IMPORTANT POINT
On passing of Zamidari Abolition Act the liability to redeem mortgage got statutorily extinguished and mortgagee had no title to mortgaged land and is liable to eviction under Section 209 of said Act.

ORDER

The only question in this appeal is whether the High Court in its order dated 12.1.1976 made in Civil Misc. Writ No. 7483/71 is correct in law. The admitted position is that one Hanuman Singh, the brother in law of Gulab Singh (sister s husband), as a guardian had executed a mortgage of the lands in plot Nos. 120, 122, 145/1 and 145/2 situated in village Kanjauli Uparhar and village Janjauli Kachhar, Tappa Chaurasi, P.O. Khairagarh, District Allahabad in favour of the respondent. After the UP Zamindari Abolition and Land Reforms Act, 1950 (for short, the Act ) was brought into force with effect from 26.1.1951. The appellant laid the suit under Section 209 of the Act for ejectment of the respondent. All the courts including the Board of Revenue concurrently held, which was also upheld by the High Court, that Hanuman Singh is neither a natural guardian nor a property guardian appointed to manage the estate of the minor Gulab Singh. Therefore, the mortgage is a void mortgage.

2. The respondent contended that he had perfected his title by adverse possession. That contention was rejected. He also contended that he became an asami under the Act and thereby he is not liable to be ejected. That contention too was rejected. When he filed the writ petition, the High Court, for the first time, held that since the respondent came into possession of the aforesaid lands in his title as a mortgagee, until a suit for redumption of the mortgage and eviction of the respondent is filed in the civil court, the proceedings under Section 209 of the Act is not maintainable. Therefore, the learned Judge allowed the writ petition with the above order and set aside the orders passed by all the tribunals referred to hereinbefore. Thus, this appeal by special leave.

3. The only question is whether the tribunals have jurisdiction to have the respondent ejected from the lands. This Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad1 had held that after the Act has come into force, the mortgage stood extinguished and the bhumidari rights acquired under the Act cannot be burdened with any liability to redeem the mortgage debt which was statutorily extinguished creating an encumbrance on the land. It was held :

"....that the intention of the UP Zamindari Abolition and Land Reforms Act was to vest the proprietary rights in the Sir and Khudkast land and grove land in the Estate by virtue of Section 6(a)(i) and resettle it on the intermediary not as compensation but by virtue of his cultivatory possession of lands comprised therein and on a new tenure and confer upon the intermediary a new and special right of Bhumidari, which the never had before, by Section 18 of the Act.

The proprietary rights in Sir, Khudkast land and grove land which were mortgaged were extinguished, and the Bhumidari right which was altogether a new right could not be considered to be included under the mortgage.

The mortgagee could only enforce his rights against the mortgagor in the manner as provided by Section 6(h) of the Act read with Section 73 of the Transfer of Property Act and follow the compensation money; and so far as the Sir Khudkast land and grove land were concerned, he could not enforce his rights under the mortgage by the sale of Bhumidari rights created in favour of the mortgagor against them as a substituted security."

4. As a consequence the liability to redeem the mortgage having been statutorily extinguished and the mortgage being void, the appellant is not obliged to file a suit for redemption of the mortgage. The question then is whether the proceedings in the Courts below is validly instituted and the Courts have jurisdiction to order ejectment. Section 209 of the Act envisages that :

"209. Ejectment of persons occupying land without title.-(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and-

(a) where the land forms part of