BHORE LAL Vs. MANGALIYA

JUDGEMENT

(1.) THIS reference has been made by a Division Bench posing the following question : - "where, before the abolition of his biswedari under the Rajasthan Zamindari and Biswedari Abolition Act 1959, a biswedar makes a usufructuary mortgage of his biswedari lands does he, after the abolition under the Act, become a khatedar tenant thereof and is entitled to institute and continue a suit for possession or redemption against the mortgagee without or on payment of mortgage money and, if yes, under what circumstances" ?

(2.) IN order to appreciate the point raised, it would be useful to recount the facts of the case. The plaintiff respondent Mangaliya was biswedar of the suit land. By a registered deed dated 3-12-52, he made a usufructuary mortgage of this land in favour of Bhore Lal for Rs. 900/- and in pursuance thereof Bhore Lal entered into possession. On 1-11-59, the Rajasthan Zamindari and Biswedari Abolition Act came into force. IN due course, in exercise of its powers under section 4 of the Act, the State Government abolished all zamindari and biswedari estates, including that of the plaintiff, who thereupon filed a suit for redemption and possession of the mortgaged land in the court of the Sub-Divisional Officer, Kishangarh Bas. The plaintiff contended that under sec. 5 (j) of the Act the usufructuary mortgage had been converted into a simple mortgage and he had become khatedar tenant of the land and the defendant number 1 Bhore Lal was now a trespasser. As far as the mortgage money was concerned, it was a charge on the compensation amount payable by the State Government to him and no money under the mortgage remained due from him to Bhore Lal. It was, therefore, contended that he was entitled to get back the land from the defendants, and in the alternative he said that if it was found that he was liable to pay the mortgage money he was prepared to pay. Since the name of Chhota appeared in the khasra girdawari, he too was made a defendant to the suit.

(3.) IN other words, says counsel, while the zamindar or biswedar has been permitted to retain his khudkasht, such retention is only in respect of khudkasht land in his occupation on the date of vesting. He contends that the plain meaning of the word "occupation" is actual physical possession and that in this case, since it was an admitted fact that a usufructuary mortgage had been made in favour of the defendant-appellant Bhore Lal, the plaintiff an ex-biswedar Mangaliya could not claim to have been in occupation of the land on the date of vesting. Even if the land were recorded as his khudkasht, in view of the provisions of sec. 29 this land could not be retained by him but would vest in the State. Shri Jatan Chand has also drawn attention to sec. 43 of the Rajasthan Tenancy Act and says that if it was the intention of the legislature to preserve the rights of a biswedar mortgagor by creating a legal fiction as to his possession on the date of vesting, a clause to this effect would have been added in this section or at any rate in sec. 5 (2) (j) of the Zamindari and Biswedari Abolition Act.