Pratap
Singh @ Babu Ram & ANR Vs. Deputy Director of Consolidation, Mainpuri &
Ors [1999] INSC 365 (22 September 1999)
R.P.Sethi,
S.S.Ahmad D E R S.SAGHIR AHMAD, J.
Plot
Nos. 510, 519, 520, 521, 522, 523, 524 and 533 of Khata No. 76 situated in
village Akbarpur Kutubpur, Pargana Mustafabad, Tehsil Jasrana,, District
Mainpuri, were recorded in the basic year in the name of Hiral Lal, father of
the present appellants. When the Consolidation operations under the U.P.
Consolidation of Holdings Act (for short "the Act") started, the
respondents filed objections claiming, inter alia, that the plots in question
constituted "Sir" and "Khudkasht" land of their
predecessor-in-interest, namely, Hansraj, who had mortgaged these plots in
favour of the predecessor-in-interest of the appellants on 21.1.1920. On the
abolition of the Zamindari by the U.P. Zamindari Abolition & Land Reforms
Act, 1950 (for short "the ZA&LR Act") they ought to have been
recorded as "Bhumidhars" of the said land in view of Section 14 of
the ZA&LR Act. The appellants contested the case before the Consolidation
Officer by filing a written statement and the Consolidation Officer by his
judgment and order dated 29.5.1963 decided the case in favour of Hira Lal. In
appeal which was filed thereafter by the respondents, it was held by the
Assistant Settlement Officer, Consolidation, by his judgment and order dated
11.7.1963, that on the abolition of Zamindari, possession of Hira Lal became
adverse and since the respondents had not filed a suit for ejectment within the
period of limitation (three years from the date of vesting), they lost all
their rights and consequently, the revenue entries in favour of Hira Lal could
not be interfered with. This order was upheld in revision by the Deputy
Director of Consolidation who dismissed the revision on 6.9.1963. The
respondents, thereafter, filed a writ petition in the High Court which was
dismissed on 1.5.1969.
In
Special Appeal, which was thereafter filed by the respondents, it was noticed,
at the time of hearing, that there was a conflict of decisions on the questions
involved in the case and consequently following two questions were referred to
the Full Bench : "(a) Whether the possession of the mortgagee whose rights
have extinguished under section 14(1) of the Zamindari Abolition and Land
Reforms Act is, on or after the date of vesting, per se, adverse or permissive?
(b) Does the period of limitation for a suit under Section 209 of the U.P.
Zamindari Abolition and Land Reforms Act commence to run from the date of
vesting or on the date of demand for possession?" The Full Bench by
majority opinion, which is since reported in AIR 1975 Allahabad 295 (Balwant
& Ors. vs. The Deputy Director of Consolidation & Ors.), held that the
period of limitation for suit under Section 209 of the ZA&LR Act would not
start from the date of vesting but from the date on which the possession is
demanded by the mortgagor. After the decision of the Full Bench on the
aforesaid questions of law, the matter was again placed before the Division
Bench which disposed of the Special Appeal in terms of the majority judgment of
the Full Bench. The writ petition filed by the respondents was allowed and the
judgment passed by the Deputy Director of Consolidation was set aside. It is
this judgment which is assailed before us. Learned counsel for the appellants
has invited our attention to Entry 30 in Appendix III to the Rules made under
the ZA&LR Act. This entry reads as under :
--------------------------------------------------------
S.
Section
Description Period Time from Proper No. of the of suit, of which court-fee Act
application limit- period and other tation begins to proceeding run
-------------------------------------------------------- 1 2 3 4 5 6
-------------------------------------------------------- 30.
209
Suit for ejectment of a person taking or retaining poss- ession of the land
unlawfully and for damages:- (i) If the person was Three From the As in the in
possession of years date of Court Fees the land on the vesting Act, 1870, date of
vesting on one and the period of year's rent limitation for his calculated
ejectment speci- at heredi- fied in the U.P. tary rates. Tenancy Act, 1939 had
not expired.
(ii)In
case of occu- Three From the -do- pants referred to years date of in Section 144
declaration u/s 144. (iii)In case of occu- Six From 1st of -do- pants of land
held years July follow- by a bhumidhar ing the date in the Govt. of occupation
Estates in which the provisions of the Act have been extended from time to time
(including 85 settled Bhabar Villages of Tarai and Bhabar Govt. Estates.
--------------------------------------------------------
1 2 3 4 5 6 -------------------------------------------------------- (iv)In
case of occu- Twelve -do- -do- pants of any years other land held by a
Bhumidhar or asami where poss- ession of such land is taken or retained unlaw-
fully.
--------------------------------------------------------
According to the above entry, a suit for ejectment against the person taking or
retaining possession of the land unlawfully and for damages could be filed
within three years from the date of vesting. Learned counsel for the appellants
has contended that the words "from the date of vesting" refer to the
date from which the period of three years would start running. He contended
that the period of limitation has to be counted from the date of vesting,
i.e.1.7.1952 and since the suit by the predecessor-in-interest of the
respondents was not filed within three years from that date, his rights in the
land in question came to an end and the predecessor- in-interest of the
appellants acquired title by adverse possession. We are not prepared to
subscribe to this view. The significant words in this entry are "taking or
retaining possession of the land unlawfully". If the possession from the
inception was lawful, it would remain lawful. Its character would not change as
we shall presently see with reference to various provisions of the ZA&LR
Act. Zamindari was abolished in the State of Uttar Pradesh by the U.P. Zamindari Abolition & Land Reforms Act,
1950, which came into force on 1.7.1952.
Section
4(1) of this Act provides that with effect from the date specified in the
Notification issued by the State Government under this Section, all estates
shall vest in the State free from all encumbrances. Consequences of vesting are
indicated in Section 6. Clauses (g) and (h) of Section 6 provide as under :
"(g)(i) every mortgage with possession existing on any estate or part of
an estate on the date immediately preceding the date of vesting shall, to the
extent of the amount secured on such estate or part, be deemed, without
prejudice to the rights of the State Government under Section 4, to have been
substituted by a simple mortgage; (ii) notwithstasnding anything contained in
the mortgage deed or any other agreement, the amount declared due on a simple
mortgage substituted under sub-clause (i) shall carry such rate of interest and
from such date as may be prescribed; (h) no claim or liability enforceable or
incurred before the date of vesting by or against such intermediary for any
money, which is charged on or is secured by mortgage of such estate or part
thereof shall, except as provided in Section 73 of the Transfer of Property
Act, 1882 (IV of 1882), be enforceable against his interest in the
estate;" Under clause (g) quoted above, a mortgage with possession stands
converted into a simple mortgage, while clause (h) provides that no claim for
money against an intermediary, relating to the mortgage, would be enforceable
against the interest of the intermediary in the estate except as provided under
Section 73 of the Transfer of Property Act. The obvious reason is that the
interest of the intermediary has vested in the State free from all encumbrances
and, therefore, mortgage cannot be enforced against that interest even for
recovery of mortgage money.
Recourse
can, therefore, be had to the provisions of Section 73 of the Transfer of
Property Act to proceed against the substituted security for the recovery of
the mortgage money.
Section
14 of the Act [as it stood at the relevant time] provided as under : "(1)
Subject to the provisions of sub-section (2) a mortgagee in possession of an
estate or share therein shall, with effect from the date of vesting, cease to
have any right to hold or possess as such any land in such estates. (2) Where
any such land was in the personal cultivation of the mortgagee on the date
immediately preceding the date of vesting --- (a) if it was sir or khudkasht of
the mortgagor on the date of the mortgage, the same shall, for purposes of
Section 18, be deemed to be the sir or khudkasht of the mortgagor or his legal
representative; (b) if it was not sir or khudkasht of the mortgagor on the date
of the mortgage the mortgagee shall, subject to his paying to the State Government,
within six months from the date of vesting an amount equal to five times the
rent calculated at hereditary rates applicable on the date immediately
preceding the date of vesting, be deemed, for purposes of Section 19, to have
held such land on the date aforesaid as a hereditary tenant thereof at the said
rate of rent: Provided that if the mortgagee fails to pay the amount aforesaid
within the time allowed, he shall thereupon lose all rights in such land which
shall be deemed to be vacant land and he shall be liable to ejectment on the
suit of the Gaon Sabha or the Collector, under Section 209 as if he were a
person in possession thereof otherwise than in accordance with the provisions
of this Act, Explanation I. For the purposes of this section a mortgagee in
possession includes a thekedar of his rights as mortgagee in the land.
Explanation II. Where any land has been mortgaged with possession and the
mortgagor makes a second or subsequent mortgage of such land in favour of the
same, or a different person, the expression `on the date of the mortgage, shall
mean the date of the mortgage in pursuance of which the mortgagor first
transferred possession to mortgagee." Section 14 (1) purports to abolish
all the rights of the mortgagee in possession of an estate or a share therein
with effect from the date of vesting. It specifically provides that a mortgagee
in possession shall cease to have any right to hold or possess land in such
estate. Sub-section (1), however, operates subject to the provisions of Sub-section
(2) as is evident from the opening words of Sub-section (1). Sub-section (2)
provides that if the land, which was the subject matter of the mortgage
referred to in Sub-section (1), was in the personal cultivation of the
mortgagee on the date immediately preceding the date of vesting, then, if such
land was `sir' or `khudkasht' land of the mortgagor on the date of the
mortgage, the said land shall be deemed to be `sir' or `khudkasht' of the
mortgagor for purposes of Section 18.
The
implication of this provision is that even if the land was in the cultivatory
possession of the mortgagee, on the date of vesting, it would be treated,
fictionally, `sir' or `khudkasht' of the mortgagor, provided the land, on the
date of the mortgage, was the `sir' or `khudkasht' of the mortgagor. The
immediate effect of this deeming provision would be that the mortgagor would
acquire `Bhumidari' rights in respect of that land under Section 18 of the Act.
Thus, the overall effect of Sub-section (1) and (2) of Section 14 is that the
rights of a mortgagee come to an end with effect from the date of vesting and
the mortgagor becomes `Bhumidhar' of that land under Section 18 of the Act. To
put it differently, the encumbrance created by the mortgagor comes to an end as
the land vests in the State free from encumbrance but the rights of the
mortgagee to recover mortgage money is preserved as it is provided in Section
6(h) that it can be recovered from the "substituted security" under
Section 73 of the Transfer of Property Act.
We may
point out that "Bhumidari" rights, acquired by the mortgagor under
Section 18, are new rights created under the Act after the land in which such
rights have been acquired had vested in the State free from all encumbrances.
This land, notwithstanding that it was the subject matter of mortgage prior to
the date of vesting, would not be treated as "substituted security"
within the meaning of Section 73 of the Transfer of Property Act and a mortgage
decree, if any, cannot be executed against that land. (See: Rana Sheo Ambar
Singh vs. Allahabad Bank Ltd., 1962 (2) SCR 441 = AIR 1961 SC 1790) The next
and immediate question which crops up is the question relating to the status of
the mortgagee in respect of that land. Even though the mortgagee was in cultivatory
possession of the land on the date of vesting, his rights under the mortgage
qua that land come to end as that land vests in the State subject to the
condition that if the land, on the date of the mortgage was `sir' or
`khudkasht' land of the mortgagor, the latter, namely the mortgagor would
become a `Bhumidhar' under Section 18. If in these circumstances, the mortgagee
continues to remain in possession in spite of his rights having come to an end
by the force of law, what would be the character of his possession; whether the
possession would immediately become `hostile' to that of the mortgagor who has
acquired `Bhumidari' rights under Section 18, or the mortgagee would be treated
to be continuing in possession for and on behalf of the mortgagor. It is, at
this stage, that the words used in Entry 30 relating to suits under Section 209
of the Act as set out in Appendix III to the Rules made under the ZA&LR Act
become relevant. In Column 3 meant for "Description of suit, application
and other proceeding", the words used are "Suit for ejectment of a
person taking or retaining possession of the land unlawfully and for
damages." These words contemplate a suit for ejectment of a person who has
taken possession unlawfully or continues to retain that possession unlawfully.
In the case of possessory or usufructuary mortgage, possession is delivered to
the mortgagee. Delivery of possession to the mortgagee is a sine qua non of
such a mortgage. It is delivered in terms of the mortgage by the mortgagor of
his own volition to the mortgagee. The mortgagee gets possession over the land
only because it has been delivered to him in terms of the mortgage deed which
equally binds him. The entry into possession of the mortgagee in these
circumstances cannot be said to be unlawful. Once the possession was delivered
to the mortgagee lawfully by the mortgagor himself, the further retention of
that possession by the mortgagee would obviously be with the consent of the
mortgagor and the mortgagee shall be treated to be retaining the possession for
and on behalf of the mortgagor till the mortgage is redeemed. The character of
possession of the mortgagee who was lawfully inducted into possession by the
mortgagor, does not change at any stage and it continues to be lawful
possession. A bare reading of the words of Entry 30 in Appendix III, relating
to suits under Section 209 of the Act, makes it clear that the period of
limitation would not run from the date of vesting, as the character of
mortgagee's possession remains `permissive' and does not become `adverse' to
the interest of the mortgagor who after acquiring "Bhumidari" rights
under Section 18, may still allow the mortgagee to continue in possession. As
pointed out earlier, Entry 30 would apply to a suit where a person has obtained
possession over land "unlawfully" and continues to retain that
possession unlawfully. The period of limitation in the case of a 'permissive'
possession would start running from the date the mortgagee, who is asked to
deliver possession, refuses to do so. `Permissive possession' means that the
mortgagee is in possession over the property in question with the leave of the
owner, or to put it differently, of the `Bhumidar'. If on being asked to
deliver possession, the mortgagee refuses or declines to do so, it would give
rise to a cause of action on the date on which possession is refused to be
delivered and consequently the period of three years would start running from
that date. The High Court has considered the question from another angle. It
has noticed that a usufructuary mortgage stands converted into simple mortgage.
It then proceeded to consider the ingredients of a simple mortgage and
ultimately came to the conclusion that if the matter is examined from that
angle, then too, the possession of the mortgagee would be permissive in
character and the period of limitation for filing a suit under Section 209
would commence from the date on which the mortgagee refuses to deliver
possession. In Shri Ram vs. Dhan Bahadur Singh AIR 1965 Allahabad 223 as also
in Mustafa Khan vs. Deputy Director of Consolidation 1972 ALJ 854 = AIR 1973
Allahabad 372, it was held that possession of the mortgagee is permissive in
the sense that it is with the consent of the mortgagor. In Mahabal Singh vs.
Ram Raj, 1950 ALJ 713 = AIR 1950 Allahabad 604, which is a Full Bench decision
of the High Court, it was held that possession of a mortgagee of tenancy land,
whose transfer was forbidden by law, would be `permissive' in character.
This
decision has since been approved in Raj Narain vs. Sant Prasad AIR 1973 SC 291
in which this Court observed, inter alia, as under : "We are unable to
accede to the above contention, because we find that the matter is covered by
two Full Bench decisions of the Allahabad High Court. In a five-Judge decision
of the Allahabad High Court in the case of AIR 1950 All 604 (supra), the court
referred to the decision of a three judge bench of that court in the case of
AIR 1944 All 25 (supra) and found that the following five propositions had been
laid down in the earlier case : "(1) That the usufructuary mortgage of an
occupancy holding by a tenant is void and not voidable. (2) That a mortgagor
after giving possession to the mortgagee cannot recover possession of the
holding without paying the money which he had taken from the mortgagee. (3)
That a mortgagee of an occupancy holding by remaining in possession for over 12
years does not extinguish the rights of the mortgagor to redeem him and by such
possession the mortgagee only prescribes for mortgagee rights. (4) That it is
open to the mortgagor to seek possession of the holding by tendering the
consideration which he had received and he may do so by a redemption suit. (5)
The relationship which comes into existence as a result of the mortgage of an
occupancy holding and its possession being tranferred to the mortgagee, though
not strictly speaking that of a mortgagor and a mortgagee, is analogous to that
relationship, and the action which is raised by the mortgagor to recover
possession of the holding on payment of the money due to the mortgagee, though
not strictly in the nature of a redemption, is analogous to a redemption
suit." It was also observed that to take a contrary view from the law laid
down in those five propositions would have the effect of unsettling the law
established for a number of years. Mr. Agarwal has not questioned the
correctness of the above mentioned five propositions and, in our opinion,
rightly so.
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 an element of uncertainity 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." We are not, in this
case, considering the question of the mortgagee acquiring title by adverse
possession against the mortgagor. That question is separate and distinct from
the question we are considering in the instant case in which we are concerned
only with the interpretation of Entry 30 of Appendix III which prescribes the
period of limitation for a suit under Section 209 of the UPZA&LR Act. Of
course, if the suit is not filed within the period of limitation, the
consequences indicated in Section 210 of the ZA&LR Act will follow with the
result that the person already in possession unlawfully or retaining such
possession qua the "Bhumidari" land would immediately acquire the
status contemplated by Section 210.
In our
opinion, the majority decision of the Full Bench lays down the correct law. The
Full Bench decision has since been followed by Hon. R.M. Sahai, J. (as His
Lordship then was) in Tribeni vs. Chakauri & Ors. 1982 ALJ 784, in which it
was laid down that the rights of a mortgagee come to an end from the date of
vesting and his possession was `permissive' in character and not adverse to the
interest of the mortgagor. We find no merit in this appeal which is accordingly
dismissed. There will be no order as to costs.
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