Aftab Ahmad v. Zahida Begam — 1985 DIGILAW 639 (ALL)

JUDGMENT M.M. Gopal, Member - This is a second appeal against the judgment and decree of the Additional Commissioner dated 20.8.71 by which he allowed the appeal and decreed the suit of the plaintiff with possession. This appeal was against the judgment of trial court dated 20.1.1970 by which the trial court dismissed the suit. 2. Heard the learned counsels and perused the file. 3. Zahida Begum filed a suit on 27.11.1967 against State, Aftab Ahmad etc. for a declaration that she was the sole sir-holder and subsequently became bhumidhar of the land in suit. Written Statement was filed by Aftab Ahmad on 16.4.1968 denying the plaintiffs case. The case is that Sabit Ali (himself and on behalf of Farjand Ali and Azimun Bibi) gifted the land plot no. 71 to Abdul Gani on 11-12-1929. Relevant pedigree is as follows : Later on Sabit Ali on 14-12-1929 mortgaged the remaining seven plots (on behalf of himself and also on behalf of others mentioned above) to Abdul Gani Abdul Gani died leaving behind his heirs, widow Hasima Bibi, Rafiq Alam. Safiq Alam Khaliq Alam. The plaintiff Zahida is widow of Rafiq Alam. On 24-7-1935 Hashima & others executed registered gift deed in respect of plot no. 71 in favour of Zahida Bibi (Ext-Ka-1). On 21-10-1935 Hasima & others executed sale deed in respect of remaining 7 plots to Zahida Bibi Ext. Ka-4. 4. There was a suit u/s 179 of U.P. Tenancy Act which was decided on 29-6-1949 by which Zahida took possession from the other sub-tenant Gangoo (not a party in the suit). On 15-3-1950 suit, under Section 183 of the U.P. Tenancy Act hied by Gangoo, was dismissed and Zahida was held to be the sir-holder (in that suit, Aftab Ahmad etc. were also parties). 5. Defendants alleged that whatever right Zahida had it was as a mortgagor. It all vanished on the enforcement of Act no. 1 of 1951 (U.P.Z.A. & L.R. Act) and, therefore, she had no right or interest over the land in suit. 6. It is mentioned in the judgment of the Additional Commissioner in the 4th paragraph (before pedigree on page 2) that Madad Ali was the sir-holder of the land in suit. He mortgaged it with possession in favour of Raja Ram grand father of Vishnu Ram defendant no 3. The mortgage was and on 27-6-1929 possession was taken by him. 7. It is mentioned in the judgment of the Additional Commissioner in the 4th paragraph (before pedigree on page 2) that Madad Ali was the sir-holder of the land in suit. He mortgaged it with possession in favour of Raja Ram grand father of Vishnu Ram defendant no 3. The mortgage was and on 27-6-1929 possession was taken by him. 7. From the facts narrated above now it is clear that once Madad Ali mortgaged the land to Raja Ram and then the mortgage was redeemed and possession was taken over on 27-6-1929. 8. So far as plot no. 71 is concerned it was gifted by Sabit Ali to Abdul Gani and then Abdul Ganis heirs gifted it on 24-7-1935 to Zahida plaintiff'. 9. The suit was in respect of 8 plots and so far as the remaining 7 plots are concerned, Sabit Ali (on behalf of himself and on behalf of other members of his family) mortgaged these plots to Abdul Gani who remained in possession. When Abdul Gani died his heirs on 21-10-1935 executed a sale deed in respect of these 7 plots to Zahida Bibi; hence the ancestors of Aftab Ahmad defendant no. 4 and later on heirs of Abdul Gani had transferred theirs rights over seven plots in suit to Zahida Bibi. 10. The ownership of Zahida as sir-holder has also been declared by the revenue court in suit u/s 183 on 15-3-1950. 11. The Assistant Collector 1st Class by his judgment Dated 20-1-1970 has held that neither the plaintiff nor the defendants were the sole bhumidhars in possession and that the possession of the plaintiff was only permissive. But the learned Additional Commissioner set aside the aforesaid judgment and has allowed appeal on 20-8-71 holding that decree u/s 183 U.P. Tenancy Act was binding between the parties and it operated res judicata and on the date of vesting plaintiff was sole sir-holder. Additional Commissioner decreed the suit of the plaintiff 12. Now main important points are to be decided in this appeal. Firstly whether the relationship of mortgagor and mortgagee, if any, existed between the parties on the date of vesting. Secondly what will be the effect of Section 14 of U. P. Z. A. & L. R. Act it the answer of the first point is in negative. 13. Now main important points are to be decided in this appeal. Firstly whether the relationship of mortgagor and mortgagee, if any, existed between the parties on the date of vesting. Secondly what will be the effect of Section 14 of U. P. Z. A. & L. R. Act it the answer of the first point is in negative. 13. The parties have cited several rulings in support of their contentions but generally they are not directly applicable to the present case. 14. The aforesaid two points are connected with one another. The relevant portion of Section 14 (2) of U. P. Z. A. & L. R. Act is as follows :- Section 14 (2) "Where any such land was in the personal cultivation of the mortgagee on the date immediately proceeding 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 Section 18 be deemed to be the sir or khudkasht of the mortgagor or his legal representative." In other words whenever any such land was in the personal cultivation of the mortgagee on the date immediately proceeding the date of vesting it shall be deemed to be sir or khudkasht of the mortgagor. Thus it is clear that the sir or khudkasht of a mortgagor on the date of mortgage shall be deemed to be sir or khudkasht on the date of vesting. But there are 3 conditions precedent for acquiring this right. Those conditions are in the first part of the sub-clause 2 of Section 14 of the Act I of 1951. These conditions are as follows :- (a) The time of possession should be on the date immediately preceding the date of vesting ; (b) it should be under the personal cultivation. (c) and the person in possession must be a mortgagee. In the present case first two conditions are fulfilled that the land was in the personal cultivation on the date immediately preceding the date of vesting but the third condition, that the person in possession must be a mortgagee, has not been fulfilled. 15. In other words if on the date of immediately preceding the date of vesting the mortgagee was in possession, the mortgagor shall be deemed to hold that land as his own sir or khudkasht. 15. In other words if on the date of immediately preceding the date of vesting the mortgagee was in possession, the mortgagor shall be deemed to hold that land as his own sir or khudkasht. In Section 14 in the first part of Clause (2) the word "mortgagee" simpliciter is used. It is not mentioned that "mortgagee" or "deemed to be mortgagee", hence the word "deemed to be mortgagee" cannot be added while interpreting this clause of the section. In the other part of the section it is written that it shall be deemed to be sir or khudkasht ; or as mentioned in sub-clause (2) of Section 18 of Act I of 1951..... shall....be deemed to be the bhumidhar. Thus it is clear that the "mortgagee" (and not deemed to be mortgagee) shall be in possession. If the person in possession is not mortgagee, the Section 14 is not applicable. The two cases are cited by the appellants Ram Behari Singh v. D.D.C. & others, 1972 RD page 347; Smt. Rain Kaur v. Commissioner, 1972 AWR page 577. In these cases the mortgagee was in possession, hence the provision of Section 14 were applicable and it was rightly held that the mortgagor shall be deemed to be bhumidhar. 16. In the present case as the circumstances show that plaintiff Zahida Begum was recorded sole sir-holder of the land in suit. That means she is not recorded as a mortgagee. She is not in possession as a mortgagee of the land in suit. 17. Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together as one system, and self-explanatory of each other. Maxwell Interpretation of Statutes (1981 print) pp. 68-69 (12th edition). The statutes U. P. Z. A. & L. R. Act, Agra tenancy Act of 1926 and U. P. Tenancy Act of 1939 are the statutes 'in pari materia'. Now it is to be seen whether the person in possession retains his character of mortgagee on the date immediately preceding the date of vesting. If by the provision of law of earlier enactments the so called mortgagee ceases to remain as mortgagee and becomes land holder, proprietor or sir-holder, it cannot be said that he is a mortgagee on the date of vesting. 18. In the present suit plot no. If by the provision of law of earlier enactments the so called mortgagee ceases to remain as mortgagee and becomes land holder, proprietor or sir-holder, it cannot be said that he is a mortgagee on the date of vesting. 18. In the present suit plot no. 71 was gifted (on 11-12-1929) to Abdul Gani. In the same way it was gifted on 24-7-1935 to Zahida Bibi and she became the sole owner. 19. In respect of the remaining 7 plots Sabit Ali executed a usufructuary mortgage in favour of Abdul Gani in 1929. The heirs of Abdul Gani subsequently transferred these seven plots through sale deed (dated 21-10-1935) to Zahida Bibi. Apart from this there was decree dated 15-3-1950 in a suit u/s 183 of the U. P. Tenancy Act. In this suit Aftab Ahmad and others were the parties and Zahida Bibi was held to be sols sir-holder of the land. Thus in the present case there has been seal of the court about the nature of the possession, over the land in suit, of the plaintiff Zahida Bibi. She is recorded as sir-holder and thus she on the date of vesting was in possession not as a mortgagee but as the sole sir-holder. Under such circumstances the provisions of Section 14 of Act X of 1951 are not applicable, In the present case. 20. On the reasons given above it is clear that the plaintiff is bhumidhar of all the 8 plots and is in possession and it has been rightly held so by the learned Additional Commissioner. I see no reason to interfere with the judgment of the learned Additional Commissioner, hence it is upheld. 21. The second appeal is hereby dismissed. The parties shall bear their own costs.