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2003 Supreme(SC) 261
2003(2) Supreme 759
SUPREME COURT OF INDIA
(From Allahabad High Court)
Syed Shah Mohammed Quadri and Arijit Pasayat, JJ.
Thakur Prasad (Dead) through LRs. -Appellants
versus
Raj Karan (Dead) by LRs. & Ors. -Respondents
Civil Appeal No. 865 of 1984
With
C.A. Nos. 866-868 of 1984
Decided 4-3-2003
Counsel for the Parties :
For the Appearing Parties : V.K.S. Chaudhary, Sr. Advocate, E.C. Agrawala, H.P. Pandey, Dhanjayay Prasad, A.D. Prakash, Mahesh Agarwal, Rishi Agrawal, Alok Agarwal, Manu Krishnan, Vivek Yadav, S.S. Khanduja, B.K. Satija, Advocate (NP) and A.S. Pundir, Advocates.
IMPORTANT POINT
Mortgagees of suit land are not entitled to claim any right under Agra Tenancy Act or U.P. Zamindari Abolition and Land Reforms Act.
Headnote:Agra Tenancy Act, 1901-Section 158-Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950-Sections 6, 130, 133 and 200-Suit land in Distt. Varanasi was donated by one R to P-P and his LR s remained in possession as Rent free ground-LR s of P created usufructory mortgage in favour of T and S-Mortgagors filed suit for ejectment of mortgagees by depositing the mortgage money-Whether mortgagees are entitled to claim any right either under Agra Tenancy Act or Zamindari Abolition Act? (No)-Result-As mortgagors have deposited mortgage money, the mortgagees have no right to continue in possession of the mortgaged land-Mortgagees are, however, entitled to 1/6th of mortgaged land which they have purchased-Order accordingly.
Held (on Zamindari Abolition and Land Reforms Act, 1950) : From a perusal of the provisions, extracted above, it is plain that a rent-free grantee became bhumidar under sub-clause (i) of clause (a) of Section 130 and a mortgagee from a bhumidar became asami under sub-clause (ii) of clause (a) of Section 133 of the Z.A. Act. Thus, in the instant case, the mortgagors became bhumidars and the mortgagees became asamis. The title of the mortgagors as bhumidars was also accepted by the mortgagees when they purchased one sixth share in the suit land from the mortgagors. In view of this position, the mortgagors (bhumidars) were entitled to seek ejection of the mortagees (asamis) on depositing the mortgage money under Section 200(c) of the Z.A. Act. From the above discussion, it follows that the mortgagees are not entitled to claim any right either under the Agra Tenancy Act or under the Z.A. Act. As the mortgage money had been deposited by the mortgagors, the mortgagees had no right to continue in the possession of the mortgaged land. However, we clarify that having purchased one sixth share of the mortgagors, the mortgagees are entitled to remain in possession of only one sixth share of the land. We have already noted above that the Settlement Officer had allotted one sixth share of the suit land to the mortgagees and the possession of the rest of the suit land had been given to the purchasers of the mortgaged land (suit land). For the foregoing reasons the order under challenge in Civil Appeal Nos. 865 to 867 of 1984 does not call for any interference by this Court. The Civil Appeal Nos. 865 of 1984, 866 of 1984 and 867 of 1984 are, therefore, dismissed. In view of the dismissal of the above appeals, Civil Appeal No. 868 of 1984 filed by the Raj Karan deserves to be allowed and it is accordingly allowed. (Paras 19 to 22)
JUDGMENT
Syed Shah Mohammed Quadri, J.-These appeals from various judgments and orders of High Court of Judicature at Allahabad arise out of the same factual matrix and raise a common question of law viz., how are the rights of the mortgagors and the mortgagees of the suit land affected by the provisions of the U.P. Zamindari Abolition and Land Reforms Act?
2. The search for the answer to the question takes us back a century and a quarter and obliges us to examine the nature of the tenure under different Acts. The undisputed facts giving rise to the above question lie in a narrow compass. The object of controversy is certain plots of land in village Chaura Kalan, Taluka Konrh, Pargana Bhadohi, District Varanasi of the State of U.P. (hereinafter referred to in this judgment as the suit land ). In 1923 one Ram Nath Singh, who was said to be sub-proprietor, granted the suit land as Krishnarpan to one Prayag Dutt Tiwari who passed away in 1947 leaving behind him his L.Rs. Respondent Nos. 5 to 10, who (hereinafter referred to as the mortgagors ) executed usufructuary mortgage in favour of Thakur Prasad and Shitla Prasad (Appellants in Civil Appeal Nos. 865-866 of 1984 - hereinafter referred to as the mortgagees ) on November 3, 1947. The mortgagors sold the suit land in different bits. They sold 1/6th share in favour of the mortgagees and 1/6th share to Jadunath (respondent in Civil Appeal No. 866 of 1984). The remaining 2/3rd share in the suit land was sold under two sale deeds in favour of Raj Karan (appellant in Civil Appeal No. 868 of 1984). On October 7, 1960, Raj Karan, who had entered into shoes of the mortgagors (hereinafter referred to as such in this judgment) filed the suit, out of which these appeals arose, for ejectment of Thakur Prasad and Shila Prasad (mortgagees) by depositing the mortgage money. The suit could not proceed due to the issuance of Notification of consolidation in the said village. The case was, however, tried under Section 9 of the U.P. Consolidation of Holdings Act by the Consolidation Officer who dismissed the suit. On appeal by Raj Karan, the Settlement Officer decreed the suit on August 12, 1965. The mortgagees filed revision before the Deputy Director of Consolidation who allowed the revision petition and restored the order of the Settlement Officer (Consolidation) on December 21, 1965. The said order was impugned in writ petitions before the High Court of Judicature at Allahabad by different parties. From the judgments and orders of the High Court the above appeals came to be filed in this Court by special leave.
3. Mr. E.C. Agarwala, the learned counsel appearing for the appellants - mortgagees contended as follows: the Deputy Director of Consolidation found that the suit land was donated by the sub-proprietor, Ram Nath Singh, in favour of Prayag Dutt Tiwari which was not disturbed by the Maharaja of Banaras after purchasing the village; Prayag Dutt Tiwari and his successors continued in possession for more than fifty years and thus acquired the status of an owner under Section 158 of the N.W. Provinces Tenancy Act of 1901 (later termed as the Agra Tenancy Act - for short, the Agra Act ); under Section 6 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, the Z.A. Act ), the rights of a mortgagor had come to an end and he became entitled to recover the mortgage amount as a simple mortgagee; however, Section 14(2) conferred the right of ownership/bhumidar on such a mortgagor who held land as Sir or under Khudkasht on the date of the mortgage but the suit land was not so held and some other mortgagees were in possession so it could not have been under the Khudkasht of the mortgagors on the relevant date as such their right got extinguished; the mortgagees would have become hereditary tenant, had they deposited five times the rent but they failed to do so and therefore Gaon Sabha became entitled to eject them under Section 209 within three years from the
