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PETITIONER: RAJ NARAIN PANDEY & ORS.

       Vs.

RESPONDENT: SANT PRASAD TEWARI & ORS.

DATE OF JUDGMENT31/10/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ CHANDRACHUD, Y.V. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR  291            1973 SCR  (2) 835  1973 SCC  (2)  35  CITATOR INFO :  F          1975 SC1069  (38)  F          1987 SC1986  (26)  R          1987 SC1996  (13)  RF         1991 SC1654  (33)

ACT: U.P.  Tenancy Act (17 of 1939) ss. 33, 44, 45, 82  and  180- Scope of Stare  Decisis-Application by Supreme Court with respect  to decisions of High Court interpreting local Statutes. In  interpreting  ss.  33, 44, 45, 82 and 180  of  the  U.P. Tenancy  Act,  1939,  the  High Court,  in  two  Full  Bench decisions,  namely  Chassu v. Babu Ram  [A.I.R.  (31)  1944, Allahabad  25]  Mahabal Singh v. Ram Rai (A.I.R.  (37)  1950 Allahabad 604), held :

HEADNOTE: (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 year  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) that the relationship which comes  into existence  as  a  result of the  mortgage  of  an  occupancy holding   and  its  possession  being  transferred  to   the mortgagee, is analogous to that of a mortgagor and mortgagee and  the  action  to  recover  possession  is  analogous  to redemption  and  (6) such a suit is maintainable suit  in  a civil court. In  the  present case, the occupancy tenant of the  land  in dispute  executed a mortgage deed in respect of the land  in favour  of  the  appellants  and  put  them  in  possession. Respondents  1  to  6  were  subsequently  accepted  as  the occupancy tenants by the landlords in place of the  previous occupancy  tenant  and  have also been declared  to  be  the

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Bhumidars of the land.  Respondents 1 to 6 filed a suit  for possession of the land, after depositing the mortgage  money in court. The suit was decreed in appeal, by the High Court, following the earlier Full Bench decisions. Dismissing the appeal to this Court, HELD  : (1) 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 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  by  a superior court riot strictly bound by the decision. [840  B- E] Brownsaa  Haven  Properties v. Poole Corpn. [1958]  Ch.  574 (C.A.) referred to. (2)  The  status of the appellants was analogous to that  of the  mortgagees and the successor of the original  mortgagor would be entitled to 836 recover  possession of the land on payment of  the  mortgage money.  As respondents 1 to 6 were the occupancy tenants  of the land and as they were declared to be the Bhumidars, they had  sufficient interest in the land, to institute the  suit under  s.91 (a) of the Transfer of Property Act, 1882.  [841 A-E]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1308  of 1967. Appeal  by special leave from the judgment and decree  dated December  7, 1966 of the Allahabad High Court in Appeal  No. 5252 of 1960. C.   B. Agarwal and K. P. Gupta, for the appellant. G.   N. Dikshit and S. K. Bisaria, for the respondents. The Judgment of the Court was delivered by KHANNA, J. This appeal by special leave is directed  against the judgment of Allahabad High Court whereby that Court  re- versed  the  decisions  of the trial  Court  and  the  first appellate  court and awarded a decree for the possession  of the  land in dispute in favour of the  plaintiff-respondents against  the  defendant-appellants.   The appellants  were further held to be entitled to withdraw the mortgage  amount which had been deposited by the respondents. On  January  16, 1923 Ganga Prasad Rai, father  of  Lachhman Singh  plaintiff-respondent No. 7, executed a mortgage  deed in  respect of land in dispute for Rs. 600 in favour of  Ram Cheej  Pandey  and  put  him  in  possession  thereof  as  a mortgagee.  Ram Cheej Pandey, who was impleaded as defendant No.  1 in the suit, is now dead and the appellants, who  too were impleaded as defendants, are his legal representatives. Ganga  Prasad  Rai  at  the time of  the  mortgage  was  the occupancy tenant of the land in dispute.  On January 6, 1955 plaintiff-respondents  No. 1 to 6 along with Lachhman  Singh plaintiff No. 7 filed the present suit for possession of the land in dispute against Rain Cheej Pandey and others on  the allegation  that  Lachhman  Singh had  transferred  all  his rights  in the land with the consent and permission  of  the Zamindar  (the land-lord) in favour of plaintiffs  to  .  It was  stated  that,  as  a  result  of  the  said   transfer, plaintiffs  1 to 6 had become the occupancy tenants  of  the

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land in dispute.  The plaintiffs 1 to 6 also claimed to have acquired  Bhumidari  rights of the land  by  depositing  ten times  the-  amount of the land revenue.  According  to  the plaintiffs,  they  had a right to redeem the land  from  the mortgagee,  but  as the mortgagee was not prepared  to  give back  the land on receipt of the mortgage money, the  plain- tiffs  were  depositing the amount in court.   It  was  also added that plaintiff No. 7 had been joined as a co-plaintiff with  plaintiffs  1 to 6 to avoid any dispute.   Rai  Narain Pandey, son of Ram Cheej 837 Pandey,  as  well  as  two minor sons  of  Raj  Narain  were impleaded  as  defendants  on  the  ground  that  the   four defendants  were members of the joint Hindu family  and,  as such, were in possession of the land in suit. The  suit  was contested by Raj Narain Pandey.   Raj  Narain Pandey admitted the mortgage alleged by the plaintiffs.   It was, however, averred that plaintiffs 1 to 6 had no right to redeem the land.  The plaintiffs suit was further stated  to be  barred  by  limitation  as,  according  to  the  written statement, the defendants were in adverse possession of  the land for more than 12 years. The  trial  court  found that the plaintiffs  suit  was  not barred by time.  The plaintiffs were, however, held to  have no right to sue.  In the result, the suit was dismissed.  On appeal,  learned  Additional Civil Judge  Ballia  held  that plaintiffs  1 to 6 were not the successors of plaintiff  No. 7.  It was further observed that the defendants,  after  the mortgage,  had become trespassers in the land and  the  suit against them was barred by time.  When the matter was  taken up in second appeal before the High Court, the learned Judge held  that  in  1946 plaintiffs 1 to 6 had  acquired,  as  a result of agreement with the Zamindar, the same rights which had  vested in plaintiff No. 7 before he  surrendered  those rights.   The  learned Judge further referred  to  two  Full Bench decisions of Allahabad High Court, namely, Ghassu  and Anr.  v. Babu Ram and Anr.(1) and Mahabal Singh and Anr.  v. Ram  Raj and Ors. (2) and in the light of  those  decisions, held that mortgagee of an occupancy holding by remaining  in possession for over 12 years did not extinguish the right of the  mortgagor  to  redeem him and by  such  possession  the mortgagee only prescribed for mortgagee rights.  It was fur- ther  held that the plaintiffs were entitled to  redeem  the mortgage  and  recover possession of the land and  that  the suit  of  the  plaintiffs was not barred by  time.   In  the result, the plantiffs appeal was accepted, the decisions  of the courts below were set aside, and a decree for possession of the land in dispute was awarded in the plaintiffs favour. The  defendants were held entitled to withdraw the  mortgage amount already deposited by the plaintiffs. Mr.  Agarwal in appeal before us has submitted on behalf  of the  defendant-appellants that plantiff-respondents 1  to  6 were  not entitled to sue for possession of land on  payment of  the  mortgage’ money and that their suit was  barred  by limitation.  The above submissions have been controverted by Mr.  Dikshit on behalf of the plaintiff-respondents, and  he has  canvassed for the correctness of the view taken by  the High Court. Before dealing further with the matter, we may refer to some of  the statutory provisions which have been referred to  by Mr.  Agarwal.   Sub-section (1) of section 33  of  the  U.P. Tenancy Act, (1) A.I.R. (31) 1944 Allahabad 25. (2) A.I.R. (37) 1950 Allahabad 604. 838

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1939  (U.P. Act No. 17 of 1939) (hereinafter-referred to  as the Act of 1939) provides, inter alia, that the interest  of an  occupancy tenant is not transferable, otherwise than  in accordance  with  the provisions of the Act.   According  to sub-section  (1) of section 44 of that Act, every  transfer, other than a sub-lease, made by a tenant in contravention of the  provisions of this Act, shall be void.  Section  45  of the  above  mentioned  Act  deals  with  the  extinction  of tenancy,  and  according to clause (c) of the  section,  the interest  of a tenant shall be extinguished subject  to  the provisions of sections 82 to 88 by surrender.  Surrender  by a  tenant  is dealt with in section 62 of the  Act.   It  is provided in the section that a tenant not bound by lease  or other  agreement for a fixed term to continue to occupy  the land,- may at the end of any agricultural year surrender his holding,  by sending a registered notice to  his  landholder intimating  his  intention  to  do  so  and  by  giving   up possession thereof whether such holding is or is not sub-let or  mortgaged.   Further conditions are also  prescribed  in that  section, but we are not concerned with them.   Section 180  of  the above mentioned Act provides for  ejectment  of person  occupying land without consent.  According  to  this section,  a person taking or retaining possession of a  plot of land without the consent of the person en titled to admit him  to  occupy such plot and otherwise than  in  accordance with the provisions of the law for the time being in  force, shall be liable to ejectment under this section on the  suit of the person so entitled and also to pay damages which  may extend  to four times the annual rental value calculated  in accordance   with   the  sanctioned  rates   applicable   to hereditary  tenants.  The Fourth Schedule to the  Act  deals with  suits  triable by Revenue Courts  and  prescribes  the period  of  limitation  for such suits.   Subclause  (b)  of clause  2  of item No. 18 of Group B of  the  said  Schedule prescribes  a period of two years for filing the suit  under section 180 of the Act "from the 1st July following the date of the commencement of this Act, whichever is later". Reference has also been made by Mr. Agarwal to the following passage in the judgment of the High Court:               "At  the same time, it is equally  clear  that               the  rights acquired by plaintiffs No. 1 to  6               as a result of the contract of tenancy entered               into  by the Zamindar in their favour in  1946               were  the same rights which vested in the  7th               plaintiff  before  surrender  and  which   had               passed on to the Zamindar by act of  surrender               by  the  7th plaintiff.  At the  time  of  the               settlement  in  1946 the  defendants  were  in               possession under a void usufructuary mortgage.               The  surrender by the 7th plaintiff  preceding               the  aforesaid  settlement  could  only  be  a               surrender of such Tights as the 7th  plaintiff               still  had  at that time and,  similarly,  the               settlement in favour of plaintiffs Nos. 1 to               839               6 by the Zamindar could only be settlement  of               those very rights.  What, therefore, has to be               considered  is  what  was the  nature  of  the               rights which the 7th plaintiff Lachhman  Singh               retained after executing the void mortgage  in               1923  and putting the first defendant in  pos-               session." It  is  urged  by Mr. Agarwal that though  plaintiff  No.  7 surrendered his occupancy rights in favour of the  landlord, the  effect  of  that was not only  the  extinction  of  the

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occupancy rights but also the extinction of the mortgage  in favour  of the defendant-appellants.  The possession of  the land  in dispute by the defendant-appellants thereafter  was as  trespassers.   A  suit against them,  according  to  Mr. Agarwal,  should have been brought in the Revenue  Court  by the  plaintiff-respondents, in whose favour fresh  occupancy rights  had been created by the land-lord, within two  years under  section 180 read with item 18 of Fourth  Schedule  of Act  of 1939.  As no suit was brought within the  prescribed time  against defendant appellants and as they  remained  in adverse possession of the land for a period of more than  12 years,   the   present  suit  brought  by   the   plaintiff- respondents, it is submitted, was barred by time. 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 a five-judge  decision  of the  Allahabad High Court in the case of Mahabal  Singh  and Anr. v. Ram Rai and Ors. (supra), the court referred to  the decision of a three-judge bench of that court in the case of Ghassu and Anr. v. Babu Ram and Anr. (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.                                    840               (5)   The   relationship  which   comes   into               existence  as a result of the mortgage  of  an               occupancy  holding  and its  possession  being               transferred  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 disturb-Id.   A different  view  would  not only  introduce  an  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

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observed by Lord Evershed M.R. in the case of Brownsea Haven Properties  v.  Poole Corpn.(1), 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. In the light of the above mentioned Full Bench decisions, it cannot,  be  disputed  that the  status  of  the  defendant- appellants  was  analogous to that of mortgagees.   It  also cannot  be  disputed  that the  successor  of  the  original mortgagor  would  be entitled to recover possession  of  the mortgaged  land from the defendant-appellants on payment  of the  mortgage  money.  Mr. Agarwal,  however,  submits  that plaintiff-respondents  1  to  6 are not  the  successors  of Laclihman Singh plaintiff No. 7. It is urged that after  the surrender  of  the occupancy rights by Lachhman  Singh,  the plaintiff-respondents  cannot  ask  for  redemption  of  the mortgage created by Lachhman Singh.  This contention, in our opinion,  is not well founded.  The copy of  the  compromise decree  dated  January  4, 1946/February 2,  1945  has  been placed  on record, and it would appear therefrom that  in  a suit  brought: by the plaintiff-respondents 1 to  6  against the landlords and Lachhman Singh (who was described in  that suit as Lachhman Rai), the plaintiffs 1 to 6 were  accepted to be occupancy tenants of the land in dispute.  The (1)  [1958] Ch. 574 (C.A.) 841 effect  of that decree was that while the occupancy,  rights of  Lachhman  Singh  came to an  end,  those  of  plaintiff- respondents 1 to 6 came into existence at the same time.  As plaintiff-respondents 1 to 6 became the occupancy tenants of the land in dispute, they were, in our opinion, entitled  to redeem the land from the mortgagees.  The material on record also  indicates that plaintiff-respondents 1 to 6 have  been declared to be the Bhumidars of the land in dispute.   Sanad dated October 5, 1949 declaring them to be Bhumidars of  the land   was  issued  on  October  5,  1949.    As   plaintiff respondents 1 to 6 were the occupancy tenants of the land in dispute and as they were declared to be Bhumidars, they had, in  our opinion, sufficient interest in the land as  clothed them  with  the  right to redeem  it  from  the  mortgagees. Clause  (a)  of section 91 of the Transfer of  Property  Act provides,  inter  alia,  that any  person  (other  than  the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon the property mortgaged or in  or upon the right to redeem the same, may institute a suit  for redemption  of  the  mortgaged property.  The  case  of  the plaintiffs, who were the occupancy tenants and Bhumidars  of the  land  in dispute, is clearly covered by clause  (a)  of section  91 of the Transfer of Property Act.  The fact  that the present suit has been filed not by the occupancy  tenant who  mortgaged  the  property  but by  others  in  whom  the occupancy  rights  were subsequently vested  would,  in  our opinion,  make  no  difference and would be no  bar  to  the maintainability  of  the suit.  It is  significant  in  this context  to  observe  that  plaintiffs 1  to  6  became  the occupancy tenants of the same land of which Lachhman Singh’s father was the occupancy tenant at the time of the mortgage. It  has  also been argued by Mr. Agarwal that the  suit  for possession  brought  by the  plaintiff-respondents  was  not maintainable  in a civil court and could only be tried by  a revenue  court.  Apart from the fact that no such  plea  was taken in the written statement or in the trial court or  the first appellate court, we find that the five-judge bench  of

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the  Allahabad High Court in the case of Mahabal  Singh  and Anr. (supra) has held that such a suit is maintainable in  a civil court.  We see no cogent ground to disturb that view. The appeal fails and is dismissed with costs. V.P.S.                          Appeal dismissed. 842