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PETITIONER:

BIR SINGH & ORS.

Vs.

RESPONDENT:

PYARE SINGH & ORS.

DATE OF JUDGMENT: 06/03/2000

BENCH:

S.S.Ahmad, D.P.Mohapatro

JUDGMENT:

D.P.MOHAPATRA,J.

On analysis of the case of the parties and the

contentions raised on their behalf the question which arises

for determination is whether in the facts and circumstances

of the case the appellants can be said to be khatedar

tenants of the land in dispute. If this question is

answered in the affirmative then the further question for

consideration will be whether the right of the appellants in

the land in dispute was extinguished under section 12 of the

Rajasthan Tenancy Act, 1955 (for short the Tenancy Act).

The High Court of Rajasthan having answered the first

question in the negative and dismissed the suit , the

plaintiffs are in appeal against the judgment.

The factual matrix of the case relevant for

appreciation of the question for determination, may be

stated thus : - Late Chet Singh held zamindari rights in

respect of the disputed land situated in Village

Mohammadpur, of Tehsil-Dholpur in the State of Rajasthan.

As he was serving in the army he had engaged Sohan Singh for

cultivation of the land. Since Sohan Singh got his name

recorded in the revenue records as the owner of the land

Chet Singh filed a suit, against him before the Assistant

Collector, Dholpur. In the said suit a compromise was

entered into between the parties and possession of the

property was delivered by Sohan Singh to Chet Singh. In the

said compromise it was averred that Chet Singh was the

Khudkasht Kashatkar of the disputed land and that Sohan

Singh voluntarily handed over possession of the land to Chet

Singh.

Chet Singh mortgaged the land with Charan Singh for a

period of ten years for satisfaction of the loan amounting

to Rs.300/- vide the registered mortgage deed dated

22.9.1956. Chet Singh expired in 1965 leaving the

appellants as his legal heirs. As Charan Singh did not hand

over possession of the land even after expiry of the period

of mortgage the appellants filed a suit, under Section 43(3)

read with Section 183 of the Tenancy Act against Charan

Singh seeking recovery of possession of the land. The

Additional District Collector, by the order dated 12.5.1983

in case no. 142/82 decreed the suit and directed Charan

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Singh to hand over vacant possession of the land in dispute

to the appellants declaring them as Khatedar kashtkar.

Charan Singh was further directed to pay to the appellants a

sum of Rs.3400/- as penalty for illegal occupation of the

land during the seventeen agricultural years after expiry of

the mortgage period. In the appeal, Appeal no.253 of 1983,

filed by Charan Singh the Revenue Appellate Authority,

Bharatpur by the order dated 15.7.1985 dismissed the appeal

and confirmed the order of the Additional District

Collector. The second appeal, RTA no.144/85, filed by

Charan Singh before the Rajasthan Revenue Appellate Board,

was dismissed by the order dated 22.6.1993. Charan Singh

expired on 25.2.1991 during pendency of the appeal and the

respondents herein were substituted as his legal heirs. The

respondents challenged the order of the Revenue Appellate

Board in CWP No.4159/93 before the Rajasthan High Court.

The High Court by the Jugdment dated 24.2.1994 allowed the

writ petition, quashed the concurrent orders of the

statutory authorities and dismissed the suit. The said

judgment is under challenge in the present appeal.

The thrust of the submissions made by the learned

counsel for the appellants is that the High Court erred in

reversing the concurrent decisions of the statutory

authorities on the erroneous finding that they are not

entitled to recover possession of land in dispute. The

learned counsel contends that after abolition of the

Zamindari right of the appellants under the Rajasthan

Zamindari and Biswedari Abolition Act, 1959 [for short the

Zamindari Abolition Act] the appellants were entitled to

retain the land in dispute which was a part of their

khudkasht land as recorded in the revenue records.

The learned counsel for the respondents supporting the

impugned judgment submitted that in view of the undisputed

factual position that the appellants were not in occupation

of the land in dispute on the date the Zamindari Abolition

Act came into force they could not retain possession of the

land, notwithstanding the entry in the revenue records

showing the land as khudkasht. He placed reliance on the

decision of this Court in the case of Budha Vs. Amilal

[1991 Supp.(2) SCC 41].

Undisputedly, the plaintiff had lost possession over

the land in dispute by 22 September, 1956 when the mortgage

deed was registered. It is not in dispute that the

plaintiff was seeking recovery of possession from the

mortgagee Charan Singh in the suit filed in September, 1967.

It is also an accepted position that the land in dispute was

shown in the revenue record as khudkasht land. It is also

accepted position that Chet Singh, the predecessor in the

interest of the appellants, held Zamindari right over land

in dispute. In this backdrop the question for consideration

is whether after enforcement of the Zamindari Abolition Act

the plaintiffs could claim right of possession over the land

in dispute. From the orders passed by the statutory

authorities it appears that this question was not

specifically adverted to by the authorities. They proceeded

to determine the controversy on the basis of the provisions

in Sections 10 and 12 of the Rajasthan Tenancy Act.

In section 2(3) of the Zamindari Abolition Act land

means every class or category of land forming part of an

estate and includes

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(a) benefits to arise out of such land,

(b) things attached to the earth or permanently

fastened to anything attached to the earth,

(c) sites of villages or towns,

(d) beds of tanks, ponds, embankments, rivers and

water channels, and

(e) surface of hills

Under sub-section(5) of the said section the term

Zamindar has the meaning assigned to it by clause (46) of

section 5 of the Tenancy Act and includes a malik

(landowner) in the Gang Canal area. Sub-section(6) of

section 2 provides that words and expressions defined in the

Tenancy Act and in the Rajasthan Land Revenue Act, 1956

(Rajasthan Act 15 of 1956) but not defined in this Act

shall, wherever used herein, be construed to have the

meaning assigned to them by those Acts.

In sub-section(7) of section 2 it is laid down that

the words and expression used to denote the person in

possession of any right, title or interest shall be deemed

to include the predecessors and successors in right, title

or interest of such person.

Section 3 which is the provision regarding overriding

effect of this Act over other laws provides that save as

otherwise expressly provided in this Act, the provisions of

this Act, and of the rules and orders made thereunder shall

have effect notwithstanding anything inconsistent therewith

contained in any other law and rules for the time being in

force or any instrument having effect by virtue of any law

or usage, agreement, settlement, grant sanad or any decree

or order of any court of other authority.

Chapter II of the Act comprises of the provisions

regarding Abolition of Zamindari and Biswedari Estates.

In section 5 which is included in the said chapter

provisions are made regarding consequences of abolition.

The relevant portions of the section are quoted hereunder :

5. Consequences of abolition (1)

XXX XXX XXX

(2) As from the date of vesting of any Zamindari or

Biswedari estate in the State Government, notwithstanding

anything contained in any contract, grant or other document

or in any law for the time being in force but save as

otherwise provided in this Act-

(a)such estate shall stand transferred to, and vest

in, the State Government free from all encumbrances.

(b)the right, title and interest of the Zamindar or

Biswedar and of every person claiming through him, in such

estate, including land (cultivable, waste or barren)

grove-land, grass land or birs, scrub jungle, forests,

trees, fisheries, hills, wells tanks, ponds, water courses

and channels, ferries, pathways, village sites, abadi sites,

hats, bazars, means and mela grounds, and in all sub soil

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therein, including rights, if any, in quarries and mines

whether being worked or not and in all mineral and mineral

products, shall cease and be vested in the State Government,

free from all encumbrances, for the purposes of the State,

and every mortgage, debt or charge on any such right, title

or interest shall be a charge on the amount of compensation

payable to the Zamindar or Biswedar under this Act;

XXX XXX XXX

(d) every right, title or interest created in or over

such estate by the Zamindar or Biswedar or his

predecessor-in-interest shall, as against the State

Government, cease and determine; all rents and cesses in

respect of any holdings in such estate for any period after

the date of vesting, which, but for such vesting, would have

been payable to the Zamindar or Biswedar, shall vest in and

be payable to the State Government, and any payment made in

contravention of this clause shall not be a valid discharge

of the person liable to pay the same;

XXX XXX XXX

(j) every mortgage with possession existing on such

estate or part thereof on the date immediately preceding the

date of vesting shall, to the extent of the amount secured

on such estate or part, be deemed, without prejudice to the

rights of the State Government under this section, to have

been substituted by a simple mortgage;

(k) no claim or liability enforceable or incurred

before the date of vesting against or by the Zamindar or

Biswedar for any money which is charged on or in secured by

a mortgage of such estate or part thereof shall, except as

provided in section 73 of the Transfer of Property Act, 1882

(Central Act IV of 1882), be enforceable against his right,

title or interest in such estate or part;

(l) Subject to any rules made in this behalf, all

suits and proceedings affecting such estate, in which,

because of the same having vesting in the State Government,

the latter will be a neessary part, pending in any court,

civil or revenue, at the date of vesting and all proceeding

consequent upon any decree or orders passed in any such suit

or proceeding before such date, shall not be proceeded with

till, on an application made in that behalf, the State

Government is made a party thereto;

XXX XXX XXX

(4)Notwithstanding anything contained in sub-section

(2) the Zamindar or Biswedar shall, subject to the

provisions of section 29, continue to retain the possession

of his Khudkasht, recorded as such in the annual registers

before the date of vesting. (emphasis supplied)

Section 29 of the Act which is included in Chapter V-

Miscellaneous contains provision regarding Khatedari rights

in Khudkasht land. In sub-section (1) thereof it is

provided that as from the date of vesting of an estate, the

Zamindar or Biswedar thereof shall be a Malik of any

khudkasht land in his occupation on such date and shall, as

such Malik, be entitled to all the rights conferred and be

subject to all the liabilities imposed on a khatedar tenant

by or under the Rajasthan Tenancy Act, 1955. Sub-section

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(2) of the section is not relevant for the present purpose.

(emphasis supplied) Section 30 contains the provisions

regarding rights of tenants in estate. Sub-section(1)

thereof provides that subject to the provisions of sections

15, 15A, 15B and 16 of the Rajasthan Tenancy Act, every

tenant in an estate, other than a tenant of Khudkasht or a

sub-tenant, shall, as from the date of vesting, be the

khatedar tenant of the land comprised in his holding, unless

he has acquired Khatedari rights therein before such date,

and shall, as from the date of vesting, pay to the State

Government, until rents are settled in accordance with the

provisions of the Rajasthan Land Revenue Act, 1956

(Rajasthan Act No.15 of 1956), by way of rent therefor the

same amount as he had been paying to the Zamindar or

Biswedar immediately before such date but not exceeding

twice the land revenue payable in respect thereof.

Sub-section(2) of the said section lays down that upon a

Zamindar or Biswedar becoming a Malik of his Khudkasht land

under section 29, every tenant of such Khudkasht shall be

the sub-tenant of the land in his occupation holding under

and from such Malik.

The expression Khudkasht is defined in section 5(23)

of the Act to mean land in any part of the State

cultivated personally by an estate-holder and shall include

(i) land recorded as khudkasht, sir, havala, niji- jot,

gharkhed in settlement records at the commencement of this

Act in accordance with law in force at the time when such

record was made, and

(ii) land allotted after such commencement as

khudkasht under any law for the time being in force in any

part of the State.

In Section 5(46) Zamindar is defined to mean a

person on whom a village or portion of a village in any part

of the State is settled on the Zamindari system and who is

recorded as such in the record of rights and shall include a

proprietor as defined in clause(a) of section 2 of the

Madhya Bharat Zamindari Abolition Act, Samvat 2008 (Madhya

Bharat Act of 1951), if any, in the Sunel area.

Section 43 contains the provisions regarding mortgage.

The portions of the said section relevant for the purpose of

the case are extracted below : 43. XXXXX XXXXX XXXX

(3)A usufructuary mortgage under sub- section(2)

shall, upon the expiry of the period mentioned hereinbefore,

be deemed to have been satisfied in full without any payment

whatsoever by the mortgagor, and the mortgage debt shall be

deemed to have been extinguished and the mortgaged land

redeemed and the possession thereof shall be delivered by

the mortgagee to the mortgagor free from all encumbrances.

(4) A usufructuary mortgage of any land made before

the commencement of this Act shall, upon the expiry of the

period mentioned in the mortgage deed or twenty years from

the date of execution thereof, whichever period is less, be

deemed to have been satisfied in full without any payment

whatsoever by the mortgagor and the mortgage debt shall

accordingly be deemed to have been extinguished and

thereupon the mortgaged land shall be redeemed and

possession thereof shall be delivered to the mortgagor free

from all encumbrances.

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Section 183 of the Act under which the suit was filed

reads as follows: 183.Ejectment of certain trespassers (1)

Notwithstanding anything to the contrary in any provision of

this Act, a tresspasser who has taken or retained possession

of any land without lawful authority shall be liable to

ejectment, subject to the provision contained in

sub-section(2), on the suit of the person or persons

entitled to eject him, and shall be further liable to pay as

penalty for each agricultural year, during the whole or any

part whereof he has been in such possession, a sum which may

extend to fifteen times the annual rent.

(2) In case of land which is held directly from the

State Government or to which the State Government acting

through the Tehsildar, is entitled to admit the trespasser

as tenant, the Tehsildar shall proceed in accordance with

the provisions of section 91 of the Rajasthan Land Revenue

Act, 1956 (Rajasthan Act 15 of 1956).

On a reading of the provisions of the Zamindari

Abolition Act noted above it is clear that a Zamindar who is

in possession/occupation of Khudkasht land on the date of

vesting of the estate becomes a Khatedar tenant on abolition

of the Zamindari right under section 29 of the Zamindari

Abolition Act. Under the said section a Zamindar becomes a

Malik of the Khudkasht land in his occupation and as Malik

he shall be entitled to all the rights conferred and all the

liabilities imposed on a Khatedar tenant by or under the

Act. It follows as a corollary that if the Zamindar is not

in occupation of the Khudkasht land on the date of vesting

he is not entitled to claim Khatedari right in the land.

The scheme behind this provision is that if a Zamindar or

Biswedar is in actual occupation of cultivable land on the

date of abolition of his Zamindari right then he should

continue to be in possession of such land. This is in

accordance with the object of bringing about agrarian

reforms by giving the land to the person in cultivating

possession of the land. If the Zamindar is not in

occupation of the Khudkasht land on the date of vesting then

such land vests in the State along with the other lands

subject to the provisions in the Zamindari Abolition Act.

In respect of such land Zamindar is not entitled to claim

any right of possession and consequentially is not entitled

to maintain a suit for recovery of possession of the land

from any other person. In the case of Budha Vs. Amilal

(supra) a Division Bench of this Court interpreting the

provisions of sections 29 , 5(2)(a), (b),(j), 5(4) and 2(6)

of the Zamindari Abolition Act and sections 5(23)(I) and

(25) of the Rajasthan Tenancy Act held : Even if it is

assumed that the lands in dispute have to be treated as

Khudkasht lands of the appellant by virtue of clause (I) of

the inclusive part of the definition of Khudkasht

contained in Section 5(23) of the Rajasthan Tenancy Act, the

appellant cannot succeed in his claim that he has acquired

Khatedari rights in respect of those lands on the basis of

the provisions contained in sub- section (4) of Section 5

and sub-section (1) of Section 29 of the Act. Sub-section

(4) of Section 5 provides that notwithstanding anything

contained in sub-section (2) of Section 5 the Zamindar or

Biswedar shall subject to the provisions of Section 29,

continue to retain the possession of his Khudkasht, recorded

as such in the annual registers before the date of vesting.

The words continue to retain the possession, imply that

lands which are recorded as Khudkasht in the annual register

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before the date of vesting should be in possession of the

Zamindar or Biswedar on the date of vesting. If he is in

possession of such lands he can continue to retain the

possession of the same subject to the provisions of Section

29. Sub-section(1) of Section 29 prescribes that as from

the date of vesting of an estate, the Zamindar or Biswedar

thereof shall be a malik of any Khudkasht land in his

occupation on such date and shall, as such malik, be

entitled to all rights conferred and the subject to all the

liabilities imposed on a Khatedar tenant by or under the

Rajasthan Tenancy Act. Under this provision Khatedari

rights have been statutorily conferred on a Zamindar or

Biswedar as from the date of the vesting of the estate in

respect of Khudkasht lands in the occupation of such

Zamindar or Biswedar on such date. The words in his

occupation on such date postulates that the lands, though

Khudkasht, should be in the occupation of the Zamindar or

Biswedar on the date of vesting of the estate. It would

thus appear that in view of sub- section(4) of Section 5 and

sub-section(1) of Section 29 of the Act the mere fact of

recording of the land as Khudkasht in the settlement records

on the date of vesting would not be enough for a Zamindar or

Biswedar to acquire Khatedari rights over the said lands;

the Zamindar or Biswedar should be in possession/ occupation

of the said lands on the date of vesting of the estate under

the Act. The possession/occupation envisaged by sub-

section(4) of Section 5 and sub-section(1) of Section 29 of

the Act is actual possession/occupation and the possession

of a mortgagor through the mortgagee cannot be held to be in

possession or occupation as postulated in sub-section(4) of

Section 5 and sub-section (1) of Section 29 of the Act.

In the present case the appellant has come forward

with a specific case in the plaint that the defendant is in

possession of the lands in dispute as a mortgagee from the

date of the two mortgagees. In other words the appellant

was not in possession/occupation of the said lands on the

date of vesting of the estate of the appellant under the

Act. The appellant cannot, therefore, claim Khatedari

rights in respect of the lands in dispute.

On consideration of the facts and circumstances of the

case as revealed from the materials on record and the

relevant provisions of the Zamindari Abolition Act it is our

considered view that the principles laid down and the

observations made in Budha Vs. Amilal (supra) apply in all

force to the present case. We are also in respectful

agreement with the principles laid down in the said

decision. Therefore, the appellants cannot be said to be

khatedar tenants of the land in dispute. The first

question formulated earlier is answered in the negative and

in view of that answer the further question does not arise

for consideration. The High Court was right in dismissing

the suit. The appeal is dismissed. No costs.