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PETITIONER:

MISHRI LAL (DEAD) BY LRS.

Vs.

RESPONDENT:

DHIRENDRA NATH (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT: 06/04/1999

BENCH:

Umesh C. Banerjee, M. Jagannadha Rao

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 second appeal No.498 of 1965, (Yakub son of

Kasamji v. Yakub son of Fakir Mohammad & Ors.) 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 Khudkasht

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 improvement of agriculture and financial

condition of agriculturists and came into force on 25th

June, 1951. 5. Section 2c, 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 proprietor 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

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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 definition of

"Khudkasht" under Section 2c 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. 8. As regards the Yakub's case the High Court in

paragraph 13 of the Judgment observed:- "True, for the view

taken in Yakub's case (supra) reliance is placed mainly by

the learned single judge, on a decision rendered by another

learned single judge of this court in Bhagwant v.

Ramchandra (1961 JLJ 286). In that decision also, a

simplistic view of the definition was taken and relying on

Section 2(a)(a) read with sub-clause (2) of section 2 of

Qanoon Mal, Gwalior State, the rights of Zamindar/proprietor

were subrogated to that of his mortgagee and the latter was

even held entitled under Section 38 to claim to be a "Pakka

tenant" and thereby to keep alive his interest in the

mortgaged "Khudkasht" land in direct opposition to the

object and purpose of Section 4(1)(f). Reference was also

made in Yakub's' case (supra) to a Bench decision of this

Court in Khumansingh v. Dhansingh (1971 RN 351), but, in

our opinion, reliance thereon was misconceived. In that

case, it was held that in "Z.A. Act" emphasis was on actual

cultivation of the "Khudkasht" lands and not on entry ("so

recorded") in the revenue record, while construing Sections

2(c) and 4(2) of the said Act. The scope and object of

Section 4(1)(f) did not come up for consideration of their

Lordships in that case. Although reference was also made in

Yakub's case to another Bench decision of this Court,

Chaturbhuj v. Mohanlal (1961 RN 182), that was also not a

case of a mortgagee versus Zamindar and in that case,

construction of the provisions merely of Sections 4(2) and

2(c) has to be read."

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9. This aspect of the matter, however, has been dealt

with by this Court in the case of Meharban Singh v. Naresh

Singh (AIR 1971 SC 77) wherein this Court in paragraph 8

observed:- "8. A plain reading of these sections would show

that all rights, title and interest of the proprietors in

the area notified were to cease and were instead to vest in

the State free from all encumbrances with effect from all

encumbrances with effect from the date of notification and

after such vesting in the State every mortgage with

possession existing on the property so vested or part

thereof on the date immediately preceding the date of

vesting, to the extent of the amount secured on such

property or part, thereof, is to be deemed, without

prejudice to the right of the State under Section 3 to have

been substituted by a simple mortgage. The proprietor,

however, notwithstanding other consequences of the vesting

in a State, is entitled to continue to remain in possession

of his khudkasht land which is so recorded in the annual

village papers before the date of vesting. Now it was

clearly open to the plaintiffs to show that the land in

question was khudkasht and, therefore, in accordance with

Section 4, they were entitled to remain in possession

thereof."

10. Mr. S.K. Jain, appearing in support of the

appeal however contended that subsequent to the decision in

Meharban Singh's case this Court in the case of Budha v.

Amilal (1990 (4) JT, 804) expressed a different view and by

reason of divergence of views this matter ought to be

referred to a larger Bench for resolution and enunciation of

the law on the subject. For convenience sake the

observation of this Court in Budha's case (supra) is set out

herein below:-

"14. 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 before the date of vesting

should also be in possession of the Zamindar or Biswedar on

the date of vesting and if he is in possession of such lands

he can continue to retain the possession of the same subject

to the provisions of 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 the rights conferred and

subject to all the liabilities imposed on a Khatedar tenant

by or under the Rajasthan Tenancy Act. Under this provision

Khatedri rights have been conferred on a Zamindar or

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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 and

it is further required that 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

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

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

15. 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."

11. Incidentally, be it noted that the decision in

Budha's case (supra) was on interpretation of Rajasthan

Zamindari and Biswedari Abolition Act, 1959 whereas Madhya

Bharat Zamindari Abolition Act, 1951 came up for

consideration in Meharbansingh's case. The later decision

of this Court in Budha's case (supra) however has not

noticed the judgment of this Court in Meharban Singh's case

(supra) and by reason of the observation of this Court in

paragraph 15 of the judgment in Budha's case, it can not but

be said that the decision in the later judgment was on the

peculiar facts of the case. It is further to be noted that

Meharban Singh's case came to be decided as early as 1970

and has been followed for last three decades in the State of

Madhya Pradesh and innumerable number of matters have been

dealt with on the basis thereof and in the event, a

different view is expressed today, so far as this specific

legislation is concerned, it would unsettle the situation in

the State of Madhya Pradesh and it is on this score also

that reliance on the doctrine of `stare decisis' may be

apposite. While it is true that the doctrine 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. 12. This Court in Muktul v. Mst.

Manbhari & Ors. (1959 SCR 1099), explained the scope of the

doctrine of stare decisis with reference to Halsbury's Laws

of England and Corpus Juris Secundum in the manner

following:- "The principles of `Stare Decisis' is thus

stated in Halsbury's Laws of England: "Apart from any

question as to the Courts being of co-ordinate jurisdiction,

a decision which has been followed for a long period of

time, and has been acted upon by persons in the formation of

contracts or in the disposition of their property, or in the

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general conduct of affairs, or in legal procedure or in

other ways, will generally be followed by courts of higher

authority than the court establishing the rule, even though

the court before whom the matter arises afterwards might not

have given the same decision had the question come before it

originally. But the supreme appellate Court will not shrink

from overruling a decision, or series of decisions, which

establish a doctrine plainly outside the statute and outside

the common law, when no title and no contract will be

shaken, no persons can complain, and no general course of

dealing be altered by the remedy of a mistake".

The same doctrine is thus explained in Corpus Juris

Secundum:- "Under the stare decisis rule, a principle of law

which has become settled by a series of decisions generally

is binding on the courts and should be followed in similar

cases. This rule is based on expediency and public policy,

and, although generally it should be strictly adhered to by

the courts, it is not universally applicable."

13. Be it noted however that Corpus Juris Secundum,

adds a rider that "previous decisions should not be followed

to the extent that grievous wrong may result; and,

accordingly, the courts ordinarily will not adhere to a rule

or principle established by previous decisions which they

are convinced is erroneous. The rule of stare decisis is

not so imperative or inflexible as to preclude a departure

therefrom in any case, but its application must be

determined in each case by the discretion of the court, and

previous decisions should not be followed to the extent that

error may be perpetuated and grievous wrong may result." 14.

The statement though deserves serious consideration in the

event of a definite finding as to the perpetration of a

grave wrong but that by itself does not denude the time

tested doctrine of Stare Decisis its efficacy. Taking

recourse to the doctrine would be an imperative necessity to

avoid uncertainty and confusion. The basic feature of law

is its certainty and in the event of there being uncertainty

as regards the state of law - the society would be in utter

confusion resultant effect of which would bring about a

situation of chaos - a situation which ought always to be

avoided.

15. In Raj Narain Pandey & Ors. v. Sant Prasad

Tewari & Ors. (1973 (2) SCR 835 , H.R. Khanna, J. (as he

then was) observed at page 840 of the Report as follows:-

"In the matter of the interpretation of a local statute, the

view taken by the High Court over a number of years should

normally be adhered to and not disturbed. A different view

would not only introduce and element of uncertainty and

confusion, it would also have the effect of unsettling

transactions which might have been entered into on the faith

of those decisions. The doctrine of stare decisis can be

aptly invoked in such a situation. As observed by Lord

Evershed M.R. in the case of Brownsea Haven Properties v.

Poole Corpn., there is well established authority for the

view that a decision of long standing on the basis of which

many persons will in the course of time have arranged their

affairs should not lightly be disturbed by a superior court

not strictly bound itself by the decision."

16. Recently in Bishamber Dass Kohli v. Satya Bhalla

(1993 (1) SCC 566) J.S. Verma, J. (as he then was)

observed in respect of a provision of the East Punjab Urban

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Rent Restriction Act, 1949 as follows:-

"This is how this provision appears to have been

understood at least ever since then and the people in the

State have arranged their affairs on that basis. Apart from

the fact that this view commends to us as the correct view,

the desirability of continuing the settled view is also a

reason in its favour."

17. More recently in Gangeshwar Limited v. State of

U.P. & Ors. (1995 (6) SCC 84 this Court observed :- "We

would have appreciated this attractive argument had there

not been two decisions of the Allahabad High Court in the

way, which are to the contrary. These are - State of U.P.

v. Har Bilas Goel and Jai Ram Singh v. State of U.P. The

understanding of section 6 of the Ceiling Act by the High

Court reflected in these two decisions, when none has been

placed before us to the contrary, would require upholding on

the principle of stare decisis, for if we go to reinterpret

the provision contrarily, it would upset the settled

position in the State insofar as this area of law is

concerned."

18. Paripoornan, J. in a similar vein in Kattite

Valappil Pathumma & Ors. v. Taluk Land Board & Ors. 1997

(4) SCC 114 observed:- "We are further of the view, that

even if another view is possible, we are not inclined to

take a different view at this distance of time.

Interpretation of the law is not a mere mental exercise.

Things which have been adjudged long ago should be allowed

to rest in peace. A decision rendered long ago can be

overruled only if this Court comes to the conclusion that it

is manifestly wrong or unfair and not merely on the ground

that another interpretation is possible and the court may

arrive at a different conclusion. We should remember that

the law laid down by the High Court in the above decision

has not been doubted so far. The Act in question is a State

enactment. These are weighty considerations to hold that

even if a different view is possible, if it will have the

effect of upsetting or reopening past and closed

transactions or unsettling titles all over the State, this

Court should be loathe to take a different view. On this

ground as well, we are not inclined to interfere with the

judgment under appeal."

19. In this context reference may also be made to two

English decisions: (a) In Admiralty Comrs. V. Valverda

(Owners) (1938 Appeal Cases 173 at 194) wherein the House of

Lords observed that even long-established conveyancing

practice, although not as authoritative as a judicial

decision, will cause the House of Lords to hesitate before

declaring it wrong and (b) In Button v. Director of Public

Prosecution, Swain v. Director of Public Prosecutions (1966

AC 591) House of Lords observed:- "In Corpus Juris Secundum,

a contemporary statement of American Law the stare decisis

rule has been stated to be a principle of law which has

become settled by a series of decisions generally is binding

on the courts and should be followed in similar cases. It

has been stated that this rule is based on expediency and

public policy and should be strictly adhered to by the

courts. Under this rule courts are bound to follow the

common law as it has been judicially declared in previously

adjudicated cases and rules of substantive law should be

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reasonably interpreted and administered. This rule has to

preserve the harmony and stability of the law and to make as

steadfast as possible judicially declared principles

affecting the rights of property, it being indispensable to

the due administration of justice, especially by a court of

last resort, that a question once deliberately examined and

decided should be considered as settled and closed to

further argument. It is a salutary rule, entitled to great

weight and ordinarily should be strictly adhered to by the

courts. The courts are slow to interfere with the principle

announced by the decision, and it may be upheld even though

they would decide otherwise were the question a new one, or

equitable considerations might suggest a different result

and although it has been erroneously applied in a particular

case. The rule represents an element of continuity in law

and is rooted in the psychologic need to satisfy reasonable

expectations, but it is a principle of policy and not a

mechanical formula of adherence to the latest decision

however recent and questionable when such adherence involves

collision with a prior doctrine more embracing in its scope,

intrinsically sounder and verified by experience.

20. The law as settled by this court in

Meharbansingh's case (supra) has stood the test of time and

if at this juncture a contra opinion is expressed, it will

open up a series of conflicts and consequent litigation and

thereby disturbing settled position of law in the State of

Madhya Pradesh. This Court's decision on the Rajasthan

legislation has been decided in the peculiar facts of the

matter in issue therein. There is neither any co-relation

nor any identity of subject, between the two enactments and

as a matter of fact the legislations speak differently. As

such, we are not able to record our concurrence with the

submission of Mr. Jain that the law needs to be enunciated

more fully by reason of a different view as expressed by

this Court in Budha's case. Budha's case (supra) as noticed

above, has been decided on its own merits and has no

applicability in the contextual facts. The doctrine of

stare decisis therefore, prompt us to reject the contention

of Shri Jain. In that view of the matter and since the High

Court has proceeded on the basis of Meharbansingh's case ,

we do feel it convenient to record that the High Court has

decided the issue in its proper perspective and we see no

reason to express any different view at this point of time.

21. The appeal, therefore, fails and is dismissed with no

order as to costs.