1953 Supreme(Pat) 174

PATNA HIGH COURT
Ahmad and Choudhary JJ.
Kanhaiya Singh
Versus
Bhagwat Singh
Appeal From Appellate Decree No. 1030 of 1951 ;
Decided On : DECEMBER 15, 1953

Headnote:

TENANCY - Occupancy right - Acquisition by settlee from usufructuary mortgagee - Whether possible - Bihar Tenancy Act (8 of 1885), Secs. 20, 21, 116, 120.

Fact of the Case:

Plaintiffs gave 10.25 acres of land appertaining to plot Nos. 122 and 125 of Khata No. 10 and plot No. 128 of Khata No. 21 in usufructuary mortgage to defendant No. 1 by means of a usufructuary mortgage bond, exhibit 2 (a). On 20-7-1909, they again gave 5.48 acres of land in usufructuary mortgage to defendant No. 1 by means of a usufructuary mortgage bond, exhibit 2, and one of the plots covered by that mortgage bond is plot No. 32 of Khata No. 21 having an area of 2.96 acres. On the same day they executed in his favour a third usufructuary mortgage bond, exhibit 2(d), in respect of 7.21 acres of land consisting of various plots one of which was plot No. 16 of khata No. 25 having an area of 1.59 acres. They also executed in his favour a fourth usufructuary mortgage bond with respect to 3.65 acres of land. The total area covered by all the four usufructuary mortgage bonds was 26.59 acres. In 1941 the plaintiffs made payment of the mortgage dues to defendant No. 1 & redeemed all the four mortgages. After redemption, according to the case of the plaintiffs, they got possession over 11.79 acres out of which 2.52 acres related to the second usufructuary mortgage bond, exhibit 2, 5.62 acres related to the third usufructuary mortgage bond, exhibit 2 (d), and 3.65 acres related to the fourth usufructuary mortgage bond. The plaintiffs could not get possession over the remaining area, namely, 14.80 acres of land, which contained the entire 10.25 acres of the first usufructuary mortgage bond, exhibit 2(a), 2.96 acres of plot No. 32 in khata No. 21 of the second usufructuary mortgage bond, exhibit 2, and 1.59 acres of plot No. 16 in khata No. 25 of the third usufructuary mortgage bond, exhibit 2 (d). Therefore, the plaintiffs brought a suit for declaration of their title to and recovery of possession of the aforesaid 14.80 acres of land with mesne profits.

Finding of the Court:

The court held that the lands in question were not the Zirat lands of the plaintiffs, but were the occupancy Kast lands of the defendants. It, therefore, dismissed the suit of the plaintiffs with respect to plot Nos. 122, 125, 128 and 32, but, as no contest was made by the defendants with respect to plot No. 16, an ex parte decree was passed in favour of the plaintiffs for recovery of possession over that land. No appeal was preferred by the defendants with respect to this plot, and, therefore, it is no longer in dispute now. The plaintiffs, however, preferred an appeal against the judgment and decree of the trial court dismissing their suit for the aforesaid four plots. The court of appeal below reversed the findings of the trial court, held that the lands in question were the Zirat lands of the plaintiffs and not the ancestral kast lands of the defendants, and decreed the suit.

Issues: 1. Whether the lands are Zirat lands or not within the meaning of Section 120 of the Bihar Tenancy Act; 2. Whether the appellants or their ancestors acquired any right of occupancy in the lands by reason of being brought on the lands by the mortgagee or by acceptance of rent, etc., by the mortgagee; and 3. if the lands are held to be Zirat lands within the meaning of Section 120, then whether occupancy rights could be acquired in such lands under the provisions of Sec.116 of the Bihar Tenancy Act.

Ratio Decidendi: 1. A usufructuary mortgagee is not a proprietor or a tenure-holder so as to confer the right of occupancy on the settlee under him. 2. A usufructuary mortgagee can never be in a position of a proprietor or a tenure-holder so as to confer the right of occupancy in the person inducted by him on the land. 3. The settlement of the lands affected the mortgagors right to take khas possession of them after redemption and was thus injurious to their rights. 4. The defendants could not in law acquire the right of occupancy in the lands in question even if they were in possession of the same during the continuance of the mortgages, and, as such, they had no right to be on the lands after their redemption.

Final Decision: Appeal allowed, judgment and decree of the lower appellate court set aside and the suit decreed with costs throughout. The plaintiffs will be entitled to recover possession of the disputed lands from the defendants with mesne profits which will be ascertained in a subsequent proceeding.