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PETITIONER: BUDHA

       Vs.

RESPONDENT: AMILAL

DATE OF JUDGMENT21/12/1990

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) KULDIP SINGH (J)

CITATION:  1991 AIR  663            1990 SCR  Supl. (3) 656  1991 SCC  Supl.  (2)  41 JT 1990 (4)   804  1990 SCALE  (2)1306

ACT:     Rajasthan Zamindari and Biswedari Abolition Act,   1959- Section  29(1)--’Khudkasht’--Whether  Zamindar/Biswedar  be- comes Malik--Lands vests in government.

HEADNOTE:     One  piece  of  Agricultural  land  bearing  khasra  No. 711/531 was mortgaged by way of usufructuary mortgage by one Kallu Ram in favour of Sheo Ram, the father of the  respond- ent, and another piece of agricultural land, bearing Kh. No. 390,  was mortgaged by the appellant and Kallu Ram  together in the same manner in favour of Sheo Ram. Kallu Ram and  the appellant  were biswedars in respect of those  lands.  Kallu Ram  died  and the appellant claimed that on  the  death  of Kallu  Ram property devolved on him. The appellant  filed  a suit for redemption of aforesaid mortgages against Sheo  Ram before the Munsif Magistrate, Kishangarh Bas. The  defendant contested  the  suit and pleaded that on  the  abolition  of Biswedari, consequent on the coming into force of the Rajas- than Zamindar and Biswedari Abolition Act, 1959, the rights, title  and  interest in the lands in question  stood  trans- ferred  and vested in the State of Rajasthan and the  appel- lant  did not have the right to redeem the mortgage. It  was also  pleaded that on the date of the creation of the  mort- gage, the appellant and Kallu Ram were not in possession  of the  lands and the defendant was in possession of the  lands as kashtkar since before the mortgages. An objection to  the jurisdiction  of the civil court to entertain the  suit  was also raised. The trial magistrate dismissed the suit holding that  in  view of section 5(2)(b) of the Act, the  lands  in question stood transferred to the State and have got  vested in  the  State and the appellant did not have any  right  to file the suit in respect of the same. The appellant filed an appeal  against  the  said order which was  allowed  by  the Additional  Civil  Judge. The Additional Civil  Judge,  held that  the name of the appellant appeared as holder of  Khud- kasht  in the annual register and that he had thus  acquired khatedari rights in respect of the lands in question and  as such he could maintain the suit for redemption of the  mort- gages. The matter was thus remanded for trial. The defendant filed  a  second appeal in the High Court.  The  High  Court

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allowed the appeal and restored the judg- 657 ment  and decree of the Munsiff dismissing the suit  of  the appellant.  The High Court held that the appellant  did  not raise  the plea with regard to the lands in  question  being his  Khudkasht  lands in the pleadings and any  evidence  in support  of the same could not be thus looked into. It  fur- ther  took the view that the appellant himself  had  pleaded that since the execution of the mortgage deeds, the  posses- sion  of  the  lands remained with the  defendant  and  that clearly  showed that the appellant was not in possession  of the  lands  after the execution of the  mortgage  deeds  and therefore the right of the appellant in the lands in dispute stood abolished after the coming into force of the Act. Hence this appeal by the appellant. Dismissing the appeal, this Court     HELD:  Literally  speaking the  word  ’khudkasht’  means personal  cultivation.  The definition  of  this  expression contained  in  Section 5(23) of the Rajasthan  Tenancy  Act, which  is in two parts, indicates that it has been  used  in the  same sense in the Act. In the main part  Khudkasht  has been defined to mean land cultivated personally by an estate holder. This is further clarified by clause (25) of  Section 5 of the Rajasthan Tenancy Act which defines the  expression ’land  cultivated  personally’ to mean  land  cultivated  on one’s  own account (i) by one’s own labour, or (ii)  by  the labour  of  any member of one’s family, or (iii)  under  the personal  supervision  of  oneself or any  member  of  one’s family  by hired labour or by servants on wages  payable  in cash or in kind but not by way of a share in crops. [664C-D]     The  expression ’Khudkasht’ as defined in Section  5(23) of  the  Rajasthan Tenancy Act, would, not include  land  in possession  of  and  cultivated by a  tenant  or  mortgagee. [664G]     In the instant case, the appellant has come forward with a  specific  case  in the plaint that the  defendant  is  in possession  of the lands in dispute as a mortgagee from  the date of the two mortgagees. In other words the appellant was not  in possession/occupation of the said lands on the  date of westing of the estate of the appellant under the Act. The appellant  cannot.  therefore,  claim  Khatedari  rights  in respect of the lands in dispute. [667B-C]      Gurucharan  Singh v. Kamla Singh and Others,  [1976]  1 SCR  739; Ramesh Bejoy Sharma and Ors. v. Pashupati Rai  and Ors.  [1980] 1 SCR 6; P. Lakshmi Reddy v. L. Lakshmi  Reddy, [1957] SCR 195 at 658 202; Bhubaneshwar Prasad Narain Singh and Ors. v. Sidheshwar Mukherjee and Ors., [1971] 3 SCR 639; Kailash Rai v. Jai Jai Ram, [1973] 3 SCR 411, referred to.     Gummalapura Taggina Matada Kotturuswami v. Setra Veerav- va and Others, [1959] Supp. 1 SCR 968; Harihar Prasad  Singh and  Another  v.  Must. of Munshi Nath  Prasad  and  Others, [1959] SCR 1, not applicable.

JUDGMENT: