MEHARBANSINGH AND OTHERS versus NARESHSINGH AND OTHERS

MEHARBANSINGH AND OTHERS

NARESHSINGH AND OTHERS

October 27, 1969 [V. RAMASWAMI AND I. D. DUA, JJ.]

Madhya Bharat Zamindari Abolition Act Xlll of 1951-S. 4(1)(!)-Proprietary rights vesting in S:ate-Klzud-kc..sht land allowed to be retain· ed in possession-Land whether khud-kaslit have to be first gone into--Notice to the State, necessity of.

The appellant filed suit for redemption of mortgage. The lower courts decreed the suit. The Hi!jh Court held that in view of the provi-sions of the Mad)lya Bharat Zamindari Abolition Act XIII of 1951 the appellants were entitled to redeem the mortgage but disentitled to get possessicn 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 \.\'as lost sight of and not properly adv.erted to. Under the Act the proprietor, notwithstan.Pin"g 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 con-tioversial claim·s pressed by both the parties was the central ques.tion in-volving pToper appraisal of the material on the record and this basic dis-pute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of Act XI1I 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 a·s well thereby enabling it to be impleaded as 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 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.

MEHARBANS!NGH V. NARESHSINGH (Dua, J.)

B. C. Misra, Bhajan Ramrakhyani and Urmila Kapoor, {or 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 common judgment and decree of learned Single Judge of the Madhya Pradesh High Court at Gwalior dated September 27, 1962 partially allowing the defendants' second appeal and dis-missing 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 Ramie Singh and Jomdar Singh created mortgage of the suit land in favour of Munshi Singh for sum of Rs. 2,242. 14/-. It is said that in May, 1943 notice given by the mo1 tgagors for redemption of the mortgage was refused by the mortgagee. In June, 1943 the suit giving rise to the prerent 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 result of the r.ew 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 res-pect of the relief for redemption but claim in regard to mesne profits was disallowed. Preliminary decree for redemption was accordingly granted. In the cour1e of its judgment the trial Court observed under issue No. 10 as follows :

"I have in preceding paras shown that as per allega-tions 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. ft will be discussed later whether they and descendants of Munshisingh are joint owners or not. Be-fore 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 plain-tiffs. These entries or the rights shown therein cannot pre-judice the right of .the plaintiffs."

[1970] 3 S:C.R.

The Court while deciding issues Nos. 16 and 17 observed thus

"I have discussed these issues earlier in different con-text I may briefly add that Abolition of Zamindari Act does not affect the right of the plaintiffs to recover posses-sion of lands which were placed in possession of the mort-gagees (1956 M.B.L.J. Rameshwar vs Blwgiram). De-fendants Hanumantsingh and others did not acquire posses-sion 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 Caurt to grant mesne profits. ·in Octo-ber, 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 dispased of all appeals by common judgment and came to the conclusion that the lands had been mortgaged with possession by Samle Singh and J omdar Singh with Munshi Singh and that they were under self-culti-vation 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 re-deem the mortgage by paying the mortgage money but disentitled to get possession of the mortgaged land. The proprietary rights includ-ing 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 pro-prietary 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 Ra7([1]), con-sidering that decision to be decisive of the point in issue. That deci-sion, 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 I of 1951).

Before us the short question raised on behalf of the appellalnts is that reliance on the Madhya Bharat Zamindari Abolition Act XIII of

(I) [19621 Supp. I S.C.R. 123.

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 enact-ment of the Madhya Bharat Abolition of Zamindari Act and addi-tional 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, muha/a, chaks or blocks settled on zamindari system which is only 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 village, muha/ or land settled on zamindari system, person owning whether in trust or for his own benefit such village, muha! or land and includes :

(1) Malguzar as defined in sub-clause (12) of sec-tion 2 of Qanoon Mal, Gwalior State, Samvat 1983; and

(2) as respects chak or block 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, 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 proprietor;"

Section 2 ( c) defines "Khud-kasht" to mean "land cultivated by the Zamindar himself or through employees or hired labourers and includes sir land." Sections 3 and 4 which occur in Chapter IT 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 sub-ject to the provisions of section 8, on and from date to be specified by notification by the Government in this behalf (hereinafter referred

(b) all grants and confinnation of title of or to land in the property so vesting or of or to any right or privilege in rl)spect of such property or land revenue in· respect there-of shall, whether liable to resumption or not, detennine;

( c) all rents and cesses in respect of any hold-ing 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 vesf in the State and be payable to the Government and any pay-ment made in contravention of this clause shall not be 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 7 3 of the Transfer of Property Act, 1882, cease io 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 simple mortgage.

- : --miA-

(2) Notwithstanding aeything contained in sub-section ( 1) the proprietor shall continue to remain in possession of bis 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 proprie-tor of. anY sum which becomes due to him before the date of vesting in virtue of bis pmprietary rights."

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 tQ vest in the S.tate free from all encum-brances 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 exfent of the amount_se, -. cured on such property or part thereof, is to be deemed; witliout prejudice to the rij!;ht of the State 'under section 3 to have been substituted by simple mortgage. The proprietor, however, not-withstanding othet consequences of the vesting in State, is en-titled to continue to remain in possession of his kbud-kasht land which Js so recorded in the annual village papers before the date of vesting: Now it was clearly open to the plaiii.tiffs to show that the land in question was khud-kdsht and, therefore, in accord-ance with s. 4 they were entitled to remain .in possession thereof.

On behalf of the appe!lants'·also our attention was invited to the decision of this Court in. the case of Haji Sk. Subhan(') and, specific reliance was placed on observations at page 139 · of the report which suggests that person continuing in possession on the basis of entries in the village papers, which had to be pre-sumed 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 bad ob-tained 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 us. That decision ·is concerned with the U.P. Zamin-dari Abolition and Land Reforms Act I 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 Advo-cate has placed· reliance is Raja Sai/endra Narayan Bhaj Deo v. Kumar Jagat Kishore PrastuJ Narayan Singh(') which agiiin

{!) [1962] Supp. I S.C.R. 123.

(2) [1962] 2 S.C.R. 441.

(3) [1962] Supp. 2 S.C.R. 119.,

deals )Vith tjle Bihar Lands Refo1°ilJs Act a.nd not witli the Madhya ' Bhara:t. Act. . The scqeme of the Bihar Act being' also dissimilar from 'that of tli~ ~acll)ya Bharat Acti this decision too cannot be of much )lelp. 1 •

The ·last <decision relied on by Shri Mishra is Suraj Ahir v. Prithinath Singh and others(') which· is concerned with the Bihar .Lands Reforms A,ct 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 lhe· authority of this Court's decision in the case of Haji Sk. Subhan('). ln the reported case the word "document" as occurring ins. 4(1) of the M.P.· Abolition of Proprietary Rights '(:1\1.P. Act 1 of 1951) was construed to include decree Of the Court and it was held tha"t tlie 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 bared on the invalidity of the decree but on the effect of the afore-D said 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 re-quiring 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 XIII of 1951 on the rights of the plaintiff-appellants to redeem the mort-f!.age and secure possession of the mortgaged land.

It may be .pointed out !!\.at both the contesting parties-the appellants and the respondents-before us claim for themselves actual possession .of the land in dispute as Khud-kasht and also assert that th~ relevant entries in the annual village papers before the date of vesting showed them in s1,1ch possession. On t'.1is 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 ad-ve1ted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of the M.P. A:ct Xill 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 opinioµ, fi,t and proper for: the ·Courts below to have issued notice to the State as well, thereby enabling it to be impleaded as partv if it so desired. The approaCh of· the High Court is erroneous and its decision highly unsatisfactory. The controlling question seems fo'have been missed. We, therefore, allow the appeal and remit the case back to the High Court for fresh decision of the (I) A.l.R. !963 S. .. 454. (2) [1962] Supp. I S.C.R. 12?.

•sup.CI./70--3

appeal after notice to the State and after hearing it, in case it desires to be heard. It would'a\so be open to the High Court, if it considers just and proper, to implead the, State and if neces-sary to permit it to adduce evidence before the High Court or to remit the case to the trial Court for that purpose. In the cir-cumstances of the case, parties would bear their own costs in this Court.

Appeal allowed.