MEHARBAN SINGH Vs. BHAGWANT SINGH

JUDGEMENT

(1.) This appeal of one of the plaintiffs, by special leave, is directed against the judgment of the Madhya Pradesh High Court dated Feb. 10, 1972 by which the suit for possession of the lands, which the plaintiffs had mortgaged, has been dismissed even though the trial court's decree for redemption has been mentioned. As the matter has come up to this Court for the second time, at the instance of the plaintiffs, it is not necessary to state all the facts for they have been mentioned in this Court's earlier decision in Meharbansingh v. Nareshsingh (1970) 3 SCR 18. It will be sufficient to refer to those facts which bear on the present controversy.

(2.) The suit lands belonged to Samle Singh, father of appellant Meharban Singh, and Jomdar Singh who executed a registered deed of mortgage in favour of Munshi Singh on May 20, 1939, for Rs. 2242/14/-. It is not disputed before us that it was a usufructuary mortgage of lands within the area of the former Gwalior State. The mortgagors gave a notice to the mortgagee on May 15, 1943, for redemption of the lands but he refused to accept it. The mortgagors filed the suit for redemption on June 15, 1943. As some other persons were alleged to be in possession of the suit lands they were also impleaded as defendants. The Madhya Bharat Zamindari Abolition Act, 1951 (Samvat 2008), hereinafter referred to as the Act, came into force on October 2, 1951, and leave was granted to the plaintiffs to amend the plaint suitably. The trial court decreed the suit on October 10, 1958, but disallowed the relief for the grant of mesne profits. Three appeals were preferred against that judgment and decree of the trial court. The appellate court dismissed the appeals of the defendants. It held that the suit lands were the khud-kasht lands of the mortgagors, and allowed the appeal of the plaintiffs for mesne profits from the date of the deposit of the mortgage-money. The defendants went in second appeal to the High Court; and the plaintiffs also preferred an appeal for refusal of mesne profits from the date of the cause of action. The High Court partly allowed the defendants' appeal by its judgment dated September 27, 1962. It relied on this Court decision in Haji Sk. Subhan v. Madhorao (1962) 1 Suppl. SCR 123 and held that the plaintiffs were not entitled to possession. It dismissed the appeal of plaintiff Meharbansingh. He applied to this Court for special leave, and that led to this Court's decision in Meharbansingh's case mentioned above. This court allowed the appeal and, after considering the relevant provisions of the Act, remitted the case to the High Court for fresh decisions after notice to the State on the point whether the suit lands were khud-kasht of the plaintiffs and they were entitled to remain in possession under Section 4 of the Act. The State was therefore allowed to be impleaded as a party and to file a written statement. Certain additional issues were framed by the High Court and the case was remitted to the trial court for its findings. When it came to the High Court again, with those findings, it once again took the view that the plaintiffs were not entitled to possession of the suit lands although they were entitled to a decree for redemption. It is against that judgment of the High Court dated February 10, 1972, that plaintiff Meharbansingh has come up to this Court by way of the present appeal.

(3.) The facts of this case are thus quite simple, and its fate depends upon the answer to the question whether the plaintiffs were entitled to possession of the suit lands under sub-section (2) Section 4 of the Act.