BUDHA Vs. AMILAL

JUDGEMENT

(1.) This appeal by Special leave relates to agricultural lands bearing Khasara Nos. 711/531 and 390 situate in village Jat Bhagola in Rajasthan. Lands measuring 3 bighas and 15 biswas bearing Khasra No. 711/ 531 were mortgaged by way of usufructuary mortgage with Sheo Ram, the father of the respondent, under mortgage deed dated November 19, 1952 executed by Kallu Ram. Lands measuring 1 bigha and 10 biswas bearing Khasra No. 390 were mortgaged by way of usufructuary mortgage with the said Sheo Ram under mortgage deed dated April 26, 1955, by Kallu Ram and the appellant. The appellant and Kallu Ram were Biswedars in respect of those lands. The case of the appellant is that on the death of Kallu Ram his property devolved on the appellant. On February 12, 1959, the Rajasthan State Legislature enacted the Rajasthan Zamindari and Biswedari Abolition Act, 1959, hereinafter referred to as the 'Act', which came into force on November 1, 1959. In exercise of the power conferred by sub-section (1) of Section 4 of the Act, the Government of Rajasthan issued a notification dated November 3, 1959 whereby the State Government appointed November 15, 1959 as the date for abolition and acquisition of all settled Zamindari and Biswedari estates throughout Rajasthan and vesting of such estates in the State Government. Under subsection (1) of Section 29 of the Act, as from the date of vesting of an estate the Zamindar or Biswedar thereof- became a malik of any Khudkasht land in his occupation on such date and as such malik he became entitled to all the rights conferred and all the liabilities imposed on a Khatedar tenant by or under the Raiasthan Tenancy Act, 1955. On February 27, 1970 the appellant filed a suit for redemption of the aforesaid mortgages against Sheo Ram in the Court of Munsif Magistrate, Kishangarh Bas. The defendant contested the suit and pleaded that on the abolition of Biswedari. the rights, title and, interest in the lands in question stood transferred and vested in the State of Rajasthan and the appellant did not have the right to redeem the mortgage. It was also pleaded that on the date of the creation of mortgage the appellant and Kallu Ram were not in possession of the lands and that the defendant was in possession of the lands as Kashtkar since before the mortgages. An objection to the Jurisdiction of the Civil Court to entertain the suit was also raised by the defendant. On the basis of the pleadings the Munsif framed 7 issues. Issues 1, 6 and 7, which are relevant for the purpose of the present appeal were:

(2.) The Munsif treated Issue No. 7 as a preliminary issue and, by order dated April 12, 1972, he decided the said issue against the appellant and held that in view of Section 5(2)(b) of the Act, the lands stand transferred to the State and have got vested in the State and the appellant does not have any right to file the suit in respect of the same. In view of the said finding on Issue No. 7 the Munsif dismissed the suit of the appellant. The appellant filed an appeal against the said judgment and decree of the Munsif which was allowed by the Additional Civil Judge by order dated February 27, 1973. It was submitted by the appellant that he had acquired Khatedari rights in the lands at the time of the abolition of the Biswedari under the Act since the lands in question were Khudkasht lands of the appellant and, therefore, the appellant is entitled to maintain the suit for redemption and possession. The Additional Civil Judge held that the name of the appellant appeared as holder of Khudkasht in the annual register and that he has acquired Khatedari rights in respect of the lands in question and he could maintain the suit for redemption of the mortgages. The Additional Civil Judge, therefore, set aside thejudgment and decree of the trial Court and remanded the matter for trial and while doing so observed that the qustion of jurisdiction of the Civil Court to entertain the suit could be agitated as a preliminary issue. The defendant filed a second appeal in the High Court which was allowed by judgment and decree dated April 15, 1986. The High Court held that the appellant did not raise the plea with regard to the lands in question being his Khudkasht lands in the pleadings and any evidence in support of the same could not be looked into. The High Court further held that in paragraphs 1 and 2 of the plaint the appellant has himself pleaded that since the execution of the mortgage deeds, the possession of the lands is with the defendant which clearly shows that the appellant was not in possession of the lands after the execution of the mortgage deeds and therefore the right of the appellant in the lands in dispute stood abolished after the coming into force of the Act and the appellant has no locus stands to bring the suit for redemption and possession of the niortgaged lands. The High Court, therefore, restored the judgment and decree of the Munsif dismissing the suit of the appellant. Feeling aggrieved by the said decision of the High Court, the appellant has filed this appeal.

(3.) Shri Bachawat, the learned Counsei for the appellant, has urged that the High Court was in error in holding that the appellant has no subsisting right in the lands in dispute after the coming into force of the Act. The learned Counsel has submitted that in the Jamabandies of Samvat Years 2013 and 2019 the appellant is shown as Kashtkar of the lands in question and that the said lands were 1 Khidkasht lands of the appellant in view Of the definition of the expression "khudkasht" contained in Section 5(23) of the Rajasthan Tenancy Act, 1955, which definition 'is aPplicable to the Act by virtue of Section 2(6) of the Act. Shri Bachawat has contended that under Section 29(1) of the Act the appellant has acquired Khatedari rights over thesaid lands which were recorded as his Khudkas lands. The further submission of Shr' Bachawat is that for the purpose of the lands being Khudkasht lands it is not necessary that Reported in 1986 Raj LW 480 the appellant should have been in actual possession of the same and that such possession could also be constructive possession through the mortgagee. Shri Bachawat has placed reliance on the decisions of this Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, 1959 Supp (1) SCR 968: (AIR 1959 SC 577); Harlhar Prasad Singh v. Must. of Munshi Nath Prasad, 195SCR :(AIR 1956 SC 305) and Kailash Rai v Jai Jal Ram, (1973) 3 SCR 411 : (AIR 1973 SC 893).