SETH GOVERDHAN DAS Vs. SLTABAI

JUDGEMENT

(1.) THE appellants brought a suit against the respondent for possession of a plot Kharsa No. 1227 having an area of 58.35 acres of Monza Shahpur, Tehsil Burhanpur in November, 1950 on the ground that they had been unlawfully dispossessed from this land. This land formed part of the property of one Laxmanrao who had two sons Vishwasrao and Krishnarao. Krishnarao had two sons Dinkerrao and Shamrao.

(2.) SHAMRAO was adopted by Vishwasrao in the year 1895. The rights in certain village properties, including 'Sir' lands, vested in this joint family consisting of Vishwasrao, his adopted son Shamrao, and his nephew Dinkerrao. The three of them jointly executed two mortgage deeds in that year, and, in the mortgage deeds, mentioned that they were mortgaging the property which was described as 'Malguzari Mouzas and Sir land of Tehsil Burhanpur District Nimar', and 'Maufi Government land' situate in certain villages in Pargana Jainabad, Tehsil Burhanpur. The mortgages were in favour of the predecessors-in-title of the appellants. In the year 1928, there was a partition in the joint Hindu family of the mortgagors. By this time, Dinkerrao had died leaving two sons Ramchandrarao and Wamanrao. Vishwasrao and Shamrao had also died and Shamrao left an adopted son Shankerrao alias Narayanrao, who was the natural son of Dinkerrao, but had been adopted by Shamrao. The parties to the partition were, therefore, Shankerrao, the adopted son of Shamrao Ramachandrarao and Wamanrao the sons of Dinkerrao. Shankerrao received 1 share in the property, while Ramachandrarao and Wamanrao received 1/4 share each. In that partition Wamanrao separated from Shankerrao and Ramachandrarao who continued to be joint, and, with the consent of the mortgagee, the mortgage liability was not continued against the share of Wamanrao. The liability under the mortgages was undertaken entirely by Shankerrao and Ramachandrarao. On this partition, in the property remaining joint with Shankerrao and Ramachandrarao, Shankerrao had 2/3rd share and Ramachandrarao had 1/3rd share, because, originally, before partition Shankerrao was entitled to 1/2 share and Wamanrao to 1 share.In the year 1939, the proprietary rights of Shankerrao were purchased by one Vinayakrao, so that, under the law then existing, Shankerrao became the ex-proprietary occupancy tenant of his share in the 'Sir' plot No. 1227. In 1940, 'Ramachandrarao was declared insolvent and his share in the proprietary rights, which vested in the Insolvency Court, was sold and purchased by the mortgagee. The result was that Ramachandrarao also became ex-proprietary occupancy tenant of his 'sir' plot No. 1227, so that this plot became a co-tenancy of Shankerrao and Ramachandrarao in the capacity of ex-proprietary occupancy tenants. Thereafter, there was some dispute about the amount and the right of redemption under the mortgage between Shankerrao and the mortgagee, and this dispute was referred to an arbitrator, Sri Vipat. who gave his award, on the basis of which a decree was passed by the Court of Additional District Judge, Khandwa. In pursuance of that decree, Shankerrao's 2/3rd share, including his rights in the 'sir' plot No. 1227, was purchased by the mortagee. In 1940, Ramachandrarao had died and his ex-proprietary occupancy rights in that plot No. 1227 had vested in his widow, Sitabai, the respondent in these appeals. In 1942, when she was dispossessed from this plot No. 1227 in pursuance of the mortgage decree passed in terms of the award, she filed an application to the Revenue Court under sections 12 and 13 of the Central Provinces Tenancy Act 1 of 1920 (hereinafter referred to as "the Act") for restoration of possession of her occupancy rights in this plot No. 1227. The Revenue Court allowed her claim and restored her to the possession of this plot. Thereupon, the appellants filed the suit claiming possession of this plot as mentioned above. The suit was partially decreed by the trial Court granting to the appellants the right to joint possession with Sitabai on the basis that they had 1/3rd share in the plot, while Sitabai continued to be entitled to the remaining 2/3rd share. Both parties filed appeals to the Court of the District Judge, Khandwa. The lower appellate Court dismissed the appeal of the appellants in respect of the 2/3rd share in this plot No. 1227, and allowed the respondent's appeal in respect of the 1/3rd share of the same plot, with the result that the whole suit of the appellants stood dismissed. The appellants then filed two appeals before 'the High Court of Madhya Pradesh. The High Court dismissed both the appeals and consequently, the appellants have now come up to this Court against that judgment of the High Court in this appeal by special leave.The High Court in its judgment held that the finding of fact recorded by the lower appellate court that the mortgagees in the year 1895 did not get possession over cultivatory rights in this plot was decisive of the claim put forward in this case on behalf of the appellants. The Court was of the view that, not having obtained possession over the cultivatory rights, the appellants were not entitled to claim actual possession from the mortgagors, who had become occupancy tenants of this plot. We consider that this decision arrived at by the High Court is perfectly correct.

(3.) LEARNED counsel appearing on behalf of the appellants put before us one provision of the C.P. and Berar Tenancy Act of 1883, which was then in force, to show that the rights of ex-proprietary tenant could only accrue if the proprietary rights in 'sir' land were transferred by sale and not if they were transferred by usufructuary mortgage. The whole of that Act was not placed before us and, consequently we have been handicapped in our effort to determine what rights accrued to the mortgagors when the usufructuary mortgages were executed by them, but possession over cultivatory rights in the 'sir' land was retained. In the circumstances, we considered it advisable to examine the position on the basis of both alternatives. One alternative is that they became ex-proprietary occupancy tenants when the usufructuary mortgages were executed. The other alternative is that the rights of ex-proprietary tenants--did not accrue, but they did become tenants of the mortgagees in whom the proprietary rights vested because of the usufructuary mortgages. Even if the mortgagors became ordinary tenants in 1895 it is clear that, by the time the Act came into force in the year 1920, they must have become occupancy tenants as defined in s. 10 of the Act. Section 10 lays down that "Every tenant who is not an absolute occupancy tenant or a sub-tenant is an occupancy tenant."Clearly, the mortgagors were not sub-tenants nor is it the case of any party that they were absolute occupancy tenants of this plot No. 1227. Consequently, they must be held to be occupancy tenants of this plot under the Act. Long before the year 1939, therefore, the mortgagors must be held to have become occupancy tenants of this land or exproprietary occupancy tenants of it. The claim of the appellants that they acquired rights to possession of this land on the basis of the mortgages of 1895, in these circumstances, must fail.