MEHARBAN SINGH Vs. NARESH SINGH

JUDGEMENT

(1.) This is the plaintiffs' appeal by special leave from a common judgment and decree of a learned Single Judge of the Madhya Pradesh High Court at Gwalior dated September 27, 1962 partially allowing the defendants' second appeal and dismissing that of the plaintiffs.

(2.) It is not necessary to state the detailed facts of the case. Facts necessary for the purpose of this appeal alone may briefly be stated. In May 1939, Samle Singh and Jomdar Singh created a mortgage of the suit land in favour of Munshi Singh for a sum of Rs. 2242/14/-. It is said that in May, 1943 notice given by the mortgagors for redemption of the mortgage was refused by the mortgagee. In June, 1943 the suit giving rise to the present appeal was instituted for redemption of the mortgage. Some other persons who were found to be in possession of the land, claiming to be tenants, were also impleaded as defendants. On May 25, 1951, Madhya Bharat Zamindari Abolition Act XIII of 1951 was enforced. It appears that an application to amend the plaint as a result of the new enactment was disallowed by the trial Court, but on revision the Madhya Pradesh High Court by its order dated October 10. 1955 reversed the order of the trial Court and permitted the plaintiffs to amend the plaint. The pleadings after the amendment gave rise to nearly 17 issues on the merits. On October 10, 1958 the suit was decreed in respect of the relief for redemption but claim in regard to mesne profits was disallowed. Preliminary decree for redemption was accordingly granted. In the course of its judgment the trial Court observed under issue No. 10 as follows :

(3.) Three appeals were presented in the District Court against the decree founded on this judgment, one of them being by the plaintiffs challenging refusal by the trial Court to grant mesne profits. In October, 1960 the plaintiffs' appeal was partly allowed and mesne profits decreed from the date of deposit of the mortgage amount in Court. The other two appeals were dismissed. That Court disposed of all appeals by a common judgment and came to the conclusion that the lands had been mortgaged with possession by Samle Singh and Jomdar Singh with Munshi Singh and that they were under self-cultivation of the plaintiffs before the mortgage, the mortgagees having come into possession by reason of the mortgage. The matter was taken by the defendants to the High Court on second appeal, the plaintiffs having also preferred an appeal in that Court against the decree of the first appellate Court declining to give full relief claimed in regard to mesne profits. In the High Court also three appeals were presented. The High Court partially allowed the defendants' appeal in view of the provisions of the Madhya Bharat Zamindari Abolition Act XIII of 1951. The plaintiffs were held entitled to redeem the mortgage by paying the mortgage money but disentitled to get possession of the mortgaged land. The proprietary rights including the right to get possession having vested in the State under the aforesaid Act the plaintiffs, according to the High Court, could only claim compensation from the Government on the basis of their proprietary rights after redeeming the mortgage by making payment of the mortgage money. In support of this view the High Court relied on this Court's decision in Haji Sk. Subhan v. Madho Rao (1962) Supp 1 SCR 123 = (AIR 1962 SC 1230), considering that decision to be decisive of the point in issue. That decision, however, appears to us to be directly concerned with the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Madhya Pradesh Act 1 of 1951).