of section 73 of the Transfer- of Property Act, 1882,
cease to be in force.
(f) every mortgage with possession existing
on the property so vesting or part thereof on the date immediately preceding
the date of vesting shall, to the extent of the amount secured on such property
or part thereof be deemed without prejudice to the rights of the State under
section 3, to have been substituted by a simple mortgage.
24 (2) Notwithstanding anything contained in
subsection (1) the proprietor shall continue to. remain in possession of his
khud-kasht land, so recorded in the annual village papers before the date of
vesting.
(3) Nothing contained in sub-section ( 1 )
shall operate as bar to the recovery by the outgoing proprietor of any sum
which becomes due to him before the date of vesting in virtue of his
proprietary rights." A plain reading of these sections would show that all
rights, title and interests of the proprietors in the area notified were to
cease and were instead to vest in the State free from all encumbrances with
effect from the date of notification and after such vesting in the State every
mortgage with possession existing on the property so vested or part thereof on
the date immediately preceding the date of vesting, to the extent of the amount
secured on such property or part thereof, is to be deemed, without prejudice to
the right of the State under section 3 to have been substituted by a simple mortgage.
The proprietor, however, notwithstanding other consequences of the vesting in a
State, is entitled to continue to remain in possession of his khud-kasht land
which is so recorded in the annual village papers before the date of vesting.
Now it was clearly open to the plaintiffs to show that the land in question was
khud-kasht and, therefore, in accordance with s. 4 they were entitled to remain
in possession thereof.
On behalf of the appellants' also our
attention was invited to the decision of this Court in the case of Haji Sk. Subhan(1)
and specific reliance was placed on observations at page 139 of the report
which suggests that a person continuing in possession on the basis of entries
in the village papers, which had to be presumed to be correct, was not affected
by the Act. Reference was also made to the observation at page 142 of the
report where right to possess was upheld in favour of the party who had
obtained A declaration of being an owner in possession.
On behalf of the respondents reliance was
placed on Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad (2 , but that
decision does not deal with the Madhya Bharat Act which concerns. That is with
the U.P. Zamin-dari Abolition and Land Reforms Act 1 of 1951, the scheme of
which is not shown to be similar to that of the Madhya Bharat Act so far as it
concerns us in the present case. That decision is, therefore, of little
assistance in construing the Madhya Bharat Act. Another decision on which the
respondents' learned Advocate has placed reliance is Raja Sailendra Narayan
Bhaj Deo v. Kumar Jagat Kishore Prasad Narayan Singh(s) which again (1) [1962]
Supp. I S.C.R. 123.
(2) [1962] 2 S.C.R. 441.
(3) [1962] Supp. 2 S.C.R. 119.
25 deals with the Bihar Lands Reforms Act and
not with the Madhya Bharat Act. The scheme of the Bihar Act being also
dissimilar from that of the Madhya Bharat Act, this decision too cannot be of
much help.
The last decision relied on by Shri Mishra is
Suraj Ahir v. Prithinath Singh and others(1) which is concerned with the Bihar
Lands Reforms Act XXX of 1950 as amended by Act XVI of 1959. This decision is
equally unhelpful.
In our opinion the High Court was in error in
allowing the appeal before it and in dismissing the plaintiff-appellants' suit
for possession on the authority of this Court's decision in the case of Haji
Sk. Subhan(2). In the reported case the word "document" as occurring
in s. 4(1) of the M.P. Abolition of Proprietary Rights (M.P. Act 1 of 1951) was
construed to include a decree of the Court and it was held that the principle
that the executing Court cannot question the decree and has to execute it, had
no operation on the facts of that case, because the objection was not based on
the invalidity of the decree but on the effect of the aforesaid Act on the
rights of the decree holder proprietor, to retain possession. The facts of that
case were, therefore, different and so was the problem requiring solution. The
precise question requiring decision by the Court in the present case was lost
sight of and not properly adverted to. We are required in the present case to
consider the effect of s. 4(1) (f) of the M.P. Act XIll of 1951 on the rights
of the plaintiff-appellants to redeem the mortgage and secure possession of the
mortgaged land.
It may be pointed out that both the
contesting parties-the appellants and the respondents-before us claim for
themselves actual possession of the land in dispute as Khud- kashi and also
assert that the relevant entries in the annual village papers before the date
of vesting showed them in such possession. On this basis they both claim right
to retain possession even against the State. These rival controversial claims
pressed by both the parties was the central question involving proper appraisal
of material on the record and this basic dispute had to be first adverted to
and judicially determined and thereafter the Court had to consider the
applicability of the relevant provisions of the M.P. Act XIII of 1951 to the
facts found. As the question of vesting of title in the State was also of vital
importance it was, in our opinion, fit and proper for the Courts below to have
issued notice, to the State as well, thereby enabling it to be impleaded as a
party if it so desired. The approach of the High Court is erroneous and its decision
highly unsatisfactory. The controlling question seems to have been missed. We,
therefore, allow the appeal and remit the case back to the High Court for a
fresh decision of the- (1) A.I.R. 1963 S. C. 454.
Sup.Cl.170-3 (2) [1962] Supp. 1 S.C.P. 12?.
26 appeal after notice to the State and after
hearing it, in case it desires to be heard. It would also be open to the High
Court, if it considers just and proper, to implead the State and if necessary
to permit it to adduce evidence before the High Court or to remit the case to
the trial Court for that purpose. In the circumstances of the case, parties
would bear their own costs in this Court.
Y.P.
Appeal allowed.
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