Bhikhi Singh v. Lakhpat and Dal Chand — 1958 DIGILAW 64 (ALL)

JUDGMENT Gurtu, J. - The facts which give rise to this second a appeal may be stated as follows: Lakhpat Singh, Pirthi Singh and Kamalia (who or whose representatives in interest are the respondents in this second appeal) created a mortgage over four plots by a document dated 7-6-1922 in favour of Bhiki Singh, Timak Lal, Kewal Singh and Ganpat Singh who, or whose representatives in interest, are the appellants in this appeal. The plots mortgaged under the said document are Nos. 786, 787, 788 and 773. 2. An application was made u/S. 12 of the UP Agriculturists' Relief Act by Lakhpat Singh and others for redemption of the mortgage. That application was contested and became a suit and was disposed of by an order dated 22-11-1951. The suit for redemption of the property was decreed. The plaintiffs were ordered to deposit Rs. 2,000 in court within six months and the property was then to stand redeemed. On such a deposit being made, the plaintiffs were given the right to sue in the proper court for possession of the mortgaged plots. In default of payment within the time specified, the application, which had been turned into a suit, was to stand dismissed. A preliminary decree was, however ordered to be prepared. 3. After the passing of the order dated 22-11-1951, the UP ZA and LR Act came into force and proceedings were stayed. 4. Then it appears that the mortgagees made an application in the revenue court U/S. 14 of the said Act against the mortgagors. The mortgagors put in appearance in those proceedings. The claim of the mortgagees was that they had become the Sirdars of plot No. 773 and that they were the Bhumidhars of the other plots. The revenue court, namely, the Sub-Divisional Officer (who was an Assistant Collector of the first class) by his order, dated 7-4-1953 made an order in favour of the mortgagees, as prayed, and dismissed the objections of the mortgagors. 5. Thereafter the mortgagors and their representatives-in-interest filed the present suit No, 184 of 1953, in the court of II Munsif Bulandshahr. That suit, we are informed, was filed U/S. 209 of the said UPZA and LR Act. 6. 5. Thereafter the mortgagors and their representatives-in-interest filed the present suit No, 184 of 1953, in the court of II Munsif Bulandshahr. That suit, we are informed, was filed U/S. 209 of the said UPZA and LR Act. 6. The plaintiffs allegations as set out in the plaint, were that they were the mortgagors or the representatives-in-interest of the mortgagors and the defendants were the mortgagees or the representatives-in-interest of the mortgagees and that the mortgagees were put into possession under the said mortgage deed, but that the mortgage had come to an end and the plaintiffs had become entitled, by the coming into force of S. 14 of the said Act, to possession of the mortgaged plots by reason of the fact that these plots were their Sir and Khudkasht on the date of the mortgage and that, by virtue of S. 14, sub-S. (2), Cl. (a), the plots should be deemed to be their Sir or Khudkast even after the date of vesting. The plaintiffs further alleged that the mortgagees had no further right and that the cause of action arose on 7-4-53 when the order of the Sub-Divisional Officer already referred to above was passed. 7. The suit was contested and, inter alia, it was pleaded that the civil court had no jurisdiction. An issue was framed on the question of jurisdiction and both the courts below have held that the civil court had jurisdiction. The said two courts have decreed the claim of the plaintiffs for possession over the plots in suit upon finding that the plaintiffs were the Bhumidhars of the suit plots. The view taken by the court below may be quoted below in its own words :- In my opinion, therefore, the decision of the Assistant Collector U/S. 14 (b) is not final and it is open to the civil court in a suit before it to decide as to who was in possession over the mortgaged property at the time of the execution of the mortgage deed. It is also argued that the suit for possession was not maintainable U/S. 209 of the Act as the mortgagee defendants were in possession over these plots in accordance with the decision of the Assistant Collector U/S. 14 (b) and were not trespassers. It is also argued that the suit for possession was not maintainable U/S. 209 of the Act as the mortgagee defendants were in possession over these plots in accordance with the decision of the Assistant Collector U/S. 14 (b) and were not trespassers. U/S. 209, a person retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force shall be liable to ejectment on the suit of a Bhumidhar, if the land in question is Bhumidhari and the person in possession is in possession without the consent of Bhumidhar. In this case, the plots in dispute are the Bhumidhari of the mortgagors by virtue of S. 14(b) and the defendant mortgagees are liable to deliver back possession to them. 8. In this second appeal before us, it is urged that the court below was wrong in thinking that this was a suit which fell U/S. 209 of the UPZA and LR Act. It was further contended that the civil court had no jurisdiction to entertain the suit. 9. In order to understand these objections it is necessary to refer to a few sections of the said UPZA and LR Act. S. 14 thereof enacts that :- ...A mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate. 10. But this provision is subject to the provisions of sub-S. (2) of S. 14 of the Act. S. 14 thereof enacts that :- ...A mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate. 10. But this provision is subject to the provisions of sub-S. (2) of S. 14 of the Act. Sub-S. (2) runs as follows :- (2) Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting- (a) if it was sir or khudkasht of the mortgagor on the date of the mortgage, the same shall for purposes of S. 18, be deemed to be the sir or khudkasht of the mortgagor or his legal representative; (b) if it was not sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee shall subject to his paying to the State Govt., within six months from the date of vesting an amount equal to five times the rent calculated at herediatary rates applicable on the date immediately preceding the date of vesting, be deemed, for purposes of S. 19, to have held such land on the date aforesaid as a hereditary tenant thereof at the said rate of rent: Provided that if the mortgagee fails to pay the amount aforesaid within the time allowed, he shall thereupon lose all rights in such land which shall be deemed to be vacant land and he shall be liable to ejectment on the suit of Gaon Sabha U/S. 209 as if he were a person in possession thereof otherwise than in accordance with provisions of this Act. 11. S. 330 of UP ZA and LR Act creates a bar to the jurisdiction of civil courts in certain matters coming under the said Act. It is enacted by S. 330 that :- 'Save as otherwise provided by or under this Act, no suit or other proceeding shall lie in any Civil Court in respect of any entry in, or omission from, a Compensation Assessment Roll or in respect of any order passed under Part I of this Act. 12. S. 14 of the UP ZA and LR Act falls under Part I of the Act. 12. S. 14 of the UP ZA and LR Act falls under Part I of the Act. Further the said Act, by S. 331 (1) enacts that :- (1) Except as provided by or under this Act no court other than a court mentioned in Col. 4 of Sch. II shall notwithstanding anything contained in the CPC, 1908, take cognizance of any suit, application, or proceedings mentioned in Col. 3 thereof. 13. Sub-S. (2) of this S. 331 provides that:- (2) Except as hereinafter provided no appeal shall lie from an order passed under any of the proceedings mentioned in Col. 3 of the schedule aforesaid. 14. Proceeding u/S. 14 of the Act, according to Sch. II, serial No. 3, have to be filed in the court of an Assistant Collector of the first class and from the decision of the said Assistant Collector, an appeal is provided by that Schedule to the Commr. 15. S. 209 of the said Act provides for the ejectment of persons occupying land without any title. The section runs as follows :- A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and- (a) where the land forms part of the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar, or asami, (b) where the land does not form part of the holding of a bhumidhar, sirdar or assami without the consent of the Gaon Sabha, shall be liable to ejectment on the suit, in cases referred to in Cl. (a) above, of the bhumidhar, sirdar or asami concerned and in cases referred to in Cl. (b) above, of the Gaon Sabha or the Collector, and shall also be liable to pay damages." When this suit was filed S. 209 was not one of the sections which was indicated in Sch. II. Subsequently, however, by virtue of the UP LR (Amendment) Act, 1956, suits u/S. 209 of the Act have also to be filed before an Assistant Collector of the first class and from the said Assistant Collector's order an appeal can be preferred to the Commissioner and a second appeal to the Board of Revenue. However, at the time that the suit was filed, the revenue court was not given a jurisdiction over suits filed U/S, 209 of the Act. However, at the time that the suit was filed, the revenue court was not given a jurisdiction over suits filed U/S, 209 of the Act. The question to be considered in this case whether, upon the allegations contained in the plaint, this is a suit which falls U/S. 209, or whether it is a suit in respect of an order passed or reliefs obtainable U/S. 14 of the Act. Now if this suit affects an order passed U/S. 14 of the Act and is directed to annulling it, or seeking reliefs obtainaole U/S. 14 of the Act then it would not be cognizable by Civil Court. An examination of the language of Sec. 209, which has been set out hereinbefore, shows that it provides for a suit against a person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force. In other words, it envisages a suit against a trespasser. According to the allegations in the plaint, the defendant its to the suit were put into possession of the suit plots under a mortgage and as mortgagees. Thereafter, according to the plaint, they are continuing in possession under an order of the Sub-Divisional Officer, dated 7-4-1953. The plaint challenges the effectiveness of that order for the purpose of conferring any right on the defendants to remain in possession. It is evident, therefore, that the defendants, according to the allegations in the plaint, had not taken possession of, nor were they retaining possession of, the suit plots otherwise than in acordance with the provisions of law. We are of the view that inasmuch as the initial possession of the defendants was in their capacity as mortgagees and inasmuch as their possession has continued after the vesting order under an order passed U/S. 14 of the Act by a comperent court, it cannot be said that the defendants, according to the allegations of the plaint, are trespassess. In our view, therefore, this suit did not fall U/S. 209 of the Act. We have already quoted Sec. 330 of the said Act. That section clearly bars the jurisdiction of the civil court to entertain a suit in respect of any order passed U/S. 14 of Part I of the Act, so this suit is clearly barred both under that section and Sec. 331 (1) of the Act. We have already quoted Sec. 330 of the said Act. That section clearly bars the jurisdiction of the civil court to entertain a suit in respect of any order passed U/S. 14 of Part I of the Act, so this suit is clearly barred both under that section and Sec. 331 (1) of the Act. We will now consider more fully the effect of S. 14 of the U. P Zamindari Abolition and Land Reforms Act. As soon as a vesting order is made, the mortgagee ceases to have any right to hold or possess as a mortgagee. If the land, which the mortgagee was holding, was the sir or khudkasht of the mortgagor on the date of the mortgage, the said land reverts to the mortgagor. On the other hand, if the land is not the sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee can acquire hereditary rights therein on payment of an amount equal to five times the rent calculated at the hereditary rates, within six months of the date of vesting. The mortgagee then becomes a sirdar U/S. 19 of the Act. He is then deemed to have held the land from the date of the vesting as a hereditary tenant. There is, therefore, in a case which falls U/S. 14 (2) (b) of the Act no break in the continuity of the right of the mortgagee to hold land, since the mortgagee's right to continue to hold as a hereditary tenant comes into force at once, provided, of course, the conditions laid down in S. 14 (2) (b) are fulfilled. It is only when the mortgagee fails to pay the amount mentioned in S. 14 (2) (b) of the Act that then by virtue of the proviso thereto such land is deemed to be vacant and the mortgagee become liable to ejectment on the suit of the Gaon Sabha U/S. 209 as if he were a person in possession thereof otherwise than in accordance with the provisions of the Act. Therefore, the mortgagee can only be ejected if he does not take advantage of the rights conferred on him by S. 14 (2) (b) of the Act. Therefore, the mortgagee can only be ejected if he does not take advantage of the rights conferred on him by S. 14 (2) (b) of the Act. So far as the mortgagor is concerned, if the land was his sir or khudkasht on the date of the mortgage, the land is deemed to be the sir or khudkasht of the mortgagor or his legal representatives. But that does not mean that there is any divestment of the mortgagee's right to remain in possession merely upon an assertion of a claim by the mortgagor. The mortgagor is not deemed to come into possession of the mortgaged plots on the date of vesting. All that S. 14 (2) (a) provides is that the land is deemed to be the sir or khudkasht of the mortgagor or his legal representatives. The mortgagor must still obtain possession of the land by an order of the court. That the mortgagee is deemed to hold the land all the time as sirdar is clear from the language of S. 19 of the Act. That section clearly indicates that where the mortgagee acquires rights U/S. 14 (2) (b), he must be deemed to be holding the land on the date immediately preceding the date of vesting. In our view, therefore, a mortgagor, who asserts that the land in possession of a mortgagee is his sir or khudkasht, must assert his said right, if that is denied, by means of a proceeding U/S. 14 of the said Act in the revenue court and get possession from the mortgagee under that section. A contention was raised by learned counsel that the order of the learned Sub-Divisional Officer dated 7-4-1953 was without jurisdiction and was a nullity and, therefore, it could be ignored and that, in law, the position of the mortgagees was that of a trespasser. This contention was sought to be based on S.332 of the Act. It was contended that inasmuch as a question of title had been raised before the subdivisional Officer, the issue of title had to be sent under that section to the competent Civil Court and since it was not sent the order U/S. 14 was a nullity. In our view, no question of title was really raised before the said Sub-Divisional Officer. In our view, no question of title was really raised before the said Sub-Divisional Officer. The only question that was raised before him was as to what was the character of the plots, namely, whether they bore the character of sir or khudkasht on the date of the creation of the mortgage. U/S. 332-A, it has been clearly laid down that:- Where in any suit or proceeding relating to land under this Act or under any other law, for the time being in force, a question is raised whether a person is or on any particular date was an adhivasi or asami of any land it shall not be deemed to raise a question of title. 16. The mortgagees were, as already stated, claiming to be "sirdars" U/S. 19 of the Act and it was their claim which was equally being adjudicated as the claim of the mortgagors. Therefore, in our view, on the analogy of the provisions of S.332-A of the Act, it could not be said that any question of title was being raised. In any case, a plea regarding title to a land, which is clearly untenable and is intended solely to oust the jurisdiction of the revenue court, is not deemed to raise a question regarding title to the land within the meaning of S.332 of the Act. It has been stated by the learned Sub-Divisional Magistrate that a scrutiny of the documents on the file is quite eloquent, and proves that the plots in question were not the sir or khudkasht of the mortgagors. Therefore, the court would have been justified, even assuming that a question of title could be said to have been raised, in not referring that question to the revenue (?) court, as it clearly did think that the plea was untenable. See S.332 of the Act. In any case, if there was any error committed by the said Sub-Divisional Magistrate, there was a right of appeal from that order to Commr. That right was not availed of. It cannot be contended that the Sub-Divisional Officer did not have jurisdiction U/S. 14 of the Act. The Sub-Divisional Officer had jurisdiction to decide whether a real question of title was raised or whether a mere objection was being raised in order to oust his jurisdiction. That right was not availed of. It cannot be contended that the Sub-Divisional Officer did not have jurisdiction U/S. 14 of the Act. The Sub-Divisional Officer had jurisdiction to decide whether a real question of title was raised or whether a mere objection was being raised in order to oust his jurisdiction. Inasmuch as he did not refer the socalled question of title to the Civil Court, assuming that he had to refer, it must be assumed that he decided that the plea that was raised was of a frivolous character and was intended only to oust his jurisdiction. 17. Another contention that was raised before us rests on the Rules framed under the UPZA and LR Act. R. 13 providesthat :- As soon as may be after the publication of the notification U/S. 4, the Collector shall cause to be prepared the following statements..... 18. Sub-R. (f) of this Rule shows that one of the statements to be prepared is in Z. A. form 14 showing the land in the personal cultivation of mortgagees. 19. R. 18 lays down as follows: (1) in the case of mortgagees referred to in the statement in Z. A. Form 14, the Assistant Collector in charge of the subdivision (now first class) shall be deemed to be the sir or khudkasht of the mortgagor and determine the rent of the rest of the land. (2) The Assistant-Collector in charge of the subdivision shall issue a notice to the mortgagee to deposit the amount referred to in Cl. (b) of sub-S. (2) of S. 14 within 6 months from the date of vesting. If the amount is not deposited, he shall declare his land to be vacant land. 20. R. 19 then provides as follows: No order passed u/R. 16 shall debar any person from establishing his rights in a court of competent jurisdiction. 21. It was contended that the order dated 7-4-1953 was an order u/R. 18 of the UP ZA and LR Rules and that that order was not final and could be challenged in a Civil Court by virtue of R. 19. In the first place, R. 19 does not apply to an order passed u/R. 18. In the second place, K. 19 speaks of a court of competent jurisdiction and does not speak of a Civil Court. In the first place, R. 19 does not apply to an order passed u/R. 18. In the second place, K. 19 speaks of a court of competent jurisdiction and does not speak of a Civil Court. Therefore, that Rue is not an indication of the fact that even an order u/R. 16 can be challenged in a Civil Court. We do not think that R. 19 confers any right on the present plaintiffs to take this action into a Civil Court. 22. Before the learned single Judge, it was urged that R. 19 was ultra vires the Act because it conflicted with S. 331 of the Act. In our view, the contention was merely raised because the word "competent" was read as "civil" The competent court" u/R. 19 could still be the "revenue court" and R. 19 no where says that the 'competent court' would be the 'civil court'. 23. We have already indicated that the competent court for the determination of matters falling within S. 14 of the Act is the court of the Assistant Collector, first class, namely, the revenue court. In our view, the Civil Court had no jurisdiction to entertain the suit which was clearly a suit to have a previous order passed u/S. 14 of the UP ZA and LR Act nullified and to obtain a decision in regard to matters which fell for decision u/S. 14 of the Act by a revenue court alone. 24. Accordingly, we allow this appeal, set aside the judgment and decree of the court below and dismiss the plaintiff's suit with costs throughout.