KALLOO SINGH Vs. RAM MURAT SINGH

JUDGEMENT

(1.) DEOKI Nandan, J. This is a defendant's second appeal in a suit for redemption of a usufructuary mortgage and possession over certain plots of agricultural land. The ancestors of the plaintiff-respondents had mortgaged the land in suit (except for plot No. 408 which has been found by the lower appellate Court not to have been included in the mortgage) by a registered deed of mortgage dated 26th August, 1895 and delivered possession to the mortgagee. Babua Pandey, who is now represented by defendant-respondents Nos. 8 to 11. According to the plaint case the mortgagors as well as the mortgagee were agriculturists and the mortgage money which was only Rs. 75/. had long since been paid off by the produce and nothing was due from the plaintiffs, and that the plaintiffs had demanded possession over the mortgaged property from Smt. Bhagirathi and Smt. Jashoda, widows of Babua Pandey the original mortgagee, but they refused. Hence the suit. The plaint further alleged that Smt. Bhagirathi and Smt. Jashoda, the aforesaid widows of Babua Pandey were themselves not in actual cultivatory possession of the land in 1359 F hence they did not become Assamis out the abolition of Zamindari and the revenue Court had no jurisdiction to entertain the suit while defendant respondents Nos. 8 to 11 were defendants No. 1 to 4 in the suit, the defendant-appellants were defendants Nos. 5 to 8. The plaint goes on to allege that defendant No. 5 was in possession of plot No. 443 (0-16-0) and 444 (0-18-0) defendant No. 6 in possession of plot No. 355/1 area (3-18-0) defendant No. 7 in possession of plot No. 302 area (4-13-0) and defendant No. 8 in possession of plot No. 103 area (1-3-0) under defendants Nos. 1 to 4. They have no right in the land and were liable to ejectment on the plaintiffs suit. One of the plots of land included in the mortgage and specified in List' Act the foot of the plaint was said to be in the plaintiff's possession. The cause of action was said to have arisen on 30th June, 1957 as the date of the last refusal by the defendants to restore possession. The relief claimed was redemption of the mortgage, which was the basis of the suit the possession over the plots of land included in List 'b'. The total number pf plots included in List 'b' is 13 having an area of 21 big has, 19 biswas. Out of them plot No. 408 having an area of 1 bighas, 8 biswas goes out on the finding of the lower appellate Court that it was not included in the mortgage, leaving 12 plots having an area of 20 bighus, 11 biswas out of these five plots Nos. 443, 444, 355/1, 302 and 103 are said to be in possession of the four defendants Nos. 5 to 8. Nothing was said in the plaint about the other plots of land. Since the relief of possession claimed in the suit, one might assume that the plaintiffs were not in possession over the remaining 7 plots included in List 'b'. Defendants Nos. 1 to 4 and 6 did not contest the suit. Only defendants Nos. 5, 7 and 8 have contested the suit. Defendant No. 6 is, however, one of the appellants, being appellant No. 2. It is not necessary to recite the defendant in any detail except for observing that the defence gave rise to the following issues. 1. Whether the mortgage debt has been paid up by the usufruct of the mortgaged property ?

(2.) WHETHER the defendants 1 to 8 are liable to ejectment in this suit?

(3.) WHETHER the plaintiffs have a right to maintain this suit ? The concurrent finding of both the Courts below is that the mortgage deed (Ext. 15) relied upon in the plaint was executed by the plaintiff's ancestors in favour of Babua Pandey on 26th August, 1 895 and that the mortgage debt stood paid off by long possession of the mortgagee over the land in suit, and that the mortgagee was not in actual cultivatory possession of the land in suit in 1359-F and did not therefore become an Assami under Section 21 (1) (d) of the U. P. Zamindari Abolition and Land Reforms Act. I may here mention that the status of the plaintiff's predecessors was that of a fixed rate tenant. The mortgage made by them was lawful and valid and the letting of the land by the mortgagee was also lawful and valid. The dispute between the parties at the trial was confined to the status of the defendants Nos, 5, 7 and 8 on the four plots of land occupied by them. The question was whether they became Adhivasis under Section 20 of the Act and thereafter sirdars, on the abolition of Zamindari or that they became sirdars after the expiry of the period of limitation for a suit for ejectment whether along with the mortgagee under Section 202, if their possession was deemed to be the possession of the mortgagee, or themselves alone as authorised occupants, under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act. The trial Court held that the contesting defendants did not become Adhivasis, whether as sub tenants or as occupants of the land held by them from the mortgagee, nor did they become Sirdars of the land. It also found that there was no specific evidence regarding the possession of defendants Nos. 1 to 4. It held that if they are in possession over the plots of land since the time of mortgage, they will be Assamis and no suit will lie in the civil Court for their ejectment, but if they are not in possession, no decree for redemption can be passed as it would be infructuous. It also held that if defendants Nos. 1 to 4 are mort gagees possession, they would be Assamis and defendants Nos. 5 to 8 would be trespassers and suit for possession against either of the two sets of the defen dants will lie in the revenue Court alone and it dismissed the suit accordingly. The lower appellate Court found that plot No. 408 having an area of 1 bigha, 8 biswas was pot included in the mortgage, that the widows of Babua Pandey namely Sent. Bhagirathi and Smt. Jashoda, was not in possession in 1359-F over the land in suit and, therefore, defendants Nos. 1 to 4 who were their heirs could not be Assamis, but strangely enough, it added that "their possession remains only that of mortgagees", Before, I proceed further it must be clarified that if the learned Judge of the lower appellate Court meant to hold that defendants Nos. 1 to 4 (respondents Nos. 8 to 11 in this Court) were in possession over the land as mortgagees, the finding could be said to be based on no material, although the claim of relief of possession over all the plots of land in List 'b' suggests that defendants Nos. 1 to 4 were in possession over those of the plots which were not in possession of defendant Nos. 5 to 8. There is no specific averment in the plaint that defendants Nos. 1 to 4 have been in possession of any of the plots of land continuously since the date of the mortgage. On the other hand the specific averment contained in para graph 17 of the plaint is that the two widows of the mortgagee Babua Pandey were not in cultivatory possession of the land in 1359-F and that their status was not that of Assami and the suit did not lie in the revenue Court. How ever, since defendants Nos. 1 to 4 did not contest the suit and have not appeared in this Court either, it is not possible to interfere with the decree for possession, that has been passed against them, and the only question which arises for determination in the appeal is about the status of the defendant appellants in the specific plots of land in which they were let in be possible to grant any relief to defendant No. 6, who is the second appellant, for, although according to the plaint the position of each one of the four defendants Nos. 5 to 8 was similar, defendant No. 6 did not contest the suit by filing a written statement or leading evidence to controvert the allegations made against him, Even defendants Nos. 5, 7 and 8, who contested the suit and filed written statement, did not say anything to controvert the plaint allegation against defendant No. 6. The plaint allegation against defendant No. 6 must, there fore, be deemed to be admitted and no dispute could be raised in respect of the same in this second appeal. The first point raised by Mr. Sankatha Rai is that the defendant appellants, and when I refer to the defendant-appellants hereafter I mean appellants Nos. 1, 3 and 4, who were defendants Nos. 5, 7 and 8 respectively, became Adhivasis under Section 20 of the U. P. Zamindari Abolition and Land Reforms Act, and in any case under the U. P. Land Reforms (Supple mentary) Act, 195, for having been in cultivatory possession as a recorded occupant in 1356-F and also for having been in actual cultivatory possession both in 1356-F, and in 1359-F. 1 may here refer to Ext. A-8 which is certified copy of the Khatauni for 1359-F. It shows Smt. Bhagirathi and Smt Jashoda, widows of Babua Pandey to be in possession over a long list of plots of land including the plots in dispute as Assamis of fixed rate tenant. Part II of the same Khatauni shows Gudar and Chander, that is the third appellant Gudri and his brother, to be recorded as a tenant of plot No. i02 Jeobodh, father of Kashi, appellant No. 4 of plot No, 103 and Jhuri, father of Kalloo Singh, appellant No. 1, of plot Nos. 443 and 444. Ext. A-7 which is the certified copy of Khatauni for 1356 F. Similarly shows the names of Smt. Bhagirathi and Smt Jashoda, widows of Babua Pandey recorded in part I of the Khatauni as Assamis of a fixed rate tenant, but in part 1, only the name of Jeobodh is shown as sub-tenant of class 19 in respect of plot No. 103 among others. The entry in favour of Jeobodh appears to have been continuing since 1341-F vide Ext. A-6 which shows the name of his father Jitan recorded in Part II as a sub-tenant of class 19 of the Khatauni Ext. A-4 is the Khasra for 1359- F which shows the name of Jeobodh recorded in column 6 of plot No. 103 and that of Smt. Bhagirathi and Smt. Jashoda in column No. 5 Ext. 11 which is a certified copy of the Khasra of 1359-F shows the names of Gudar and Chander, that is appellant No. 3 on plot 302 and Jhuri father of Kalloo, appellant No. 1 on plot Nos. 443 and 444 in column No. 6, in addition to the name of Jeobodh on plot No. 103 in column No. 6. There does not appear to be any other Khasra or Khatauni for 1356-F or 1359-F. The point raised by Mr. Sankatha Rai may thus be answered, by a process of elimination, by saying that so far as appellants Nos. 1 and 3, namely, defendants Nos. 5 and 7 are concerned, there is no material on the record to show that they were recorded occupants in 1356-F. They could not claim the rights of an Adhivasi under clause (b) of Section 20 of the U. P. Zamindan Abolition and Land Reforms Act, nor could Jeobodh claim to have acquired Adhivasi rights as a recorded occupant under clause (b) of Section 20 on the basis of the Khatauni entry for 1356-F in his favour in view of the Full Bench decision of this Court in Basudeo v. Board of Revenue 1974 A. L. J. 706. The question is whether the three appellants Nos. 1, 3 and 4 could claim to have become Adhivasis on the ground that they were sub-tenants on the date immediately preceding the date of vesting under clause (a) of Section 20 on the basis of the Khatauni entries in 1359-F, vide Ext. A-8. Mr. Sankatha Rai referred to the Division Bench decision of this Court in Pulloo v. Deputy Director of Consolidation 1976 A. L. J. 288, in this context. Although on the facts of that case, it was held that a sub tenant from a mortgagee did not acquire Adhivasi rights either under Section 20 (a) or Section (b) (i) of the U. P. Zamindari Abolition and Land Keforms Act, it has been observed therein while dealing with a Full Bencn decision of this Court in Mansoor Husain v Mir Khan 1974 A. L. J. 274, with reference to the mortgagees powers of admitting a tenant in due course of management under Section 76 (a) of the Transfer of Property Act, that- ''it may be that if a mortgage had been redeemed before coming into force of the U. P. Zamindari Abolition and Land Reforms Act yet the sub-tenant from the mortgagee continued in possession and was in possession on the date immediately preceding the date of vesting in that capacity he may acquire adhivasi rights under Section 20 (a) provided by the tenancy had been created by the mortgagee in the course of prudent management. " This is followed by the observation in the case (Pulloos case supra) that the mortgage had not been redeemed before the date of vesting. In the present case too the frame of the suit and the relief claimed therein suggest that the mortgage was not redeemed. But Mr. Sankatha Rai argued that all this had been done by the plaintiffs falsely to bring the suit within the jurisdiction of the civil Court and the prayer for redemption was even added later by the learned counsel in his own hand and the fact of the matter was that the suit was a plaint suit for possession. Mr. Sankatha Kai enforced his contention by relying on the averment in the plaint that the mortgage money stood paid up and also on the finding of the lower appellate Court that the mortgage money did stand paid up by the long possession of the mortgagee. Mr. Sankatha Rai contended that all this occurred before the date of vesting and according to the law declared by the Supreme Court in Prithvi Naih v. suraj Nath A. I. R. 1963 S. C. 1041, it must be deemed that the mortgage stood redeemed on payment of the mortgagee money before the date of vesting. Mr. Sankatha Rai represents the defendants and not the plaintiffs and could not, therefore, be said to be bound by anything said in the plaint and he referred to the pleas raised in paragraphs 3 and 8 of the additional pleas in the two written statements, the first on behalf of defendants Nos. 5 and 7 and the second on behalf of defendant No. 8. The mortgagee or his representatives have not come forward to claim any amount as mortgage money. Indeed they have not defended the suit at all. The lower appellate Court has found that the mortgage money stood paid up by the long possession of the mortgagee. It does appeal from the material on the record that the mortgage money was paid up before the date of vesting. That being so, in view of the law declared by the Supreme Court in Prithvi Nath v. Suraj Nath (supra), it must be held that the mortgage stood extinguished before the date of vesting, and it was not necessary for the plaintiffs to have sued for redemp tion. They were entitled to possession straightway. The mortgage was lawful. The tenancies created by the mortgagee were also lawful. It is no body's case that they were not created in the due course of prudent manage ment of the property by the mortgagee. The result would be that defendant appellants Nos. 1, 3 and 4 became the sub-tenants of the plaintiffs mortgagors on the extinguishment of the mortgage, before the date of vesting. The Khatauni entries of 1359-F also showed them recorded as sub-tenants of class 19. It is undisputed that they were in possession in 1359-F. It must, therefore, be held, following the observations of the Division Bench in Pulloo's case referred to above that the defendant appellants Nos. 1, 3 and 4 became Adhivasis under clause (a) of Section 20 of the U. P. Zamindari Abolition and Land Reforms Act. They must be deemed to have become sirdars thereafter and now Bhumidhars along with all the sirdars in the State. They were not liable to be evicted from the land. Mr. G. P. Bhargava however, relied on the Full Bench decision in Balwant v. Deputy Director of Consolidation A. I. R. 1975 All. 295. That was a case of a mortgagee whose rights became extinguished under Section 14 (1) of the U. P. Zamindari Abolition and Land Reforms Act, and the question was whether the possession of such a mortgagee on or after the date of vesting was per se adverse or permissive. That is not the question in the present case. The other cases relied upon by Mr. G. P. Bhargava to show that the possession of the defendant-appellants was of a licensee are distinguishable on the same ground. In the result the appeal must be allowed in so far as the plots of land held by defendant-appellants Nos. 1. 3 and 4 are concerned. Mr. G. P. Bhargava stressed the point and I think rightly that the appeal could not be allowed in respect of other plots of land for no one contested the suit with regard to them. In view of the aforesaid discussion the other points which were raised and argued by Mr. Sankatha Rai in the last resort do not require considera tion. The appeal succeeds and is allowed in part. The judgment and decree of the lower appellate Court are set aside in so far as the defendant-appellants Kalloo Singh, in respect of plots Nos. 443 (area 16 biswas) and 444 (area 18 biswas); Gutiri in respect of plot No. 302 (area 4 bighas, 13 biswas) and Kashi in respect of plot No. 103 (area 1 bigha, 3 biswas) are concerned; the suit as against these defendant-appellants Nos. 1, 3 and 4 is dismissed and they shall be entitled to their costs throughout against the plaintiffs- respondents. .