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PETITIONER: PRATAP SINGH @ BABU RAM & ANR.

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION, MAINPURI & ORS.

DATE OF JUDGMENT:       22/09/1999

BENCH: R.P.Sethi, S.S.Ahmad

JUDGMENT:

D E R S.SAGHIR AHMAD, J.       Plot  Nos.  510, 519, 520, 521, 522, 523, 524 and  533 of  Khata  No.   76 situated in village  Akbarpur  Kutubpur, Pargana Mustafabad, Tehsil Jasrana,, District Mainpuri, were recorded  in the basic year in the name of Hiral Lal, father of   the  present  appellants.    When   the   Consolidation operations  under  the U.P.  Consolidation of  Holdings  Act (for  short  "the  Act")   started,  the  respondents  filed objections  claiming, inter alia, that the plots in question constituted   "Sir"   and   "Khudkasht"    land   of   their predecessor-in-interest,  namely, Hansraj, who had mortgaged these  plots in favour of the predecessor-in-interest of the appellants  on 21.1.1920.  On the abolition of the Zamindari by  the  U.P.  Zamindari Abolition & Land Reforms Act,  1950 (for short "the ZA&LR Act") they ought to have been recorded as  "Bhumidhars"  of the said land in view of Section 14  of the ZA&LR Act.  The appellants contested the case before the Consolidation  Officer by filing a written statement and the Consolidation  Officer  by  his  judgment  and  order  dated 29.5.1963 decided the case in favour of Hira Lal.  In appeal which  was filed thereafter by the respondents, it was  held by  the Assistant Settlement Officer, Consolidation, by  his judgment and order dated 11.7.1963, that on the abolition of Zamindari,  possession of Hira Lal became adverse and  since the  respondents  had not filed a suit for ejectment  within the  period  of  limitation (three years from  the  date  of vesting),  they lost all their rights and consequently,  the revenue  entries  in  favour  of   Hira  Lal  could  not  be interfered  with.  This order was upheld in revision by  the Deputy  Director of Consolidation who dismissed the revision on  6.9.1963.   The  respondents, thereafter, filed  a  writ petition  in the High Court which was dismissed on 1.5.1969. In  Special  Appeal,  which  was  thereafter  filed  by  the respondents,  it  was noticed, at the time of hearing,  that there  was a conflict of decisions on the questions involved in  the  case and consequently following two questions  were referred to the Full Bench :  "(a) Whether the possession of the  mortgagee whose rights have extinguished under  section 14(1) of the Zamindari Abolition and Land Reforms Act is, on or after the date of vesting, per se, adverse or permissive? (b)  Does the period of limitation for a suit under  Section 209  of  the U.P.  Zamindari Abolition and Land Reforms  Act commence  to run from the date of vesting or on the date  of demand  for possession?" The Full Bench by majority opinion, which is since reported in AIR 1975 Allahabad 295 (Balwant & Ors.   vs.   The Deputy Director of Consolidation  &  Ors.),

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held  that  the period of limitation for suit under  Section 209  of  the  ZA&LR  Act would not start from  the  date  of vesting  but  from  the  date on  which  the  possession  is demanded  by the mortgagor.  After the decision of the  Full Bench  on  the  aforesaid questions of law, the  matter  was again placed before the Division Bench which disposed of the Special Appeal in terms of the majority judgment of the Full Bench.   The  writ  petition filed by  the  respondents  was allowed  and  the judgment passed by the Deputy Director  of Consolidation  was set aside.  It is this judgment which  is assailed  before us.  Learned counsel for the appellants has invited  our  attention to Entry 30 in Appendix III  to  the Rules made under the ZA&LR Act.  This entry reads as under : --------------------------------------------------------  S. Section  Description Period Time from Proper No.  of the  of suit,  of which court-fee Act application limit- period  and other     tation     begins        to     proceeding     run -------------------------------------------------------- 1 2 3                   4                  5                   6 -------------------------------------------------------- 30. 209 Suit for ejectment of a person taking or retaining poss- ession  of the land unlawfully and for damages:- (i) If  the person  was Three From the As in the in possession of  years date  of Court Fees the land on the vesting Act, 1870,  date of  vesting on one and the period of year’s rent  limitation for  his calculated ejectment speci- at heredi- fied in  the U.P.   tary  rates.   Tenancy  Act, 1939  had  not  expired. (ii)In  case of occu- Three From the -do- pants referred  to years  date of in Section 144 declaration u/s 144.   (iii)In case  of occu- Six From 1st of -do- pants of land held years July  follow-  by a bhumidhar ing the date in the Govt.   of occupation  Estates in which the provisions of the Act  have been extended from time to time (including 85 settled Bhabar Villages    of   Tarai    and    Bhabar   Govt.     Estates. -------------------------------------------------------- 1 2 3                   4                  5                   6 -------------------------------------------------------- (iv)In  case  of occu- Twelve -do- -do- pants of  any  years other  land held by a Bhumidhar or asami where poss-  ession of   such   land  is  taken   or  retained   unlaw-   fully. -------------------------------------------------------- According  to the above entry, a suit for ejectment  against the  person  taking  or  retaining possession  of  the  land unlawfully and for damages could be filed within three years from  the  date  of  vesting.    Learned  counsel  for   the appellants  has  contended that the words "from the date  of vesting"  refer  to the date from which the period of  three years  would start running.  He contended that the period of limitation  has  to  be counted from the  date  of  vesting, i.e.1.7.1952    and    since     the      suit    by     the predecessor-in-interest  of  the respondents was  not  filed within three years from that date, his rights in the land in question  came to an end and the predecessor- in-interest of the appellants acquired title by adverse possession.  We are not  prepared  to subscribe to this view.   The  significant words  in this entry are "taking or retaining possession  of the  land unlawfully".  If the possession from the inception was lawful, it would remain lawful.  Its character would not change  as we shall presently see with reference to  various provisions of the ZA&LR Act.  Zamindari was abolished in the State  of  Uttar Pradesh by the U.P.  Zamindari Abolition  & Land  Reforms Act, 1950, which came into force on  1.7.1952. Section  4(1) of this Act provides that with effect from the date  specified  in  the Notification issued  by  the  State Government under this Section, all estates shall vest in the

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State  free from all encumbrances.  Consequences of  vesting are  indicated in Section 6.  Clauses (g) and (h) of Section 6 provide as under :  "(g)(i) every mortgage with possession existing  on  any  estate or part of an estate 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  Section 4, to have been substituted by  a simple  mortgage;  (ii) notwithstasnding anything  contained in  the  mortgage  deed or any other agreement,  the  amount declared   due  on  a   simple  mortgage  substituted  under sub-clause  (i)  shall carry such rate of interest and  from such  date as may be prescribed;  (h) no claim or  liability enforceable  or  incurred before the date of vesting  by  or against such intermediary for any money, which is charged on or  is  secured by mortgage of such estate or  part  thereof shall,  except as provided in Section 73 of the Transfer  of Property  Act, 1882 (IV of 1882), be enforceable against his interest  in  the estate;" Under clause (g) quoted above,  a mortgage  with  possession  stands converted into  a  simple mortgage,  while clause (h) provides that no claim for money against  an intermediary, relating to the mortgage, would be enforceable  against the interest of the intermediary in the estate  except as provided under Section 73 of the  Transfer of Property Act.  The obvious reason is that the interest of the  intermediary  has  vested in the State  free  from  all encumbrances  and,  therefore, mortgage cannot  be  enforced against  that interest even for recovery of mortgage  money. Recourse can, therefore, be had to the provisions of Section 73  of  the Transfer of Property Act to proceed against  the substituted security for the recovery of the mortgage money. Section  14  of the Act [as it stood at the  relevant  time] provided  as  under  :  "(1) Subject to  the  provisions  of sub-section  (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 possess as such any land in  such  estates.   (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  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;  (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 hereditary rates applicable on the  date  immediately  preceding 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:  Provided that if the mortgagee fails to pay  the amount aforesaid within the time allowed, he  shall thereupon lose all rights in such land which shall be deemed to be vacant land and he shall be liable to ejectment on the suit  of the Gaon Sabha or the Collector, under Section  209 as  if he were a person in possession thereof otherwise than in  accordance with the provisions of this Act,  Explanation I.   For  the  purposes  of  this  section  a  mortgagee  in possession includes a thekedar of his rights as mortgagee in the  land.   Explanation  II.   Where   any  land  has  been mortgaged  with possession and the mortgagor makes a  second or  subsequent mortgage of such land in favour of the  same, or  a  different person, the expression ‘on the date of  the mortgage,  shall mean the date of the mortgage in  pursuance of  which  the  mortgagor first  transferred  possession  to

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mortgagee."  Section  14  (1) purports to  abolish  all  the rights  of  the  mortgagee in possession of an estate  or  a share  therein  with  effect from the date of  vesting.   It specifically  provides that a mortgagee in possession  shall cease  to  have  any right to hold or possess land  in  such estate.   Sub-section (1), however, operates subject to  the provisions of Sub-section (2) as is evident from the opening words  of Sub-section (1).  Sub-section (2) provides that if the  land,  which  was the subject matter  of  the  mortgage referred  to  in  Sub-section  (1),   was  in  the  personal cultivation  of  the  mortgagee  on  the  date   immediately preceding  the date of vesting, then, if such land was ‘sir’ or  ‘khudkasht’  land  of the mortgagor on the date  of  the mortgage,  the  said  land shall be deemed to  be  ‘sir’  or ‘khudkasht’  of  the mortgagor for purposes of  Section  18. The  implication of this provision is that even if the  land was  in the cultivatory possession of the mortgagee, on  the date  of vesting, it would be treated, fictionally, ‘sir’ or ‘khudkasht’ of the mortgagor, provided the land, on the date of  the  mortgage,  was  the ‘sir’  or  ‘khudkasht’  of  the mortgagor.   The immediate effect of this deeming  provision would be that the mortgagor would acquire ‘Bhumidari’ rights in  respect of that land under Section 18 of the Act.  Thus, the  overall effect of Sub-section (1) and (2) of Section 14 is that the rights of a mortgagee come to an end with effect from  the  date  of  vesting   and  the  mortgagor   becomes ‘Bhumidhar’  of  that land under Section 18 of the Act.   To put it differently, the encumbrance created by the mortgagor comes  to  an end as the land vests in the State  free  from encumbrance  but  the  rights of the  mortgagee  to  recover mortgage  money  is preserved as it is provided  in  Section 6(h)  that  it  can  be   recovered  from  the  "substituted security"  under Section 73 of the Transfer of Property Act. We  may  point out that "Bhumidari" rights, acquired by  the mortgagor under Section 18, are new rights created under the Act  after the land in which such rights have been  acquired had  vested  in the State free from all encumbrances.   This land,  notwithstanding  that  it was the subject  matter  of mortgage  prior to the date of vesting, would not be treated as  "substituted security" within the meaning of Section  73 of  the  Transfer of Property Act and a mortgage decree,  if any, cannot be executed against that land.  (See:  Rana Sheo Ambar Singh vs.  Allahabad Bank Ltd., 1962 (2) SCR 441 = AIR 1961 SC 1790) The next and immediate question which crops up is  the question relating to the status of the mortgagee  in respect  of  that  land.  Even though the mortgagee  was  in cultivatory  possession of the land on the date of  vesting, his  rights under the mortgage qua that land come to end  as that  land vests in the State subject to the condition  that if  the  land,  on  the date of the mortgage  was  ‘sir’  or ‘khudkasht’  land  of the mortgagor, the latter, namely  the mortgagor  would become a ‘Bhumidhar’ under Section 18.   If in these circumstances, the mortgagee continues to remain in possession  in spite of his rights having come to an end  by the  force  of  law,  what would be  the  character  of  his possession;  whether the possession would immediately become ‘hostile’  to  that  of  the   mortgagor  who  has  acquired ‘Bhumidari’  rights under Section 18, or the mortgagee would be  treated to be continuing in possession for and on behalf of the mortgagor.  It is, at this stage, that the words used in  Entry 30 relating to suits under Section 209 of the  Act as set out in Appendix III to the Rules made under the ZA&LR Act  become relevant.  In Column 3 meant for "Description of suit,  application and other proceeding", the words used are "Suit   for  ejectment  of  a  person  taking  or  retaining

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possession  of  the land unlawfully and for damages."  These words  contemplate a suit for ejectment of a person who  has taken  possession  unlawfully  or continues to  retain  that possession  unlawfully.   In  the   case  of  possessory  or usufructuary  mortgage,  possession  is   delivered  to  the mortgagee.   Delivery  of possession to the mortgagee  is  a sine  qua non of such a mortgage.  It is delivered in  terms of  the mortgage by the mortgagor of his own volition to the mortgagee.  The mortgagee gets possession over the land only because  it  has  been  delivered to him  in  terms  of  the mortgage  deed  which  equally binds him.   The  entry  into possession of the mortgagee in these circumstances cannot be said  to be unlawful.  Once the possession was delivered  to the mortgagee lawfully by the mortgagor himself, the further retention   of  that  possession  by  the  mortgagee   would obviously  be  with  the consent of the  mortgagor  and  the mortgagee  shall  be treated to be retaining the  possession for  and  on  behalf of the mortgagor till the  mortgage  is redeemed.   The character of possession of the mortgagee who was lawfully inducted into possession by the mortgagor, does not  change  at  any  stage and it continues  to  be  lawful possession.   A  bare  reading of the words of Entry  30  in Appendix  III,  relating to suits under Section 209  of  the Act,  makes it clear that the period of limitation would not run   from  the  date  of   vesting,  as  the  character  of mortgagee’s  possession  remains ‘permissive’ and  does  not become  ‘adverse’ to the interest of the mortgagor who after acquiring  "Bhumidari"  rights under Section 18,  may  still allow  the mortgagee to continue in possession.  As  pointed out  earlier, Entry 30 would apply to a suit where a  person has obtained possession over land "unlawfully" and continues to  retain  that  possession   unlawfully.   The  period  of limitation  in  the case of a ’permissive’ possession  would start  running from the date the mortgagee, who is asked  to deliver   possession,  refuses  to   do   so.    ‘Permissive possession’  means that the mortgagee is in possession  over the  property in question with the leave of the owner, or to put it differently, of the ‘Bhumidar’.  If on being asked to deliver  possession, the mortgagee refuses or declines to do so,  it would give rise to a cause of action on the date  on which possession is refused to be delivered and consequently the  period  of  three years would start running  from  that date.   The  High  Court has considered  the  question  from another  angle.  It has noticed that a usufructuary mortgage stands converted into simple mortgage.  It then proceeded to consider the ingredients of a simple mortgage and ultimately came  to the conclusion that if the matter is examined  from that  angle, then too, the possession of the mortgagee would be  permissive in character and the period of limitation for filing a suit under Section 209 would commence from the date on  which  the mortgagee refuses to deliver possession.   In Shri  Ram vs.  Dhan Bahadur Singh AIR 1965 Allahabad 223  as also  in Mustafa Khan vs.  Deputy Director of  Consolidation 1972  ALJ  854  = AIR 1973 Allahabad 372, it was  held  that possession  of the mortgagee is permissive in the sense that it  is with the consent of the mortgagor.  In Mahabal  Singh vs.   Ram Raj, 1950 ALJ 713 = AIR 1950 Allahabad 604,  which is a Full Bench decision of the High Court, it was held that possession  of  a mortgagee of tenancy land, whose  transfer was  forbidden  by law, would be ‘permissive’ in  character. This  decision  has  since been approved in Raj  Narain  vs. Sant  Prasad  AIR 1973 SC 291 in which this Court  observed, inter  alia,  as  under :  "We are unable to accede  to  the above contention, because we find that the matter is covered by two Full Bench decisions of the Allahabad High Court.  In

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a  five-Judge  decision of the Allahabad High Court  in  the case  of AIR 1950 All 604 (supra), the court referred to the decision of a three judge bench of that court in the case of AIR  1944  All 25 (supra) and found that the following  five propositions  had been laid down in the earlier case :  "(1) That  the usufructuary mortgage of an occupancy holding by a tenant is void and not voidable.  (2) That a mortgagor after giving possession to the mortgagee cannot recover possession of  the holding without paying the money which he had  taken from  the  mortgagee.  (3) That a mortgagee of an  occupancy holding  by  remaining in possession for over 12 years  does not extinguish the rights of the mortgagor to redeem him and by  such  possession  the   mortgagee  only  prescribes  for mortgagee  rights.  (4) That it is open to the mortgagor  to seek   possession   of   the   holding  by   tendering   the consideration  which  he had received and he may do so by  a redemption  suit.   (5)  The relationship which  comes  into existence  as  a  result  of the mortgage  of  an  occupancy holding   and  its  possession   being  tranferred  to   the mortgagee,  though not strictly speaking that of a mortgagor and  a mortgagee, is analogous to that relationship, and the action  which  is  raised  by   the  mortgagor  to   recover possession of the holding on payment of the money due to the mortgagee,   though  not  strictly  in   the  nature  of   a redemption,  is analogous to a redemption suit." It was also observed that to take a contrary view from the law laid down in  those  five  propositions  would   have  the  effect  of unsettling  the law established for a number of years.   Mr. Agarwal  has  not  questioned the correctness of  the  above mentioned five propositions and, in our opinion, rightly so. 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 an element of  uncertainity  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." We are not,  in  this case,  considering  the question of the mortgagee  acquiring title  by  adverse possession against the  mortgagor.   That question  is separate and distinct from the question we  are considering  in  the instant case in which we are  concerned only  with  the interpretation of Entry 30 of  Appendix  III which  prescribes the period of limitation for a suit  under Section  209 of the UPZA&LR Act.  Of course, if the suit  is not  filed within the period of limitation, the consequences indicated  in Section 210 of the ZA&LR Act will follow  with the  result that the person already in possession unlawfully or  retaining such possession qua the "Bhumidari" land would immediately  acquire the status contemplated by Section 210. In our opinion, the majority decision of the Full Bench lays down  the  correct law.  The Full Bench decision  has  since been  followed  by Hon.  R.M.  Sahai, J.  (as  His  Lordship then  was) in Tribeni vs.  Chakauri & Ors.  1982 ALJ 784, in which  it was laid down that the rights of a mortgagee  come to  an  end from the date of vesting and his possession  was ‘permissive’ in character and not adverse to the interest of the  mortgagor.   We find no merit in this appeal  which  is accordingly dismissed.  There will be no order as to costs.