IMPORTANT POINT
The period of limitation for suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act would not start from the date of vesting but from the date on which the possession is demanded by the mortgagor.

Headnote:U.P. Zamindari Abolition & Law Reforms Act, 1950-Section 209 r/w Sections 14 and 18-Suit for recovery of possession by mortgagor Bhumidar-Limitation-Mortgagee s possession did not become adverse on date of vesting property on abolition of zamidari-He continues to be mortgagee-Period of limitation for suit u/s 209 would start from date on which possession is demanded by mortgagor and not from date of vesting of land with Government under Act.
       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 martgage 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 mortage, 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, privided 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-sections (1) and (2) of Section 14 is that the rights of a mortagee come to an end with affect 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 mortagee 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. (Para 13)
       "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. (Para 14)
       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. (Para 15)
       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 martgagor 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 comtemplate 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. (Para 16)
       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 to possesion. 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. (Para 17)

ORDER

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 Hira 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 thier 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 Zamidari by the U.P. Zamidari Abolition & Land Reforms Act, 1950 (for short "the ZA&LRAct") they ought to have been recorded as "Bhumidhars" of the said land in view of Section 14 of the ZA&LR Act.

2. 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.

3. 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 Zamidari, 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.

4. 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?"

5. The Full Bench of majority opinion, which is since reported in Balwant & Ors. v. The Deputy Director of Consolidation & Ors.1, 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.

6. 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.

7. 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. No. Section of Description of suit, Period of Time from Proper court- the Act application and limitation which period fee other proceeding begins to run

1 2 3 4 5 6

30. 209 Suit for ejectment of a person taking or retaining possession of the land unlawfully and for damages :-

(i) If the person was in possession of the land Three years From the date of vesting As in the Court Fees Ac

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1999 Supreme(SC) 1098

IMPORTANT POINT The period of limitation for suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act would not start from the date of vesting but from the date on which the possession is demanded by the mortgagor.

Cases Referred (2)

IMPORTANT POINT
The period of limitation for suit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act would not start from the date of vesting but from the date on which the possession is demanded by the mortgagor.