Bhore Lal v. Mangaliya — 1972 DIGILAW 206 (RAJ)

Shri D.C. Joseph.—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" ? 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. The mortgage was admitted by the defendants. They contended that upto St. 2013 defendant number 1 alone cultivated the land and thereafter he and his brother defendant number 2 each cultivated half. Since the name of Chhota appeared in the khasra girdawari, he too was made a defendant to the suit. The mortgage was admitted by the defendants. They contended that upto St. 2013 defendant number 1 alone cultivated the land and thereafter he and his brother defendant number 2 each cultivated half. With the abolition of the estate, the ownership of the land vested in the State Government and all the rights of the plaintiff therein came to an end while the defendants became khatedar tenants by virtue of their possession. The trial court framed three issues, the second of which was whether the plaintiff was entitled to maintain the suit This was taken up as a preliminary issue and by a judgment dated 15-5-67 the suit was dismissed. In appeal, the Revenue Appellate Authority, Jaipur remanded the case to the trial court for dis-posal after framing and deciding an issue as to whether the plaintiff hade made a usufructuary mortgage of his light to cultivate the land and whether he was entitled to redeem the mortgage and get back possession on account of its being his khudkasht. When the case came up for hearing before the Division Bench in second appeal, the attention of the learned Members was drawn by the respondent to two rulings of the Board reported in 1967 R.R.D 110 Gajanand Vs. Rameshwar Lal and 1969 R.R.D. 59 Mana Vs. Kalyan, in which it has been held that proprietary and khudkasht rights are separable, and it was argued that a biswedar is entitled to bring a suit for redemption of a mortgage and possession in respect of his khudkasht land. On the other hand, the defendant-appellants cited 1970 R.R.D. 492 Bhav Singh Vs. Khawasi in which the Rajasthan High Court has held that after the abolition of an estate a biswedar is not entitled to maintain a suit for redemption of a usufructuary mortgage made by him before the commencement of the Abolition Act. The Division Bench felt that it was difficult to reconcile these rulings and since an important question of law was involved it directed that the papers be laid before the Honble Chairman for constituting a Larger Bench to make an authoritative pronouncement on this issue. Hence the case has come up before us. Shri Jatan Chand, appearing on behalf of the defendant appellants, says that sec. Hence the case has come up before us. Shri Jatan Chand, appearing on behalf of the defendant appellants, says that sec. 5 of the Rajasthan Zamindari and Biswedari Abolition Act deals with the consequences of the abolition of the estates According to sub-sec. (2) of this section, as from the date of abolition an estate shall stand transferred to and shall vest in the State Government free from all encumbrances. Sub-sec. 4 says that notwithstanding anything contained in sub-sec. (2) the zamindar or biswedar shall, subject to the provisions of sec. 29, continue to retain the possession of his khudkasht recorded as such in the annual registers before the date of vesting Sec. 29 lays down that as from the date of vesting of an estate the zamindar or biswedar thereof "shall be a malik of any khudkasht land in his occupation on such date and shall, as such malik, be entitled to all the rights conferred and be subject to all the liabilities imposed on a khatedar tenant by or under the Rajasthan Tenancy Act 1955". 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. On behalf of the respondent it is stated by Shri Jyoti Swaroop Mathur that in view of sec. 5 (2) (j) of the Zamindari and Biswedari Abolition Act. On behalf of the respondent it is stated by Shri Jyoti Swaroop Mathur that in view of sec. 5 (2) (j) of the Abolition Act every mortgage with possession existing on an estate on the date immediately preceding the date of vesting shall be deemed to have been substituted by a simple mortgage. A simple mortgage is one without possession. The mortgagee thus cannot legally retain possession and becomes a trespasser and if any payment is due him for redemption of the mortgage it would be a charge on the compensation for the estate. As regards the effect of sec. 29 of the Zamindari Act, Shri Jyoti Swaroop say9 that this does not envisage actual physical possession. He has cited several rulings which we consider below. The first ruling is Haji Sk. Subhan Vs. Madhorao reported in A I.R. 1962 Supreme Court 1230. This is a case under the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. It is stated therein that the only condition requisite for a proprietor to have certain land treated as his home farm is that the annual papers of 1948-49 record that land as his sir and khudkasht. The basis is the record and not the fact of actual cultivation. Another ruling based on the same Act is Himmatrao Vs. Jaikisandas and others reported in A I.R. 1966 Supreme Court 1974. This says that the Act is intended to acquire the proprietary interest of owners of the estates and not to affect every one of their rights. Thus a co-sharer of a village, though not in cultivating possession of any land therein, can claim compensation land home farm land proportionate to his share. Two rulings have been cited on the U. P. Zamindari Abolition and Land Reforms Act 1951. The first is Rana Sheo Amber Singh vs. The Allahabad Bank Ltd reported in A. I. R. 1961 Supreme Court 1790, in which it has been held that where the proprietary rights in certain villages were mortgaged before the commencement of the Act the legal effect of the notification under sec. 4 would be that khudkast lands would vest in the State and what is conferred on the intermediary by sec. 4 would be that khudkast lands would vest in the State and what is conferred on the intermediary by sec. 18 of the Act (lands in his possession or held or deemed to be held as sir, khudkasht or grove) would be a new right altogether. The other ruling is Upper Ganges Sugar Mills Ltd. vs. Khalil-ul-Rahman reported in A. I. R. 1961 Supreme Court 143. This ruling is of some relevance to the present case because it defines "occupant. It says that the word "occupant" used in sec. 20(b) of the Act is not a term of art and has not been defined anywhere in the Act or in the U. P. Tenancy or Land Revenue Acts. It must, therefore, be given its ordinary dictionary meaning, which is "a person in occupation". The only limitation that has been placed by judicial decisions on the meaning of the word is that the person should be in occupation in his own right and not on behalf of someone else. Appearing as amicus curiae, Shri Suraj Narain Pareek supports the stand taken by Shri Jyoti Swaroop that the word "occupation" appearing in sec, 29 of the Zamindari Act does not envisage only personal cultivation and that a biswedar who has mortgaged his khudkasht with possession prior to the commencement of the Act cannot be said to have forfeited this khudkasht to the State. Citing 1969 (3) Supreme Court Cases 542 Meharban Singh vs. Naresh Singh which is a case based on the Madhya Bharat Zamindari Abolition Act 1951, Shri Pareek says that a proprietor, notwithstanding other consequences of the vesting in the State, is entitled to continue to remain in possession of his khudkasht land which is so recorded in the annual village papers before the date of vesting. Another case relied on is Bhudan Singh vs. Nabi Bux reported in 1969 (2) Supreme Court Cases 481 which also is under the U. P. Zamindari Abolition and Land Reforms Act. This case revolves around the interpretation of sec. 9 of that Act, as to whether it confers any benefit on a trespasser. It has been held that it is proper to assume that the law makers, who are the representatives of the people, enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. 9 of that Act, as to whether it confers any benefit on a trespasser. It has been held that it is proper to assume that the law makers, who are the representatives of the people, enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words, the entire legislative process is influenced by considerations of justice and reason. Consequently, where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances it would seem that the apparent or suggested meaning of the statute was not the one intended by the law makers. Keeping this principle in view, says Shri Pareek, the laying of undue stress on the word "occupation" in sec. 29 of the Zamindari and Biswedari Abolition Act would operate harshly because it would create an invidious distinction between those who had made usufructuary mortgages of their khudkasht, which would have been redeemed in the normal course, and those who had not. He urges that too rigid a construction should not be put on the wording of the section. In the reference itself, the learned Members have said it is difficult to reconcile the rule laid down by the Rajasthan High Court in Bhav Singh vs. Khawasi with certain decisions of the Board. The High Court ruling says that sec. 5(2)(b) of the Zamindari and Biswedari Act provides that the right, title and interest of the zamin-dar or biswedar and of every person claiming through him in such estate, including land, shall cease and be vested in the Government free from all encumbrances. Every mortgage debt or charge on any such right, title or interest shall be a charge on the amount of compensation payable to the zamindar or biswedar under the Act. Attention has also been drawn to clause (j) of sec.5(2) which provides that every mortgage with possession existing on such estate or part thereof on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such estate or part be deemed, without prejudice to the rights of the State Government under this section to have been substituted by a simple mortgage. It was held by the High Court that the difficulty in the way of the plaintiffs was that they had no locus standi to bring a suit for possession as their right, title and interest in the land as biswedars stood transferred and vested in the State Government. On the other hand, in 1967 R. R. D. 1 10 Gajanand vs. Rameshwar Lal, a Division Bench of the Board has said that whenever jagirs are resumed the khudkasht holders become khatedars The khatedar is not a proprietor in respect of his khata and hence when a jagir is resumed and the right, title and interest of the jagirdar cease, this does not affect his khudkasht, which he continues to hold on the same terms and conditions as a khatedar tenant. In that case khadem (khatedari) rights were mortgaged by a muafidar and it was held that the muafidar had separate rights as a khadem which were distinguishable from the general muafi rights which had been resumed. In 1969 R.R.D. 59 Mana vs. Kalyan, a Single Bench has held that proprietary rights are distinguishable from khudkasht rights and, therefore, even though their proprietary rights had been resumed by the State, the khudkasht rights of the biswedars entitled them to recover possession of khudkasht land mortgaged before the coming into force of the Zamindari and Biswedari Abolition Act. A similar view has been taken by another Division Bench in 1970 R.R.D. 121 Bachan Singh vs. Ram Singh. This says that under sec. 5 of the Zamindari Abolition Act the right, title and interest of the zamindar or biswedar and of any person claiming through him vest in the Government with effect from the date of abolition but this does not and cannot apply to cultivatory rights. If the biswedar has any khudkasht, he becomes a malik of that land according to sec. 29 and the same section lays down that a malik is the equivalent of a khatedar tenant. Where the khudkasht of a biswedar has been mortgaged prior to the commencement of the Act, he is entitled to sue for redemption of the mortgage and for possession. We do not feel that it is hard to reconcile the view taken by the Rajasthan High Court with that taken by the Board in the three rulings cited. The difference is more apparent than real. We do not feel that it is hard to reconcile the view taken by the Rajasthan High Court with that taken by the Board in the three rulings cited. The difference is more apparent than real. In fact the High Court has not touched upon the effect of sub-sec. 4 of sec. 5. It was not argued before it that the suit land was khudkasht and that the biswedar was entitled to enjoy the same rights as a khatedar tenant. The very presence of sec. 5 (4) in the Act justifies the view taken by the Board in the cases cited that there is a difference between the proprietary rights of an estate holder and his personal cultivatory rights, the former being transferred to the State and the latter being protected by law on the abolition of an estate. Even Shri Jatan Chand has not laid any stress on this point before us. The sum and substance of his argument is that, although a zamindar or biswedar is entitled to retain possession of his khudkasht in accordance with sec. 5(4) of the Act, this section has been made subject to the provisions of sec. 29 and the latter protects only khudkasht land in the occupation of the estate-holder on the date of vesting. In the present case, he says, the former biswedar cannot claim the suit land as his khudkasht because it is an admitted position that the defendant-appellant Bhore Lal was a mortgagee in possession on the dated of vesting. For the respondents, several rulings based on the U.P. and M.P. Abolition Acts have been cited in a rather laboured effort to make the point that it is not necessary for an estate-holder to be in actual possession of his home farm land or khudkasht in order to preserve his cultivatory rights therein. These rulings are not completely relevant because they are based on different Acts the wordings of which are not quite the same as in the Rajasthan Act. However, they do indicate that in these two States also there are special provisions for preserving cultivatory rights in khudkasht land. These rulings are not completely relevant because they are based on different Acts the wordings of which are not quite the same as in the Rajasthan Act. However, they do indicate that in these two States also there are special provisions for preserving cultivatory rights in khudkasht land. The Upper Ganges Sugar Mills vs. Khalil-ul-Rahman case is of some interest because it discusses the meaning of the word occupant but though cited on appellants that the behalf of the respondent it seems to support the case of the word should be given its ordinary dictionary meaning of the person who is in physical possession of the land. On careful consideration we cannot help feeling that the counsel assisting us have given rather undue importance to this word "occupant", which appears in sec. 29(1) of the Zamindari Act. It is an admitted position that sub-sec. (4) of sec. 5 protects the possession of recorded khudkasht on the abolition of an estate. The sub section says that, subject to the provisions of S. 29, the zamindar or biswedar shall "continue to retain possession of his khudkasht recorded as such in the annual registers before the date of vesting". Sec. 29 reads as follows: — "1. As from the date of vesting of an estate, the zamindar or biswedar thereof shall be a malik of any khudkasht land in his occupation on such date and shall, as such malik, be entitled to all the rights conferred and be subject to all the liabilities imposed on a khatedar tenant by or under the Rajasthan Tenancy Act 1955 (Rajasthan Act 3 of 1955) and 2. If there are more persons than one having interest in land held as khudkasht immediately before the date of vesting, all such persons shall be deemed to be co-maliks thereof". It is the claim of the appellants that sec. 29 modifies the right given in sec, 5(4) to retain possession of khudkasht. This modification is to the effect that only that recorded khudkasht can be retained which is in the occupation of the zamindar or biswedar on the date of vesting. We find ourselves unable to subscribe to this view. In this connection, it may be useful to recall the history of this section. This modification is to the effect that only that recorded khudkasht can be retained which is in the occupation of the zamindar or biswedar on the date of vesting. We find ourselves unable to subscribe to this view. In this connection, it may be useful to recall the history of this section. It appears that, after the principal Act was promulgated, the zamindars and bitswedars made representations to the Government for changing their designations and also for changing their status. An Ordinance was then promulgated on 28-6-60, the language of which was interpreted to have conceded the desired change. Later, a Bill was introduced in the Legislature on the lines of the Ordinance. In the objects and reasons it was stated : On the representation of certain zamindars and biswedars it has been considered advisable to designate them as maliks in respect of their khudkasht land in their occupation on the date of vesting of their estates in the State Government and to set out their rights and liabilities in a schedule to be appended to the Rajasthan Zamindari and Biswedari Abolition Act 1959 instead of merely saying that they will have all the rights and be subject to all the liabilities of khatedar tenants in respect of their khudkasht land". This shows that one object of the Bill was to change the designation of the land-holders and the other was to define their rights and liabilities in a manner otherwise than in terms of the Rajasthan Tenancy Act and thus effect a change in their status. This proposal, however, did not secure the approval of the legislature, which thought it proper merely to indicate a change in the designation of the land-holders and to confer on them the same rights and liabilities as khatedar tenants under the Tenancy Act. This recital makes it clear that sec. 29 as it stands amended has the limited purpose of bestowing a designation on the land-holders in respect of khudkasht allowed to be retained under sec. 5 (4) and of stipulating that their status would be that of khatedar tenants under the Tenancy Act. There is nothing to substantiate the claim of Shri Jatan Chand that sec, 29 modifies the right given in sec. 5(4) to hold khudkasht. 5 (4) and of stipulating that their status would be that of khatedar tenants under the Tenancy Act. There is nothing to substantiate the claim of Shri Jatan Chand that sec, 29 modifies the right given in sec. 5(4) to hold khudkasht. Had the legislature intended to modify this right to make it applicable only to persons in physical possession, this provision would have been made in sec. 5(4) itself. Moreover we have noted that while sec. 29(1) speaks of the "occupation" of khudkasht lands by a zamindar or biswedar, sub-sec. (2) speaks of "interest" in the land held as khudkasht. If we were to accept the argument advanced on behalf of the appellants, it would mean that a single zamindar or biswedar whose estate had been abolished would be able to retain as malik only that khudkasht land which was in his occupation, whereas if there were more persons than one having a mere interest in the land and not necessarily being in physical possession, all of them would be co-maliks. Such an interpretation would reduce the law to a force. In this connection, the Bhudan Singh vs. Nabi Bux case cited by Shri Pareek is material. It has to be presumed that it is the intention of the law makers to frame equitable laws. We, therefore, cannot agree that the reference to "occupation" in sec. 29(l) of the Act acts as a qualifying clause to the right to hold khudkasht conferred by sec. 5(4). The very fact that this word is not repeated in sec. 292) shows that it is not intended to be of special significance and to be interpreted rigidly. According to sec. 5 (23) of the Tenancy Act, the term khudkasht includes land recorded as khudkasht, sir, hawala, niji-jot or gharkhed in the settlement records at the commencement of the Tenancy Act in accordance with the law in force at the time when such record was made. Sec. 5(4) of the Zamindari Abolition Act allows the zamindar or biswedar to retain possession of his khudkasht recorded as such in the annual registers before the date of vesting. In sec. 2(i) of the Land Reforms and Resumption of Jagirs Act 1952, land recorded as khudkasht sir or hawala in the settlement record is included in the term. Sec. 5(4) of the Zamindari Abolition Act allows the zamindar or biswedar to retain possession of his khudkasht recorded as such in the annual registers before the date of vesting. In sec. 2(i) of the Land Reforms and Resumption of Jagirs Act 1952, land recorded as khudkasht sir or hawala in the settlement record is included in the term. Thus in ail three Acts it is only necessary that the record should show that the land is knudkasht for it to be retained by the estate-holder. In the Jagir Resumption Act it is laid down in sec. 23(1) that the khudkasht land of a jagirdar shall continue to be held by him. This provision is analogous to sec. 5(4) of the Zamindari Abolition Act and sec. 10 of the Jagir Act is analogous to sec 29 of the Zamindari Act Sec. 10 of the Jagir Act reads as follows:—"As from the date of resumption of any jagir land, any khudkasht land of a jagirdar shall be deemed to be held by the jagirdar as a khatedar tenant and shall be assessed at the village rate". This supports the conclusion which we have arrived at above, that there are separate provisions in law for the retention of khudkasht and for defining the status of the persons who hold such land. It could never have been the intention of the legislature to allow a jagirdar to continue to hold land recorded as khudkasht without any condition whereas in the case of a zamindar or biswedar the condition should be imposed that he be in actual possession. The provisions in the Jagir and Zamindari Acts regarding the status of the former estate holders are repeated in the Rajasthan Tenancy Act in sec. 13. This section says that on the resumption or abolition of an estate under any law in force in the whole or any part of the State, the estate-holder holding khudkasht shall become a khatedar tenant thereof and shall be subject to all the liabilities imposed on a khatedar tenant by or under this Act. The proviso to this section, which in fact should be called sub-sec. The proviso to this section, which in fact should be called sub-sec. (2), says that the zamindar or biswedar holding khudkasht on the abolition of his estate under the Rajasthan Zamindari and Biswedari Abolition Act, 1959 shall become the malik of such land and shall be entitled to all the rights conferred and be subject to all the liabilities imposed on a khatedar tenant by or under this Act. It will be seen that the proviso to sec. 13 of the Tenancy Act is in substance a repetition of sec. 29 of the Zamindari Abolition Act except that there is no reference to occupation. A suit under the Rajasthan Tenancy Act hinging on the issue of khudkasht must take account of the relevant provisions in that Act itself. To sum up, in considering the broad question of retention of khudkasht, there has to be a harmonious construction of the provisions of the three Acts involved. As we have said above, it could never have been the intention that a jagirdar under the Jagir Resumption Act should continue to hold his recorded khudkasht whereas a zamindar or biswedar could retain only that portion of his recorded khudkasht which was in his personal occupation. We are of the opinion that sec. 29 of the Zamindari and Biswedari Abolition Act merely defines the status of the zamindar or biswedar in respect of his khudkasht land and is analogous to sec. 10 of the Jagir Resumption Act. These provisions are repeated in sec. 13 of the Tenancy Act and in any case, in view of the wording of the proviso to sec. 13 of that Act, a zamindar or biswedar holding khudkasht is to be treated as a khatedar tenant irrespective of whether he was or was not in occupation of the land on the date of vesting. Thus it matters little whether on that date the land was held by another person under a usufructuary mortgage and this will not affect the right of the estate-holder. Thus it matters little whether on that date the land was held by another person under a usufructuary mortgage and this will not affect the right of the estate-holder. We therefore answer the reference as follows— If before the abolition of his zamindari or biswedari under the Rajasthan Zamindari and Biswedari Abolition Act 1959 a zamindar or biswedar has made a usufructuary mortgage of his proprietary lands which are not recorded as khudkasht in the annual registers before the date of vesting, he will have no locus standi to bring a suit for redemption and for possession of the lands in question as his right, title and interest therein as biswedar will have been trans-ferred to and will have vested in the State Government. However, in respect of lands recorded as his khudkasht in the annual registers before the date of vesting, such person will acquire the status of a khatedar tenant under the Rajasthan Tenancy Act and will be entitled to institute or continue a suit for redemption and for possession against the mortgagee, the mortgage on the date immediately preceding the date of vesting being deemed to have been substituted by a simple mortgage redeemable on such payment, if any, as may be due.