Lalta v. Ambika — 1968 DIGILAW 303 (ALL)

JUDGMENT Gangeshawar Prasad, J. - These connected Second Appeals came up before us upon a reference made by a learned single Judge of this Court. They arise out of a suit instituted in the Civil Court by Lalta and Gomti plaintiffs against Ambika defendant for possession over three plots of agricultural land and for recovery of Rs. 100/- as damages, The suit was described by the plaintiffs as one under Section 209 of the U.I Zamindari Abolition and Land Reform Act (hereinafter called the Act) . Th Additional Munsif of Basti who tried the suit granted to the plaintiffs a decree of possession only in respect of plot No. 9 and for a sum of Rs. 33/- as damages. Wit respect to the other two plots and the claim for damages the suit of the plaintiffs was dismissed. Against the decree of the Additional Munsif both the partition preferred appeals before the Civil Judg of Basti but their appeals were dismisses Both of them then filed appeals in the court, the appeal of the plaintiffs being Second Appeal No. 1920 of 1959 and that o the defendant being Second Appeal No. 3062 of 1959. 2. The relevant facts are brief and are ne longer in dispute. Basdeo, father of the plaintiffs, had unusufructuarily mortgage( plots Nos. 52, 291, 91 and 290 with Sri Mohan, father of the defendant. In 1941 the plaintiffs brought a suit for redemption of the mortgage against the defendant The suit was compromised, and under the terms of the compromise plots Nos. 52 an 291 went immediately into the possession of the plaintiffs free from mortgage and the remaining three plots were left in possession of the defendant to be redeemed the plaintiffs after a period of twenty year from the date of the compromise. Th( position on the date immediately preceding the date of vesting under the Act, therefore was that that the plaintiffs were mortgagor of plots Nos. Th( position on the date immediately preceding the date of vesting under the Act, therefore was that that the plaintiffs were mortgagor of plots Nos. 90, 91 and 291, which are the plots in dispute at present, and the defendant was their mortgagee in possession There is also no dispute about the act that the plots were in the personal cultivation of the defendant on that date In the suit which has given rise to these appeals the plaintiffs claimed that all the three plot, in dispute were either Sir or Khudkasht of the mortgagor on the date of the mortgage and, consequently, under Section 14 of the Act, the defendant ceased to have any right to hold or to be in possession of them with affect from the date of vesting. The defendant denied the Sir and Khudkasht character of the plots, but both the courts below have found that the plots were either Sir Khudkasht of the mortgagor on the date the mortgage and this finding was not challenged before us. In spite of this finding, however, the courts below dismissed re suit of the plaintiffs in respect of plots Nos. 90 and 290 on the ground that the Defendant had, under Section 14 (2) (b) of the Act, paid to the State Government a sum equal to five times the rent of plots calculate at hereditary rates within six months f the date of vesting and the Civil Court ad, therefore, no jurisdiction to pass a dew for possession regarding the aforesaid two plots. In taking this view they purported to follow a Division Bench decision of this court, Bhikhi Singh v. Lakhpat, 1958 ALJ 302. The suit was filed on April 5, 1956 and on that date the forum for the institution of a suit under Section 209 of the Act was to Civil Court. The courts below were the taken in regard to this matter, but they eld that so far as plots Nos. 90 and 290 ere concerned the possession of the defendant was not that of a trespasser and he was of liable to ejectment by means of a suit led in the Civil Court under the afore-aid provision. We may at once say that his view of the courts below is based upon (Sic)misapprehension of the legal position. 90 and 290 ere concerned the possession of the defendant was not that of a trespasser and he was of liable to ejectment by means of a suit led in the Civil Court under the afore-aid provision. We may at once say that his view of the courts below is based upon (Sic)misapprehension of the legal position. obviously, a plaintiff in a civil suit is not enquired to indicate the provision of law under which the suit has been instituted )y him, because a Civil Court has jurisdiction to try all suits of a civil nature except suits of which cognisance is either expressly impliedly barred. The fact that the suit giving rise to these appeals was described by the plaintiffs as one under Section 209 of the Act was not, therefore, decisive )f its real nature and was, indeed, a matter of no consequence. What had to been was whether the Civil Court was competent to grant the reliefs prayed for. Vow, it cannot be doubted that even when suit under Section 209 of the U.P., Zaminlari Abolition and Land Reforms Act was entertain able by the Civil Court, its power o grant the relief of possession and damages was not confined to the situation pro-Tided for under that provision but extend-.c.1 to all such situations in which a plaintiff was entitled to that relief. Even if, therefore, it is assumed that the nature of the defendant's possession over plots nos. 90 and 290 was not such as to attract the application of Section 209 of the Act, the suit of the plaintiffs could not be dismissed in regard to those plots on the ground that the Civil Court had no jurisdiction, unless, of course, there was some statutory provision excluding its jurisdiction. 3. We may now proceed to examine whether even with regard to plots Nos. 90 and 290 the suit fell within the purview of section 209 of the Act. The section provides for a suit for ejectment and damages against persons "taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force", and the question to be determined, therefore, is whether the defendant took or retained possession of the aforesaid plots otherwise than in accordance with the provisions of the law for the time being in force. The relevant portion of Section 14 of the Act which governs the rights of the parties in relation to the mortgaged plots is as follows: "Sec. 14- (1) Subject to the provisions of sub-Sec. (2) 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 possession as such any land in such estate. (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 or the mortgage, the same shall, for purposes of Section 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 Government, within six months from the date of vesting an amount equal to five times the rent calculated at hererditary rates applicable on the date immediately preceeding the date of vesting, be deemed, for purposes of Section 19 to have held such land on the date aforesaid as a hereditary tenant thereof at the said rate of rent. 4. As noted above, it is not in dispute that all the plots were in personal cultivation of the defendant on the date immediately preceding the date of vesting. Further, the finding of the courts below clearly is that the plots were either Sir or Khudkasht of the mortgagor on the date of the mortgage and the correctness of this finding was not questioned before us. The obvious result was that the plaintiffs became Bhumidhars of all the plots in suit under sub-Sec. (2) (a) of Section 14 read with Section 18 of the Act and sub-Sec. (2) (b) of Section 14 never came into operation. It is true that in respect of plots Nos. 90 and 290, the defendant paid the amount mentioned in sub-Sec. (2) (b) within the time provided thereunder, but it was only if the plots had not been sir or Khudkasht of the mortgagor on the date of the mortgage that the benefit of the said provision could have been available to the defendant. 90 and 290, the defendant paid the amount mentioned in sub-Sec. (2) (b) within the time provided thereunder, but it was only if the plots had not been sir or Khudkasht of the mortgagor on the date of the mortgage that the benefit of the said provision could have been available to the defendant. Since these two plots also were either Sir or Khudkasht of the mortgagor on the date of the mortgage, the defendant acquired no right whatsoever by the payment made by him. The plaintiffs, as we have shown above, had already become Bhumidhars of all the plots in dispute, and under Section 18 of the Act they had become entitled to take possession thereof. The right of the defendant to continue in possession had, with effect from the date of vesting altogether ceased under sub-Sec. (1); of Section 14, and if he continued in possession thereafter his possession was dearly otherwise than in accordance with the provisions of the law for the time being in force. 5. In Bikhi Singh v. Lakhpal, 1958 ALJ 302, decided by Gurtu and Roy, J J., there are certainly some observations of Gurtu, J., who decided the judgment, which may be regarded as supporting the view that the remedy of a mortgagor claiming to have become a Bhumidhar of land under sub-Sec. (1) (a) of Section 14 against the mortgagee who was made payment under sub-Sec. (1) (b) of the section is not by way of a suit in the civil court but by way of a proceeding in the revenue court. The observations are as follows: - "That the mortgagee is deemed to hold the land all the time as Sirdar is clew from the language of Section 19 of the Act That section clearly indicates that when the mortgagee acquires rights under Sec 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 hi-sir or Khudkasht, must assert his said right, if that is denied, by means of a proceeding under Section 14 of the said Act in the revenue court and get possession from the mortgagee under that section." 6. In our view therefore, a mortgagor, who asserts that, the land in possession of a mortgagee is hi-sir or Khudkasht, must assert his said right, if that is denied, by means of a proceeding under Section 14 of the said Act in the revenue court and get possession from the mortgagee under that section." 6. In a later case, Kodai v. Ayodhya Singh, 1960 ALJ 308, decided by a Division Bench 01 which Gurtu, J. was also a member, it was however, held that the above quoted observations should be read in the background of the facts of that case and should not be extended to other situations. It was also observed that the remarks appeared to be obiter and they were not necessary for deciding the case in which they were made. 7. It would appear that in Bhikhi Singh's case the facts were that the mortgagees had made an application under Section 14 (2) (b) of the Act which was opposed by the mortgagors on the ground that they had become Sirdars of the one plot and Bhumidhars of the other mortgaged plots. The Assistant Collector 1st Class who dealt with the matter made an order in favour of the mortgagees and dismissed the objections in the mortgagors. There upon the mortgagors brought a suit in the Civil Court under Section 209 of the Act. In their plaint the mortgagors alleged that the mortgagees were continuing in possession under the order of the Assistant Collector and that the cause of action arose on the date of the said order. They also challenged the effectiveness of the order for the purpose of conferring any right on the mortgagees to remain in possession. In the background of those facts Gurtu, J. stated that "the question to be considered in this case is whether, upon the allegations contained in the plaint this is a suit which falls under Section 209, or whether it is a suit in respect of an order passed for reliefs obtainable under Section 14 of the Act." and answered the question by saying 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 under an order passed under Section 14 of the Act by a competent. court, it cannot be said that the defendants, according to the allegations of the plaint are trespassers" and that "this suit did not fall under Section 209 of the Act". The answer was founded upon the view that possession which has its basis or is supported by an order passed in a proceeding purporting to have been taken under a statutory provision is not possession other' wise than in accordance with the provisions of the law for the time being in force even though the possession is without title. This view cannot, however be regarded as correct in the light of the decision of the Supreme Court in Bhinka v. Champ Singh, 1959 ALJ 557. That was a case filed in the revenue court under Section 180 of the U.P. Tenancy Act which, like Section 209 of the U.P. Zamindari Abolition and Land Reforms Act, provided for a suit against a person taking or retaining possession otherwise than in accordance with the provisions of the law for the time being in force. In a proceeding under Section 145, Cr.P.C. between the parties to that case it had been found that the defendants were in possession of the land in dispute and it had been declared that they were entitled to be in possession thereof until evicted therefrom in due course of law. One of the questions raised before the Sign-erne Court on behalf of the defendants was that the case was not covered by Section 180 of the U.P. Tenancy Act and the revenue court had, therefore, no jurist diction to try the suit. The Supreme Court repelled the contention and observed: "Can it be said that the possession by virtue of an order of a Magistrate under the provisions of Section 145 of the Code of Criminal Procedure is one in accordance with the provisions of the law for the time being in force ? It appears to us that the words 'possession in accordance with the law for the time being in force' in the context can only mean possession with title. The suit contemplated by the section is one by a landlord against a person who has no right to possession. The preceding sections, as we have already indicated, provided for evicting different categories of tenants on specified grounds. 8. The suit contemplated by the section is one by a landlord against a person who has no right to possession. The preceding sections, as we have already indicated, provided for evicting different categories of tenants on specified grounds. 8. Sec. 180 provides for the eviction of persons who but for the eviction would become a hereditary tenant by efflux of the prescribed time. If there is any ambiguity - we find none - it is dispelled by the heading given to the section and also the description of nature of the suit given in the schedule. The heading reads thus: "Ejectment of person occupying land without Title". "Maxwell on Interpretation of Statutes," 10th Edn., gives the scope of the user of such a heading in the interpretation of a section thus, at p. 50: 'The headings prefixed to sections or sets of section in some modern statutes arc regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words.' "If there is any doubt in the interpretation of the words in the section, the head certainly helps us to resolve that doubt. Unless the person sought to be evicted has title or right to possession, it cannot be said that his possession is in accordance with the provisions of the law for the time being in force." 9. It would be seen that the heading prefixed to Section 209 of the U.P. Zamindari Abolition and Land Reforms Act is also exactly the same as the heading prefixed to Section 180 of the U.P. Tenancy Act and the observations of the Supreme Court apply to the fullest extent and with all their force to Section 209 of the U.P. Zamindari Abolition and Land Reforms Act as well. It makes no difference at all that the order supporting the possession of the defendants in that case was one under Section 145, Cr.P.C. and not one Under Section 14 (2) (b) of the Act. Indeed, it appears to us that a person who has in his favour an order under Section 145, Cr.P.C. stands on a better footing than a person who merely makes a payment under Section 14 (2) (b) of the Act without having a right to do so. Indeed, it appears to us that a person who has in his favour an order under Section 145, Cr.P.C. stands on a better footing than a person who merely makes a payment under Section 14 (2) (b) of the Act without having a right to do so. This decision of the Supreme Court has, therefore, destroyed the basis of the view taken in Bhikhi Singh's case' and has taken away its authority. It cannot now be disputed that if a person is in possession of a land without title his possession is otherwise than in accordance with the provisions of the law for the time being in force even though the possession has the sanction of some order which does not decide title. 10. In Smt. Prem Raji v. Jhunsi Nath, 1964 ALJ 1109, decided by one of us (Gangeshwar Prasad, J.) the effect of payment under sub-sec. (2) (b) of Section 14 of the Act made by a mortgagee who had no right to do so and the question whether his possession, after such payment, was otherwise than in accordance with the provisions of the law for the time being in force came up for consideration. We may extract from that case the passages stating the legal position: "Sub-Sec. (1) of Section 14 of the U.P. Zamindari Abolition and Land Reforms Act had the effect of completely extinguishing from the date of vesting the right of a mortgagee in possession of an estate or share there in to hold or possess as such any land therein. Retention of possession by such a mortgagee become altogether devoid of legal sanction from the aforesaid date and was manifestly' otherwise than in accordance with the provisions of the law for the time being in force.' This result was, however, subject to the provisions of sub-Sec. (2) under which it was open to the mortgagee to acquire an interest and legalise his possession retrospectively, if the conditions mentioned therein existed and the requirements provided for the acquisition of the interest and legalisation of possession were fulfilled. The first condition for the exercise of the right given to the mortgagee under sub-Sec. (2) was that the land was in his personal cultivation on the date immediately the date of vesting and the second was that the land was not sir or Khudkasht of the mortgagor on the date of the mortgage. The first condition for the exercise of the right given to the mortgagee under sub-Sec. (2) was that the land was in his personal cultivation on the date immediately the date of vesting and the second was that the land was not sir or Khudkasht of the mortgagor on the date of the mortgage. If these conditions were lacking the right to acquire an interest and thus to legalise possession did not arise, and a mere deposit of the amount mentioned in the sub-section or its acceptance by the State Government could neither result in the acquisition of the interest nor in making the possession lawful. In fact it is only when the right mentioned in clause (a) of sub-sec. (2) does not arise in the mortgagor or his legal representative that the right provided for by clause (b) of the sub-section can be acquired by deposit otherwise, the deposit and its acceptance by the State Government can have no legal effect and the possession of the mortgages would remain otherwise than in accordance with the provisions of the law for the time being in force. Section 209 of the U.P. Zamindari Abolition and Land Reforms Act would in that case be clearly applicable to the situation and a suit for ejectment under that section would certainly lie." "It is sometimes thought that if a person can support his possession by some order by a court or authority, however summary or wanting in finality the order may be, his possession cannot be said to be otherwise than in accordance with the provision of the law for the time being in force. This appears me to be a mistaken and a too narrow view of what possession may be regarded as 'not being in accordance with law.' For this view a too frequent use of the expression 'trespasser' for the person who can be sued under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act or who could be sued under Section 44 of the Agra Tenancy Act or Section 180 of the U.P. Tenancy Act is perhaps responsible. The expression 'trespasser' has not been used in the statute and it has only been employed in common speech and writing in relation to suits under the aforesaid provisions for the sake of convenience. The expression 'trespasser' has not been used in the statute and it has only been employed in common speech and writing in relation to suits under the aforesaid provisions for the sake of convenience. There is, however, no jurisdiction for limiting the scope of the statutory provision to what is popularly regarded as 'trespass'. A person may have a semblance of right there may also in some cases be an order supporting or confirming his possession or even putting him in possession subject to the decision of a competent court, but his possession would still be not is accordance with law unless it is in conformity with ultimate legal rights. As against the person entitled to possession the possession of every body who in law is bound to vacate in his favour is really possession not in accordance with the law for the time being in force, whatever temporary justification the possession might have. We have corrected the errors in the report." 11. We think that the view expressed in the above passages conforms to what has been held by the Supreme Court in Bhinka v. Charon Singh and represents the true legal position. 12. We may also note that the facts of the instant case are clearly distinguishable from the facts of Bhikhi Singh's1 case. There is nothing to show that the plaintiffs had either contested or had been given an Opportunity to contest the right of the defendant to make the payment mentioned under sub-sec. (2) (b) of Section 14 of the Act. Naturally, there was no occasion for an adjudication of the rights of the parties. The plaintiffs did not challenge any order purporting to have been made under the aforesaid provision nor was it necessary for them to do so. Their suit was a simple suit for possession and not at all in respect of any order passed under Part I of the Act. The bar of Section 330 of the Act did not, therefore, apply and as, on the date of the institution of the suit, a suit under Section 209 of the Act could be filed in the Civil Court and not in the revenue court no question of the bar of Section 331 of the Act arose. 13. The result, therefore, is that the present suit was properly instituted in the Civil Court. 13. The result, therefore, is that the present suit was properly instituted in the Civil Court. On the facts of the case Section 209 of the Act was clearly applicable and the Civil Court could pass a decree in accordance with that provision in respect of all the plots in dispute. But, even if Section 209 was not applicable the Civil Court had the competence to grant the reliefs prayed for by the plaintiffs. The plaintiffs had made out their claim in respect of all the disputed plots, and their suit should therefore, have been decreed in entirety. 14. For the reasons discussed above, we allow Second Appeal No. 1920 of 1959 and dismiss Second Appeal No. 3062 of 1959. The suit of the plaintiffs shall stand decreed for possession over all the plots, viz. Nos. 90, 91 and 290 and also for Rs. 100/- as damages. The plaintiffs will get their costs in all the courts from the defendant. 15. S.A. No. 1920 of 1959 allowed. S.A. No. 3062 of 1959 dismissed.