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HIGH COURT OF ALLAHABAD
R.L.Gulati, N.D.Ojha, Satish Chandra
BALWANT
Versus
DEPUTY DIRECTOR OF CONSOLIDATION
Decided On : 19 February 1975
Special Appeal Nos. 845 and 1243 of 1969 and 90 of 1971, Civil Misc. Writ Petn. No. 264 of 1964
The possession of the mortgagee whose rights have extinguished under Section 14 (1) of the Zamindari Abolition and Land Reforms Act on or after the date of vesting is not per se adverse but is permissive. The period of limitation for a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act would commence to run not from the date of vesting but from the date of demand for possession.
Fact of the Case:
The mortgagee continued in possession even after the date of vesting, subsequently the mortgagor, who had become a bhumidhar, filed a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act for the ejectment of the mortgagee from the bhumidhari plots, which, prior to the date of vesting, were sir and khudkasht.
Finding of the Court:
The possession of the mortgagee after the date of vesting was permissive. The time will begin to run from the date of demand for possession, if any otherwise from the date of the institution of the suit.
Issues: 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? Does the period of limitation for a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act commence to run on the date of vesting or on the date of demand for possession?
Ratio Decidendi: The court held that the possession of the mortgagee after the date of vesting was permissive. The time will begin to run from the date of demand for possession, if any otherwise from the date of the institution of the suit. The court observed that the mortgagee continued to be a secured creditor. His continuance in possession even after the date of vesting is not disfavoured by the Legislature, except that his possession will not be as usufructuary mortgagee. Even the mortgagor who had given his consent is not completely obliterated from the scene so that he ceases to have any interest in the land as is the case with an occupancy tenant after his being ejected or dying without leaving any heir or surrendering the holding. Here fresh rights of bhumidhar are created in favour of the mortgagor in that very land in place of the earlier rights which vested in the State and the mortgagor gets a simultaneous right - so to speak without any hiatus to take or retain possession over that very land as bhumidhar over which the usufructuary mortgagee was in possession as such till the date of vesting and continues in possession even thereafter even though not "as such". It is in this context that the nature of his possession after the date of vesting has to be considered and on such consideration it does not appear that his possession becomes per se adverse after the date of vesting.
Final Decision: The possession of the mortgagee after the date of vesting was permissive. The time will begin to run from the date of demand for possession, if any otherwise from the date of the institution of the suit.
It appears that a zamindari share including Sir and khudkasht plots was usufructuarily mortgaged. The mortgagee continued in possession even after the date of voting. Subsequently the mortgagor, who had become a bhumidhar, filed a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act for the ejectment of the mortgagee from the bhumidhari plots, which, prior to the date of vesting, were sir and khudkasht. The defence, inter alia, was that the suit was barred by time, because the defendants were in possession after the date of vesting, as trespassers, and the period of limitation commenced to run from the date of vesting. The plaintiffs case was that the retention of possession by the mortgagee was, after the date of vesting, permissive. The time will begin to run from the date of demand for possession, if any otherwise from the date of the institution of the suit. The suit was within time.
2. The suit was under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act, which reads :-
"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 the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar or asami.
(b) Where the land does not form part of the holding of a bhumidhar, sirdar or asami without the consent of the Gaon Sabha.
shall be liable to ejectment on the suit, in cases referred to in clause (a) above, of the bhumidhar, sirdar or asami concerned, and in cases referred to in clause (b) above, of the Gaon Sabha and shall also be liable to pay damages.
(2) To every suit relating to a land referred to in clause (a) of sub-section (1) the State Government shall be impleaded as a necessary party".
3. Clause (a) of sub-section (1) of this section authorised a bhumidhar, sirdar or asami, while clause (b) entitled the Gaon Sabha, to sue for the ejectment of a person taking or retaining possession otherwise than in accordance with the provisions of the law for the time being in force, and without their consent.
4. This provision lays down two conditions, first, that the person takes or retains possession in contravention of the law, and, in the next place, without the consent of the plaintiff, be he a bhumidhar, sirdar or asami or the Gaon Sabha.
5. In Radhey Shyam v. Rama 1969 All LJ 1095 Gangeshwar Prasad, J. , speaking for the Bench, held that in view of Section 14 (1) of the Act the mortgagees right to remain in possession after the date of vesting extinguished. His retaining possession thereafter was otherwise than in accordance with law. So the first condition was satisfied. The same view was taken by a Division Bench in Ram Chet v. State of U. P. Civil Misc. Writ No. 2733 of 1968, D/- 29-7-1968 (All ). None of the learned counsel appearing for the rival parties even whispered that the possession of the erstwhile mortgagee of Sir or khudkasht land was, after the date of vesting, in accordance with law. It can, therefore, be taken as beyond controversy that the possession of the erstwhile mortgagee after the date of vesting was unlawful, that is, otherwise than in accordance with the provisions of law for the time being in force, within meaning of the Section 209.
6. A difference of opinion arose on the construction of the phrase without the consent occurring in Section 209. In Radhey Shyams case 1969 All LJ 1095 (supra) it was held that the possession of the mortgagee of sir or khudkasht land being permissive in its origin, its continuance even after the date of vesting will be permissive till the demand for possession is made by the bhumidhar. If the mortgagee continues to remain in peaceful possession, his possession is not necessarily without the consent of the bhumidhar. In C. M. W. No. 2733 of 1963, D/ 29-7-1968 (All) (supra) B. Dayal and Lokur, JJ. took the view
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