Mishri
Lal Vs. Dhirendra Nath & Ors [1999] INSC 126 (6 April 1999)
Umesh C. Banerjee, M. Jagannadha Rao BANERJEE,J.
This
appeal is directed against the order of the Madhya Pradesh High Court
confirming the preliminary decree passed by the trial court and allowing the
plaintiffs' claim for redemption in respect of mortgaged houses and khudkasht
land. 2. The contextual facts record that the defendant-mortgagee has
challenged the right of the plaintiff-mortgagor to redeem assorted items of
property which were mortgaged prior to the enactment of the Madhya Bharat Zamindari
Abolition Act, 1951 (Samvat 2008). The learned trial judge decreed the suit and
the appeal therefrom however before the learned single judge resulted in an
order of reference before a Division Bench by reason of expression of a view
contra, by another Single Judge of Indore Bench in second appeal No.498 of
1965, (Yakub son of Kasamji v. Yakub son of Fakir Mohammad & Ors.) 3. On
however a detail analysis of facts it appears that the plaintiff- respondent
being the Zamindar of village Kamalpur, during the subsistence of the Zamindari,
executed two mortgage-deeds dated 4.8.1947 and 5.1.1948 in favour of the
defendant-appellant for securing thereunder a loan against movable property and
houses, Zamindari and Khudkasht lands. The possession of the mortgaged property
as the record shows was delivered to the mortgagee-defendant and in a suit
filed for redemption of the mortgage, the trial court as noted above decreed
the suit with an express finding that the plaintiff was entitled to redeem the
mortgage. 4. Be it noted here that the Madhya Bharat Zamindari Abolition Act
has been engrafted into the statute book for acquisition of rights of
proprietors in villages, Muhals, Chaks or blocks settled on Zamindari system so
as to subserve the public purposes of the improvement of agriculture and
financial condition of agriculturists and came into force on 25th June, 1951. 5. Section 2c, defined "Khudkasht
land" meaning thereby land cultivated by Zamindar himself or through
employees or hired labourers and includes `sir' land. Section 3 of the Act
provides for vesting of the proprietary rights in the State and Section 4
records the consequence of vesting of an estate in the State. Section 4 (27)
provides that notwithstanding anything contained in sub-section (1) the
proprietor shall continue to remain in possession of his Khudkasht land so
recorded in the annual village papers before the date of vesting. 6. It,
therefore, appears that that there is a categorical expression of statutory
intent that the land which has not been recorded as Khudkasht land is liable to
vest in the State. Conversly thus, the intent of the legislature is loud enough
to indicate that while Zamindari or intermediary interest was being abolished,
due care has been taken to protect the Khudkasht land and allowed the
subsisting interest of the Zamindar to continue so as to enable the Zamindar
either to cultivate himself or through employees or hired labourers and in that
event the same would be out of contemplation of the statute. The statute has
put an embargo even on the mortgagee of Khudkasht land. As a matter of fact the
Act read as a whole suggests that the mortgagee would not be able to upgrade
his entitlement or status and the possession of Khudkasht land stands
transferred from him to the Zamindar by operation of law.
Section
4 and various sub-sections thereunder read with Sections 5 and 6 categorically
depict the same and it is on this aspect of the matter we lend our concurrence
to the observation of the High Court to the following effect:- "A
mortgagee's interest in the mortgaged Khudkasht land is not allowed to blossom
into larger interest of ownership or of indefeasible right to possess the land
in virtue of the advent of the new land tenure system.".
7. The
definition section as noticed above and in particular the definition of the
word "Proprietor" means a person as respects a village, muhal or land
settled on Zamindari system owning whether in trust or for his own benefit,
such village, muhal or land. The definition of "Khudkasht" under
Section 2c referring therein land cultivated by the Zamindar himself or through
employees or hired labourers, read with section 4(2), makes it abundantly clear
that Section 2 (a) cannot but mean that it is the Zamindar or Proprietor only
who has been allowed by the statute to obtain the benefit. The mortgagee cannot
be allowed to claim a better title by reason of the provisions as noted above
than he has prior to the enactment of the statute. 8. As regards the Yakub's
case the High Court in paragraph 13 of the Judgment observed:- "True, for
the view taken in Yakub's case (supra) reliance is placed mainly by the learned
single judge, on a decision rendered by another learned single judge of this
court in Bhagwant v. Ramchandra
(1961 JLJ 286). In that decision also, a simplistic view of the definition was
taken and relying on Section 2(a)(a) read with sub-clause (2) of section 2 of Qanoon
Mal, Gwalior State, the rights of Zamindar/proprietor were subrogated to that
of his mortgagee and the latter was even held entitled under Section 38 to
claim to be a "Pakka tenant" and thereby to keep alive his interest
in the mortgaged "Khudkasht" land in direct opposition to the object
and purpose of Section 4(1)(f). Reference was also made in Yakub's' case
(supra) to a Bench decision of this Court in Khumansingh v. Dhansingh (1971 RN
351), but, in our opinion, reliance thereon was misconceived. In that case, it
was held that in "Z.A. Act" emphasis was on actual cultivation of the
"Khudkasht" lands and not on entry ("so recorded") in the
revenue record, while construing Sections 2(c) and 4(2) of the said Act. The
scope and object of Section 4(1)(f) did not come up for consideration of their
Lordships in that case. Although reference was also made in Yakub's case to
another Bench decision of this Court, Chaturbhuj v. Mohanlal (1961 RN 182),
that was also not a case of a mortgagee versus Zamindar and in that case,
construction of the provisions merely of Sections 4(2) and 2(c) has to be
read."
9.
This aspect of the matter, however, has been dealt with by this Court in the
case of Meharban Singh v. Naresh Singh (AIR 1971 SC 77) wherein this Court in
paragraph 8 observed:- "8. A plain reading of these sections would show
that all rights, title and interest 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 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 khudkasht 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 khudkasht
and, therefore, in accordance with Section 4, they were entitled to remain in
possession thereof."
10. Mr.
S.K. Jain, appearing in support of the appeal however contended that subsequent
to the decision in Meharban Singh's case this Court in the case of Budha v. Amilal
(1990 (4) JT, 804) expressed a different view and by reason of divergence of
views this matter ought to be referred to a larger Bench for resolution and
enunciation of the law on the subject. For convenience sake the observation of
this Court in Budha's case (supra) is set out herein below:- "14. Even if
it is assumed that the lands in dispute have to be treated as Khudkasht lands
of the appellant by virtue of clause (i) of the inclusive part of the
definition of `Khudkasht' contained in Section 5(23) of the Rajasthan Tenancy
Act, the appellant cannot succeed in his claim that he has acquired Khatedari
rights in respect of those lands on the basis of the provisions contained in
sub- section (4) of Section 5 and sub-section (1) of section 29 of the Act.
Sub-section
(4) of Section 5 provides that notwithstanding anything contained in
sub-section (2) of Section 5 the Zamindar or Biswedar shall subject to the
provisions of Section 29, continue to retain the possession of his Khudkasht,
recorded as such in the annual registers before the date of vesting. The words
"continue to retain the possession", imply that lands which are
recorded as Khudkasht in the annual register before the date of vesting should
also be in possession of the Zamindar or Biswedar on the date of vesting and if
he is in possession of such lands he can continue to retain the possession of
the same subject to the provisions of of Section 29. Sub-section (1) of Section
29 prescribes that as from the date of vesting of an estate, the Zamindar or Biswedar
thereof shall be a malik of any Khudkasht land in his occupation on such date
and shall, as such malik, be entitled to all the rights conferred and subject
to all the liabilities imposed on a Khatedar tenant by or under the Rajasthan
Tenancy Act. Under this provision Khatedri rights have been conferred on a Zamindar
or Biswedar as from the date of the vesting of the estate in respect of Khudkasht
lands in the occupation of such Zamindar or Biswedar on such date. The words
"in his occupation on such date" postulates that the lands, though Khudkasht,
should be in the occupation of the Zamindar or Biswedar on the date of vesting
of the estate. It would thus appear that in view of sub-section (4) of Section
5 and sub-section (1) of Section 29 of the Act the mere fact of recording of
the land as Khudkasht in the settlement records on the date of vesting would
not be enough for a Zamindar or Biswedar to acquire Khatedari rights over the
said lands and it is further required that the Zamindar or Biswedar should be
in possession/occupation of the said lands on the date of vesting of the estate
under the Act. The possession/occupation envisaged by sub- section (4) of
Section 5 and sub-section (1) of Section 29 of the Act is actual
possession/occupation and the possession of a mortgagor through the mortgagee
cannot be held to be possession or occupation as postulated in sub-section (4)
of Section 5 and sub-section (1) of Section 29 of the Act.
15. In
the present case the appellant has come forward with a specific case in the
plaint that the defendant is in possession of the lands in dispute as a mortgagee
from the date of the two mortgagees. In other words the appellant was not in
possession /occupation of the said lands on the date of vesting of the estate
of the appellant under the Act. The appellant cannot, therefore, claim Khatedari
rights in respect of the lands in dispute."
11.
Incidentally, be it noted that the decision in Budha's case (supra) was on
interpretation of Rajasthan Zamindari and Biswedari Abolition Act, 1959 whereas
Madhya Bharat Zamindari Abolition Act, 1951 came up for consideration in Meharbansingh's
case. The later decision of this Court in Budha's case (supra) however has not
noticed the judgment of this Court in Meharban Singh's case (supra) and by
reason of the observation of this Court in paragraph 15 of the judgment in Budha's
case, it can not but be said that the decision in the later judgment was on the
peculiar facts of the case. It is further to be noted that Meharban Singh's
case came to be decided as early as 1970 and has been followed for last three
decades in the State of Madhya Pradesh and innumerable number of matters have
been dealt with on the basis thereof and in the event, a different view is
expressed today, so far as this specific legislation is concerned, it would
unsettle the situation in the State of Madhya Pradesh and it is on this score
also that reliance on the doctrine of `stare decisis' may be apposite. While it
is true that the doctrine has no statutory sanction and the same is based on a
Rule of convenience and expediency and as also on `Public Policy' but in our
view, the doctrine should and ought always to be strictly adhered to by the
courts of law to sub-serve the ends of justice. 12. This Court in Muktul v. Mst. Manbhari
& Ors. (1959 SCR 1099), explained the scope of the doctrine of stare decisis
with reference to Halsbury's Laws of England and Corpus Juris Secundum in the
manner following:- "The principles of `Stare Decisis' is thus stated in Halsbury's
Laws of England: "Apart from any question as to the Courts being of
co-ordinate jurisdiction, a decision which has been followed for a long period
of time, and has been acted upon by persons in the formation of contracts or in
the disposition of their property, or in the general conduct of affairs, or in
legal procedure or in other ways, will generally be followed by courts of
higher authority than the court establishing the rule, even though the court
before whom the matter arises afterwards might not have given the same decision
had the question come before it originally. But the supreme appellate Court
will not shrink from overruling a decision, or series of decisions, which
establish a doctrine plainly outside the statute and outside the common law,
when no title and no contract will be shaken, no persons can complain, and no
general course of dealing be altered by the remedy of a mistake".
The
same doctrine is thus explained in Corpus Juris Secundum:- "Under the
stare decisis rule, a principle of law which has become settled by a series of
decisions generally is binding on the courts and should be followed in similar
cases. This rule is based on expediency and public policy, and, although
generally it should be strictly adhered to by the courts, it is not universally
applicable."
13. Be
it noted however that Corpus Juris Secundum, adds a rider that "previous
decisions should not be followed to the extent that grievous wrong may result;
and, accordingly, the courts ordinarily will not adhere to a rule or principle
established by previous decisions which they are convinced is erroneous. The
rule of stare decisis is not so imperative or inflexible as to preclude a
departure therefrom in any case, but its application must be determined in each
case by the discretion of the court, and previous decisions should not be
followed to the extent that error may be perpetuated and grievous wrong may
result." 14.
The
statement though deserves serious consideration in the event of a definite
finding as to the perpetration of a grave wrong but that by itself does not
denude the time tested doctrine of Stare Decisis its efficacy. Taking recourse
to the doctrine would be an imperative necessity to avoid uncertainty and
confusion. The basic feature of law is its certainty and in the event of there
being uncertainty as regards the state of law - the society would be in utter
confusion resultant effect of which would bring about a situation of chaos - a
situation which ought always to be avoided.
15. In
Raj Narain Pandey & Ors. v. Sant Prasad Tewari & Ors. (1973 (2) SCR 835
, H.R. Khanna, J. (as he then was) observed at page 840 of the Report as
follows:- "In the matter of the interpretation of a local statute, the
view taken by the High Court over a number of years should normally be adhered
to and not disturbed. A different view would not only introduce and element of
uncertainty and confusion, it would also have the effect of unsettling
transactions which might have been entered into on the faith of those
decisions. The doctrine of stare decisis can be aptly invoked in such a
situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven
Properties v. Poole Corpn.,
there is well established authority for the view that a decision of long
standing on the basis of which many persons will in the course of time have
arranged their affairs should not lightly be disturbed by a superior court not
strictly bound itself by the decision."
16.
Recently in Bishamber Dass Kohli v. Satya Bhalla (1993 (1) SCC 566) J.S. Verma,
J. (as he then was) observed in respect of a provision of the East Punjab Urban
Rent Restriction Act, 1949 as follows:- "This is how this provision
appears to have been understood at least ever since then and the people in the
State have arranged their affairs on that basis. Apart from the fact that this
view commends to us as the correct view, the desirability of continuing the
settled view is also a reason in its favour."
17.
More recently in Gangeshwar Limited v. State of U.P. & Ors. (1995 (6) SCC
84 this Court observed :- "We would have appreciated this attractive
argument had there not been two decisions of the Allahabad High Court in the
way, which are to the contrary. These are - State of U.P. v. Har
Bilas Goel and Jai Ram Singh v. State of U.P.
The understanding of section 6 of the Ceiling Act by the High Court reflected
in these two decisions, when none has been placed before us to the contrary,
would require upholding on the principle of stare decisis, for if we go to
reinterpret the provision contrarily, it would upset the settled position in
the State insofar as this area of law is concerned."
18. Paripoornan,
J. in a similar vein in Kattite Valappil Pathumma & Ors. v. Taluk Land Board & Ors. 1997 (4) SCC 114 observed:- "We are
further of the view, that even if another view is possible, we are not inclined
to take a different view at this distance of time.
Interpretation
of the law is not a mere mental exercise.
Things
which have been adjudged long ago should be allowed to rest in peace. A
decision rendered long ago can be overruled only if this Court comes to the
conclusion that it is manifestly wrong or unfair and not merely on the ground
that another interpretation is possible and the court may arrive at a different
conclusion. We should remember that the law laid down by the High Court in the
above decision has not been doubted so far. The Act in question is a State
enactment. These are weighty considerations to hold that even if a different
view is possible, if it will have the effect of upsetting or reopening past and
closed transactions or unsettling titles all over the State, this Court should
be loathe to take a different view. On this ground as well, we are not inclined
to interfere with the judgment under appeal."
19. In
this context reference may also be made to two English decisions: (a) In
Admiralty Comrs. V. Valverda (Owners) (1938 Appeal Cases 173 at 194) wherein
the House of Lords observed that even long-established conveyancing practice,
although not as authoritative as a judicial decision, will cause the House of
Lords to hesitate before declaring it wrong and (b) In Button v. Director of
Public Prosecution, Swain v. Director of Public Prosecutions (1966 AC 591)
House of Lords observed:- "In Corpus Juris Secundum, a contemporary
statement of American Law the stare decisis rule has been stated to be a
principle of law which has become settled by a series of decisions generally is
binding on the courts and should be followed in similar cases. It has been
stated that this rule is based on expediency and public policy and should be
strictly adhered to by the courts. Under this rule courts are bound to follow
the common law as it has been judicially declared in previously adjudicated
cases and rules of substantive law should be reasonably interpreted and
administered. This rule has to preserve the harmony and stability of the law
and to make as steadfast as possible judicially declared principles affecting
the rights of property, it being indispensable to the due administration of
justice, especially by a court of last resort, that a question once
deliberately examined and decided should be considered as settled and closed to
further argument. It is a salutary rule, entitled to great weight and
ordinarily should be strictly adhered to by the courts. The courts are slow to
interfere with the principle announced by the decision, and it may be upheld
even though they would decide otherwise were the question a new one, or
equitable considerations might suggest a different result and although it has
been erroneously applied in a particular case. The rule represents an element
of continuity in law and is rooted in the psychologic need to satisfy
reasonable expectations, but it is a principle of policy and not a mechanical
formula of adherence to the latest decision however recent and questionable
when such adherence involves collision with a prior doctrine more embracing in
its scope, intrinsically sounder and verified by experience.
20.
The law as settled by this court in Meharbansingh's case (supra) has stood the
test of time and if at this juncture a contra opinion is expressed, it will
open up a series of conflicts and consequent litigation and thereby disturbing
settled position of law in the State of Madhya Pradesh. This Court's decision on the Rajasthan legislation has
been decided in the peculiar facts of the matter in issue therein. There is neither
any co-relation nor any identity of subject, between the two enactments and as
a matter of fact the legislations speak differently. As such, we are not able
to record our concurrence with the submission of Mr. Jain that the law needs to
be enunciated more fully by reason of a different view as expressed by this
Court in Budha's case. Budha's case (supra) as noticed above, has been decided
on its own merits and has no applicability in the contextual facts. The doctrine
of stare decisis therefore, prompt us to reject the contention of Shri Jain. In
that view of the matter and since the High Court has proceeded on the basis of Meharbansingh's
case , we do feel it convenient to record that the High Court has decided the
issue in its proper perspective and we see no reason to express any different
view at this point of time.
21.
The appeal, therefore, fails and is dismissed with no order as to costs.
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