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PETITIONER: MISHRI LAL (DEAD) BY LRS.

       Vs.

RESPONDENT: DHIRENDRA NATH (DEAD) BY LRS. & ORS.

DATE OF JUDGMENT:       06/04/1999

BENCH: Umesh C. Banerjee, M. Jagannadha Rao

JUDGMENT:

BANERJEE,J.

     This  appeal  is  directed against the  order  of  the Madhya  Pradesh High Court confirming the preliminary decree passed by the trial court and allowing the plaintiffs’ claim for  redemption in respect of mortgaged houses and khudkasht land.    2.    The   contextual   facts  record   that   the defendant-mortgagee   has  challenged  the   right  of   the plaintiff-mortgagor  to  redeem assorted items  of  property which  were  mortgaged prior to the enactment of the  Madhya Bharat  Zamindari  Abolition Act, 1951 (Samvat  2008).   The learned  trial  judge  decreed  the   suit  and  the  appeal therefrom  however before the learned single judge  resulted in  an order of reference before a Division Bench by  reason of  expression of a view contra, by another Single Judge  of Indore  Bench in second appeal No.498 of 1965, (Yakub son of Kasamji  v.   Yakub  son of Fakir Mohammad &  Ors.)  3.   On however  a  detail  analysis of facts it  appears  that  the plaintiff-   respondent  being  the   Zamindar  of   village Kamalpur,  during the subsistence of the Zamindari, executed two  mortgage-deeds dated 4.8.1947 and 5.1.1948 in favour of the  defendant-appellant  for  securing  thereunder  a  loan against movable property and houses, Zamindari and Khudkasht lands.   The  possession  of the mortgaged property  as  the record shows was delivered to the mortgagee-defendant and in a suit filed for redemption of the mortgage, the trial court as noted above decreed the suit with an express finding that the  plaintiff was entitled to redeem the mortgage.  4.   Be it noted here that the Madhya Bharat Zamindari Abolition Act has  been engrafted into the statute book for acquisition of rights  of proprietors in villages, Muhals, Chaks or  blocks settled  on  Zamindari system so as to subserve  the  public purposes  of  the improvement of agriculture  and  financial condition  of  agriculturists  and came into force  on  25th June,  1951.   5.   Section  2c,  defined  "Khudkasht  land" meaning  thereby  land  cultivated by  Zamindar  himself  or through  employees  or  hired labourers and  includes  ‘sir’ land.   Section  3  of the Act provides for vesting  of  the proprietary  rights  in the State and Section 4 records  the consequence of vesting of an estate in the State.  Section 4 (27)  provides  that notwithstanding anything  contained  in sub-section  (1) the proprietor shall continue to remain  in possession  of his Khudkasht land so recorded in the  annual village  papers  before  the  date   of  vesting.   6.   It, therefore,   appears  that  that   there  is  a  categorical

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expression  of statutory intent that the land which has  not been  recorded  as Khudkasht land is liable to vest  in  the State.   Conversly  thus, the intent of the  legislature  is loud enough to indicate that while Zamindari or intermediary interest  was  being abolished, due care has been  taken  to protect  the  Khudkasht  land  and  allowed  the  subsisting interest  of  the Zamindar to continue so as to  enable  the Zamindar either to cultivate himself or through employees or hired  labourers and in that event the same would be out  of contemplation  of  the  statute.   The statute  has  put  an embargo  even  on  the mortgagee of Khudkasht  land.   As  a matter  of  fact the Act read as a whole suggests  that  the mortgagee  would  not be able to upgrade his entitlement  or status   and  the  possession  of  Khudkasht   land   stands transferred  from  him to the Zamindar by operation of  law. Section  4  and  various sub-sections thereunder  read  with Sections  5 and 6 categorically depict the same and it is on this  aspect  of the matter we lend our concurrence  to  the observation  of the High Court to the following effect:-  "A mortgagee’s  interest in the mortgaged Khudkasht land is not allowed  to blossom into larger interest of ownership or  of indefeasible  right  to  possess the land in virtue  of  the advent of the new land tenure system.".

     7.   The  definition section as noticed above  and  in particular  the definition of the word "Proprietor" means  a person  as  respects  a village, muhal or  land  settled  on Zamindari  system  owning  whether in trust or for  his  own benefit,  such  village, muhal or land.  The  definition  of "Khudkasht"   under  Section  2c   referring  therein   land cultivated  by the Zamindar himself or through employees  or hired labourers, read with section 4(2), makes it abundantly clear  that  Section  2 (a) cannot but mean that it  is  the Zamindar  or  Proprietor  only who has been allowed  by  the statute  to  obtain  the benefit.  The mortgagee  cannot  be allowed  to claim a better title by reason of the provisions as  noted  above than he has prior to the enactment  of  the statute.   8.  As regards the Yakub’s case the High Court in paragraph  13 of the Judgment observed:- "True, for the view taken  in Yakub’s case (supra) reliance is placed mainly  by the  learned single judge, on a decision rendered by another learned   single  judge  of  this   court  in  Bhagwant   v. Ramchandra  (1961  JLJ  286).   In  that  decision  also,  a simplistic  view of the definition was taken and relying  on Section  2(a)(a)  read with sub-clause (2) of section  2  of Qanoon Mal, Gwalior State, the rights of Zamindar/proprietor were  subrogated to that of his mortgagee and the latter was even  held entitled under Section 38 to claim to be a "Pakka tenant"  and  thereby  to  keep alive his  interest  in  the mortgaged  "Khudkasht"  land  in direct  opposition  to  the object  and purpose of Section 4(1)(f).  Reference was  also made  in  Yakub’s’ case (supra) to a Bench decision of  this Court  in  Khumansingh v.  Dhansingh (1971 RN 351), but,  in our  opinion,  reliance thereon was misconceived.   In  that case, it was held that in "Z.A.  Act" emphasis was on actual cultivation  of the "Khudkasht" lands and not on entry  ("so recorded")  in the revenue record, while construing Sections 2(c)  and  4(2)  of the said Act.  The scope and  object  of Section  4(1)(f) did not come up for consideration of  their Lordships in that case.  Although reference was also made in Yakub’s  case  to  another  Bench decision  of  this  Court, Chaturbhuj  v.  Mohanlal (1961 RN 182), that was also not  a case  of  a  mortgagee  versus Zamindar and  in  that  case, construction  of the provisions merely of Sections 4(2)  and 2(c) has to be read."

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     9.  This aspect of the matter, however, has been dealt with  by this Court in the case of Meharban Singh v.  Naresh Singh  (AIR  1971 SC 77) wherein this Court in  paragraph  8 observed:- "8.  A plain reading of these sections would show that  all  rights, title and interest of the proprietors  in the  area notified were to cease and were instead to vest in the  State  free from all encumbrances with effect from  all encumbrances  with effect from the date of notification  and after  such  vesting  in  the   State  every  mortgage  with possession  existing  on  the  property so  vested  or  part thereof  on  the  date  immediately preceding  the  date  of vesting,  to  the  extent  of the  amount  secured  on  such property  or  part,  thereof,  is   to  be  deemed,  without prejudice  to the right of the State under Section 3 to have been  substituted  by  a simple mortgage.   The  proprietor, however,  notwithstanding other consequences of the  vesting in  a 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.   Now  it  was clearly  open  to  the plaintiffs to show that the  land  in question  was  khudkasht and, therefore, in accordance  with Section  4,  they  were  entitled to  remain  in  possession thereof."

     10.   Mr.   S.K.   Jain, appearing in support  of  the appeal  however contended that subsequent to the decision in Meharban  Singh’s  case this Court in the case of  Budha  v. Amilal  (1990 (4) JT, 804) expressed a different view and by reason  of  divergence  of  views this matter  ought  to  be referred to a larger Bench for resolution and enunciation of the   law  on  the  subject.    For  convenience  sake   the observation of this Court in Budha’s case (supra) is set out herein below:-

     "14.   Even if it is assumed that the lands in dispute have  to  be treated as Khudkasht lands of the appellant  by virtue of clause (i) of the inclusive part of the definition of  ‘Khudkasht’ contained in Section 5(23) of the  Rajasthan Tenancy  Act, the appellant cannot succeed in his claim that he  has acquired Khatedari rights in respect of those  lands on the basis of the provisions contained in sub- section (4) of  Section 5 and sub-section (1) of section 29 of the  Act. Sub-section  (4) of Section 5 provides that  notwithstanding anything  contained  in  sub-section (2) of  Section  5  the Zamindar  or  Biswedar  shall subject to the  provisions  of Section  29,  continue  to  retain  the  possession  of  his Khudkasht,  recorded as such in the annual registers  before the  date  of  vesting.  The words "continue to  retain  the possession",   imply  that  lands   which  are  recorded  as Khudkasht  in the annual register before the date of vesting should  also be in possession of the Zamindar or Biswedar on the date of vesting and if he is in possession of such lands he can continue to retain the possession of the same subject to  the  provisions  of of Section 29.  Sub-section  (1)  of Section 29 prescribes 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 subject  to all the liabilities imposed on a Khatedar tenant by or under the Rajasthan Tenancy Act.  Under this provision Khatedri  rights  have  been  conferred  on  a  Zamindar  or

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Biswedar  as  from the date of the vesting of the estate  in respect  of  Khudkasht  lands  in  the  occupation  of  such Zamindar  or  Biswedar  on  such date.  The  words  "in  his occupation  on such date" postulates that the lands,  though Khudkasht,  should  be in the occupation of the Zamindar  or Biswedar  on  the date of vesting of the estate.   It  would thus appear that in view of sub-section (4) of Section 5 and sub-section  (1)  of Section 29 of the Act the mere fact  of recording of the land as Khudkasht in the settlement records on the date of vesting would not be enough for a Zamindar or Biswedar to acquire Khatedari rights over the said lands and it  is further required that the Zamindar or Biswedar should be in possession/occupation of the said lands on the date of vesting    of    the   estate     under   the   Act.     The possession/occupation  envisaged  by  sub-  section  (4)  of Section  5  and sub-section (1) of Section 29 of the Act  is actual  possession/occupation  and  the   possession  of   a mortgagor  through  the  mortgagee  cannot  be  held  to  be possession or occupation as postulated in sub-section (4) of Section 5 and sub-section (1) of Section 29 of the Act.

     15.   In  the  present  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 vesting of the  estate  of  the appellant  under the Act.  The appellant cannot,  therefore, claim Khatedari rights in respect of the lands in dispute."

     11.   Incidentally,  be it noted that the decision  in Budha’s  case  (supra)  was on interpretation  of  Rajasthan Zamindari  and Biswedari Abolition Act, 1959 whereas  Madhya Bharat   Zamindari   Abolition  Act,   1951  came   up   for consideration  in Meharbansingh’s case.  The later  decision of  this  Court  in  Budha’s case (supra)  however  has  not noticed  the judgment of this Court in Meharban Singh’s case (supra)  and  by reason of the observation of this Court  in paragraph 15 of the judgment in Budha’s case, it can not but be  said that the decision in the later judgment was on  the peculiar  facts of the case.  It is further to be noted that Meharban  Singh’s  case came to be decided as early as  1970 and has been followed for last three decades in the State of Madhya  Pradesh and innumerable number of matters have  been dealt  with  on  the  basis  thereof and  in  the  event,  a different  view is expressed today, so far as this  specific legislation is concerned, it would unsettle the situation in the  State  of Madhya Pradesh and it is on this  score  also that  reliance  on  the doctrine of ‘stare decisis’  may  be apposite.   While  it  is  true that  the  doctrine  has  no statutory  sanction  and  the  same is based on  a  Rule  of convenience  and  expediency and as also on ‘Public  Policy’ but  in our view, the doctrine should and ought always to be strictly  adhered  to by the courts of law to sub-serve  the ends  of  justice.   12.   This Court  in  Muktul  v.   Mst. Manbhari & Ors.  (1959 SCR 1099), explained the scope of the doctrine  of stare decisis with reference to Halsbury’s Laws of  England  and  Corpus  Juris   Secundum  in  the   manner following:-  "The  principles  of ‘Stare  Decisis’  is  thus stated  in  Halsbury’s  Laws of England:   "Apart  from  any question as to the Courts being of co-ordinate jurisdiction, a  decision  which  has been followed for a long  period  of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the

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general  conduct  of  affairs, or in legal procedure  or  in other  ways, will generally be followed by courts of  higher authority  than the court establishing the rule, even though the court before whom the matter arises afterwards might not have given the same decision had the question come before it originally.  But the supreme appellate Court will not shrink from  overruling  a decision, or series of decisions,  which establish a doctrine plainly outside the statute and outside the  common  law,  when  no title and no  contract  will  be shaken,  no  persons can complain, and no general course  of dealing be altered by the remedy of a mistake".

     The  same  doctrine is thus explained in Corpus  Juris Secundum:- "Under the stare decisis rule, a principle of law which  has become settled by a series of decisions generally is  binding on the courts and should be followed in  similar cases.   This rule is based on expediency and public policy, and,  although generally it should be strictly adhered to by the courts, it is not universally applicable."

     13.   Be it noted however that Corpus Juris  Secundum, adds a rider that "previous decisions should not be followed to  the  extent  that  grievous   wrong  may  result;   and, accordingly, the courts ordinarily will not adhere to a rule or  principle  established by previous decisions which  they are  convinced  is erroneous.  The rule of stare decisis  is not  so imperative or inflexible as to preclude a  departure therefrom  in  any  case,  but   its  application  must   be determined  in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result." 14. The  statement though deserves serious consideration in  the event  of  a  definite finding as to the perpetration  of  a grave  wrong  but  that by itself does not denude  the  time tested  doctrine  of  Stare Decisis  its  efficacy.   Taking recourse to the doctrine would be an imperative necessity to avoid  uncertainty and confusion.  The basic feature of  law is its certainty and in the event of there being uncertainty as  regards the state of law - the society would be in utter confusion  resultant  effect  of which would bring  about  a situation  of  chaos - a situation which ought always to  be avoided.

     15.   In  Raj  Narain Pandey & Ors.  v.   Sant  Prasad Tewari  & Ors.  (1973 (2) SCR 835 , H.R.  Khanna, J.  (as he then  was)  observed at page 840 of the Report as  follows:- "In the matter of the interpretation of a local statute, the view  taken by the High Court over a number of years  should normally  be adhered to and not disturbed.  A different view would  not  only  introduce and element of  uncertainty  and confusion,  it  would  also have the  effect  of  unsettling transactions which might have been entered into on the faith of  those  decisions.  The doctrine of stare decisis can  be aptly  invoked  in  such a situation.  As observed  by  Lord Evershed  M.R.  in the case of Brownsea Haven Properties  v. Poole  Corpn.,  there is well established authority for  the view  that a decision of long standing on the basis of which many  persons will in the course of time have arranged their affairs  should not lightly be disturbed by a superior court not strictly bound itself by the decision."

     16.  Recently in Bishamber Dass Kohli v.  Satya Bhalla (1993  (1)  SCC  566)  J.S.  Verma, J.   (as  he  then  was) observed  in respect of a provision of the East Punjab Urban

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Rent Restriction Act, 1949 as follows:-

     "This  is  how  this provision appears  to  have  been understood  at  least ever since then and the people in  the State have arranged their affairs on that basis.  Apart from the  fact that this view commends to us as the correct view, the  desirability  of continuing the settled view is also  a reason in its favour."

     17.   More recently in Gangeshwar Limited v.  State of U.P.   &  Ors.  (1995 (6) SCC 84 this Court observed :-  "We would  have  appreciated this attractive argument had  there not  been  two decisions of the Allahabad High Court in  the way,  which are to the contrary.  These are - State of  U.P. v.   Har Bilas Goel and Jai Ram Singh v.  State of U.P.  The understanding  of  section 6 of the Ceiling Act by the  High Court  reflected in these two decisions, when none has  been placed before us to the contrary, would require upholding on the  principle of stare decisis, for if we go to reinterpret the  provision  contrarily,  it   would  upset  the  settled position  in  the  State  insofar as this  area  of  law  is concerned."

     18.   Paripoornan,  J.  in a similar vein  in  Kattite Valappil  Pathumma & Ors.  v.  Taluk Land Board & Ors.  1997 (4)  SCC  114 observed:- "We are further of the  view,  that even  if  another view is possible, we are not  inclined  to take   a   different  view  at   this  distance   of   time. Interpretation  of  the law is not a mere  mental  exercise. Things  which have been adjudged long ago should be  allowed to  rest  in  peace.  A decision rendered long  ago  can  be overruled only if this Court comes to the conclusion that it is  manifestly wrong or unfair and not merely on the  ground that  another  interpretation is possible and the court  may arrive  at a different conclusion.  We should remember  that the  law  laid down by the High Court in the above  decision has not been doubted so far.  The Act in question is a State enactment.   These  are weighty considerations to hold  that even  if  a different view is possible, if it will have  the effect   of   upsetting  or   reopening  past   and   closed transactions  or unsettling titles all over the State,  this Court  should  be loathe to take a different view.  On  this ground  as  well, we are not inclined to interfere with  the judgment under appeal."

     19.  In this context reference may also be made to two English  decisions:   (a) In Admiralty Comrs.  V.   Valverda (Owners) (1938 Appeal Cases 173 at 194) wherein the House of Lords  observed  that   even  long-established  conveyancing practice,  although  not  as  authoritative  as  a  judicial decision,  will cause the House of Lords to hesitate  before declaring  it wrong and (b) In Button v.  Director of Public Prosecution, Swain v.  Director of Public Prosecutions (1966 AC 591) House of Lords observed:- "In Corpus Juris Secundum, a  contemporary statement of American Law the stare  decisis rule  has  been  stated to be a principle of law  which  has become settled by a series of decisions generally is binding on  the courts and should be followed in similar cases.   It has  been  stated that this rule is based on expediency  and public  policy  and  should be strictly adhered  to  by  the courts.   Under  this  rule courts are bound to  follow  the common  law as it has been judicially declared in previously adjudicated  cases  and rules of substantive law  should  be

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reasonably  interpreted and administered.  This rule has  to preserve the harmony and stability of the law and to make as steadfast   as  possible   judicially  declared   principles affecting  the rights of property, it being indispensable to the  due administration of justice, especially by a court of last  resort, that a question once deliberately examined and decided  should  be  considered  as settled  and  closed  to further  argument.  It is a salutary rule, entitled to great weight  and ordinarily should be strictly adhered to by  the courts.  The courts are slow to interfere with the principle announced  by the decision, and it may be upheld even though they  would decide otherwise were the question a new one, or equitable  considerations  might suggest a different  result and although it has been erroneously applied in a particular case.   The rule represents an element of continuity in  law and  is rooted in the psychologic need to satisfy reasonable expectations,  but  it  is a principle of policy and  not  a mechanical  formula  of  adherence to  the  latest  decision however recent and questionable when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience.

     20.    The   law  as  settled   by   this   court   in Meharbansingh’s  case (supra) has stood the test of time and if  at this juncture a contra opinion is expressed, it  will open  up a series of conflicts and consequent litigation and thereby  disturbing settled position of law in the State  of Madhya  Pradesh.   This  Court’s decision on  the  Rajasthan legislation  has  been decided in the peculiar facts of  the matter  in issue therein.  There is neither any  co-relation nor  any identity of subject, between the two enactments and as  a matter of fact the legislations speak differently.  As such,  we  are not able to record our concurrence  with  the submission  of Mr.  Jain that the law needs to be enunciated more  fully  by reason of a different view as  expressed  by this Court in Budha’s case.  Budha’s case (supra) as noticed above,  has  been  decided  on its own  merits  and  has  no applicability  in  the  contextual facts.  The  doctrine  of stare  decisis therefore, prompt us to reject the contention of Shri Jain.  In that view of the matter and since the High Court  has proceeded on the basis of Meharbansingh’s case  , we  do feel it convenient to record that the High Court  has decided  the  issue in its proper perspective and we see  no reason  to express any different view at this point of time. 21.   The appeal, therefore, fails and is dismissed with  no order as to costs.