Important point
1. By virtue of Section 4(27) of the Madhya Bharat Zamindari Abolition Act a mortgagee interest in the mortgaged khudkasht land of zamindar is not allowed to blosson into larger interest of ownership or of indefeasible right to possess the land in virtue of the advent of the new land tenure system.
2. While it is true that the doctrine of store decisis has no statutory sanction and the same is based on a Rule of convenience and expediency and as also on ‘Public Policy’ but in our view, the doctrine should and ought always to be strictly adhered to by the courts of law to sub-serve the ends of justice.

Headnote:(i) Madhya Bharat Zamindari Abolition Act, 1951-Sections 3 and 4(27) read with Section 60 of the Transfer of Property Act, 1882 -Zamindari property mortgaged with possession prior to Zamindari Abolition Act-Mortgagor in possession of Khudkasht land-Redemption suit by zamindar-Suit contested by defendant mortgagor claiming right of ownership right-Not tenable-Mortgagor would not be able to upgrade his entitlement or status and possession of Khudkasht land stands transferred from him to Zamindar by operation of law.
       Held : Section 4(27) provides that notwithstanding anything contained in sub-section (1) the proprietary shall continue to remain in possession of his Khudkasht land so recorded in the annual village papers before the date of vesting. It, therefore, appears that that there is a categorical expression of statutory intent that the land which has not been recorded as Khudkasht land is liable to vest in the State. Conversly thus, the intent of the legislature is loud enough to indicate that while Zamindari or intermediary interest was being abolished, due care has been taken to protect the Khudkasht land and allowed the subsisting interest of the Zamindar to continue so as to enable the Zamindar either to cultivate himself or through employees or hired labourers and in that event the same would be out of contemplation of the statute. The statute has put an embargo even on the mortgagee of Khudkasht land. As a matter of fact the Act read as a whole suggests that the mortgagee would not be able to upgrade his entitlement or status and the possession of Khudkasht land stands transferred from him to the Zamindar by operation of law. Section 4 and various sub-sections thereunder read with Sections 5 and 6 categorically depict the same and it is on this aspect of the matter we lend our concurrence to the observation of the High Court to the following effect:-
       “A mortgagee’s interest in the mortgaged Khudkasht land is not allowed to blossom into larger interest of ownership or of indefeasible right to possess the land in virtue of the advent of the new land tenure system.”.
       The definition section as noticed above and in particular the definition of the word “Proprietor” means a person as respects a village, muhal or land settled on Zamindari system owning whether in trust or for his own benefit, such village, muhal or land. The definition of “Khudkasht” under Section 2(C) referring therein land cultivated by the Zamindar himself or through employees or hired labourers, read with Section 4(2), makes it abundantly clear that Section 2(a) cannot but mean that it is the Zamindar or Proprietor only who has been allowed by the statute to obtain the benefit. The mortgagee cannot be allowed to claim a better title by reason of the provisions as noted above than he has prior to the enactment of the statute. (Paras 5, 6 & 7)
       (ii) Stare decisis-Doctrine has no statutory sanction but based on rule of convenience and expediency and also on public policy-Doctrine should and ought always to strictly adhered to by Courts of law to sub-serve ends of justice. (Paras 11 & 14)

Judgment

Banerjee, J.-This appeal is directed against the order of the Madhya Pradesh High Court confirming the preliminary decree passed by the trial Court and allowing the plaintiffs’ claim for redemption in respect of mortgaged houses and khudkasht land.

2. The contextual facts record that the defendant-mortgagee has challenged the right of the plaintiff-mortgagor to redeem assorted items of property which were mortgaged prior to the enactment of the Madhya Bharat Zamindari Abolition Act, 1951 (Samvat 2008). The learned trial judge decreed the suit and the appeal therefrom however before the learned single judge resulted in an order of reference before a Division Bench by reason of expression of a view contra, by another Single Judge of Indore Bench in (Yakub son of Kasamji v. Yakub son of Fakir Mohammad & Ors.1).

3. On however a detail analysis of facts it appears that the plaintiff-respondent being the Zamindar of village Kamalpur, during the subsistence of the Zamindari, executed two mortgage-deeds dated 4.8.1947 and 5-1-1948 in favour of the defendant-appellant for securing thereunder a loan against movable property and houses, Zamindari and Khudkhast lands. The possession of the mortgaged property as the record shows was delivered to the mortgagee-defendant and in a suit filed for redemption of the mortgage, the trial Court as noted above decreed the suit with an express finding that the plaintiff was entitled to redeem the mortgage.

4. Be it noted here that the Madhya Bharat Zamindari Abolition Act has been engrafted into the statute book for acquisition of rights of proprietors in villages, Muhals, Chaks or blocks settled on Zamindari system so as to subserve the public purposes of the improvements of agriculture and financial condition of agriculturists and came into force on 25th June, 1951.

5. Section 2(c), defined “Khudkasht land” meaning thereby land cultivated by Zamindar himself or through employees or hired labourers and includes `sir’ land.

Section 3 of the Act provides for vesting of the proprietary rights in the State and Section 4 records the consequence of vesting of an estate in the State.

Section 4(27) provides that notwithstanding anything contained in sub-section (1) the proprietary shall continue to remain in possession of his Khudkasht land so recorded in the annual village papers before the date of vesting.

6. It, therefore, appears that that there is a categorical expression of statutory intent that the land which has not been recorded as Khudkasht land is liable to vest in the State. Conversly thus, the intent of the legislature is loud enough to indicate that while Zamindari or intermediary interest was being abolished, due care has been taken to protect the Khudkasht land and allowed the subsisting interest of the Zamindar to continue so as to enable the Zamindar either to cultivate himself or through employees or hired labourers and in that event the same would be out of contemplation of the statute. The statute has put an embargo even on the mortgagee of Khudkasht land. As a matter of fact the Act read as a whole suggests that the mortgagee would not be able to upgrade his entitlement or status and the possession of Khudkasht land stands transferred from him to the Zamindar by operation of law. Section 4 and various sub-sections thereunder read with Sections 5 and 6 categorically depict the same and it is on this aspect of the matter we lend our concurrence to the observation of the High Court to the following effect:-

“A mortgagee’s interest in the mortgaged Khudkasht land is not allowed to blossom into larger interest of ownership or of indefeasible right to possess the land in virtue of the advent of the new land tenure system.”.

7. The definition section as noticed above and in particular the definition of the word “Proprietor” means a person as respects a village, muhal or land settled on Zamindari system owning whether in trust or for his own benefit, such village, muhal or land. The d

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1999 Supreme(SC) 440

Cases Referred (8)