HARIDWAR SINGH Vs. GHIRRAU SINGH

JUDGEMENT

(1.) This appeal has been filed by a defendant against whom a decree for possession, has been passed in the following circumstances. The respondent was a co-sharer in a village. He and some co-sharers of the village had a joint sir-holding which included the land in dispute in this appeal. By a private arrangement among the joint sir-holders the land in dispute was in the exclusive occupation of the respondent. Thus though he and some co-sharers jointly owned the land in dispute it was by private arrangement among them in the sole cultivation of the respondent. On 12-10-1944 he mortgaged it with possession with the appellant for 10 years; it was agreed between the parties that the mortgage would be satisfied from the usufruct in 10 years and that thereafter the appellant would restore the respondent to possession. The appellant entered into cultivatory possession of the land in dispute and continued to be in possession till the date on which the present suit was instituted against him by the respondent. The suit was instituted on the contentions that the usufructuary mortgage was substituted by a simple mortgage under Section 6 (g) (i) of the Zamindari Abolition and Land Reforms Act and that consequently the appellant was not entitled to remain in possession. The appellant resisted the suit pleading that he had been admitted as a tenant by the respondent after the execution of the mortgage, that he had acquired sirdari rights under the Zamindari Abolition and Land Reforms Act and the respondent was not entitled to recover possession from him and that the suit was barred by Section 180 (2), U. P. Tenancy Act and also by time. The suit Was decreed by the lower appellate Court on the finding that Section 14 of the Zamindari Abolition and Land Reforms Act deprived the appellant of a right to remain in the possession after 30-6-1952, that he did not acquire any rights either as a sirdar or as a bhumidar under the Act, that the respondent acquired rights of a bhumidar and that he was entitled to be restored to possession.

(2.) In Suresh Dutta v. Chhanga Lal, 1962 All LJ 612, to which' I was a party, it was "held, that the words "snare therein" in Section 14 (1) of the Act do not mean specific plots in an estate-and mean a fractional portion of an estate and that when a proprietor has mortgaged specific sir plots with possession, Section 14 would not apply and the mortgagor would not be entitled to claim bhumidari rights under Section 18 on the ground that the land was his sir. This appeal came up for hearing before Mithan Lal, J., who thought that the decision in Suresh Dutta's case, 1962 All LJ 612 required reconsideration and referred it to a larger Bench and so it has been laid before us.

(3.) When the respondent mortgaged the sir plots U. P. Tenancy Act of 1939 was in force. Under Section 9 of it sir right was not transferable except by gift or exchange and under Section 11 land ceased to be sir when the sir-holder became an exproprietary tenant but if the ex-proprietor regained his proprietary rights in it it again became his sir. Section 26 was as follows: "26 (1) When the landlord of the whole of a mahal or of a specific area in a mahal transfers the whole of his proprietary right in such mahal or area ......... the landlord shall become an ex-proprietary tenant of his sir ......... (2) When the landlord of a share in a mahal or in a specific area in a mahal so transfers the whole of such share ......... the landlord shall become an ex-proprietary tenant of his sir ......... and which in the case of joint sir or joint khudkasht is demarcated by the officer empowered to fix the rent of the holding under the provisions of Section 36 of the United Provinces Land Revenue Act, 1901. (3) When the landlord of the whole or of a share of a mahal ......... so transfers a part of such whole or of such share, or such area ........ the landlord shall become an ex-proprietary tenant of so much of his sir ......... as appertains or corresponds to such part and is demarcated by the officer empowered to fix the rent of the holding under the provisions of Section 36 ......... (5) Every person who becomes, an ex-proprietary tenant under the provisions of this section ......... shall be entitled to all the rights conferred ......... on ex-proprietary tenants by this Act and ......... the rent ....... shall be fixed in accordance with the provisions of this, Act by the officer empowered to do so under the provisions of Section 36 ......... (6) A mortgage shall be deemed to be a transfer within the meaning of this section when it has the effect of transferring proprietary possession of the mortgaged property from the mortgagor ............" Section 36 of the U. P. Land Revenue Act provided that when ex-proprietary rights accrued under the U. P. Tenancy Act the Collector would in the course of mutation proceedings pass an order specifying, and if necessary demarcating, the land in which such rights accrued and fixing the rent payable therefor and that if for any reason an order specifying and demarcating the land and fixing the rent payable had not been passed the land-holder or tenant could at any time during the, continuance of the ex-proprietary tenancy apply for the issue of such order. Section 27 rendered null and void an agreement for the relinquishment of ex-proprietary rights, whether it was entered into before or after they accrued; in other words ex-proprietary rights accrued by operation of law and it was not open to the mortgagor of sir land to prevent their accrual. When a sir-holder mortgaged the sir land with possession it only meant that possession over the proprietary rights of the sir land was transferred to the mortgagee and not the cultivatory possession over them; he became an ex-proprietary tenant liable to pay rent to the mortgagee. On account of the possession over the proprietary rights being transferred to him the mortgagee became entitled to realise rent, as proprieto, and the sir-holder became liable to pay rent and that is why the law compulsorily made him an ex-proprietary tenant and fixed the rent to be paid by him to the mortgagee. The mortgage was of only the proprietary rights and the mortgagee was entitled, on account of the mortgage being a usufructuary one, to possession only over the proprietary rights. The sir-holder had also the right of exclusive possession on account of the land being his sir, but this right was not mortgaged by him and, therefore, the mortgagee could not claim that he had a right to be in cultivatory possession. In order that a proprietor is in possession of the land owned by him it is not essential that he must cultivate it himself; he is in possession even though the land is cultivated by a tenant, if he realises rent from him and, therefore, a usufructuary mortgage by a sir-holder of the sir land meant only this that the mortgagee came in possession of the proprietary rights over it and that the sir-holder became an exproprietary tenant liable to pay to him the rent fixed under Section 36 of the Land Revenue Act. The sir-holder could not relinquish the ex-proprietary rights that accrued to him. He could certainly relinquish the cultivatory possession by putting the mortgagee in cultivatory possession but he remained an ex-proprietary tenant of the same. On account of his being an ex-proprietary tenant he was entitled to remain in possession and, therefore, as soon as he put the mortgagee into cultivatory possession he became entitled to recover it back from him under Section 183 of the U. P. Tenancy Act, which laid down that "Any tenant ......... preyenterl from obtaining possession of his holding ......otherwise than in accordance with the provisions of the law for the time being in force by (a) his land-holder ......... may sue the person ......... keeping him out of possession ( i) for possession of the holding." The period of limitation for such a suit was three years commencing on the date on which he was prevented from obtaining his possession.