Case: Sita Saran Singh Vs. Kedar Prasad Singh and Others

in Schedule 3 of the plaint shall be sold to satisfy the decretal dues.4. Under the two mortgages mentioned above, the mortgagor had mortgaged his preparatory right in the properties mentioned in the Schedule annexed to those mortgages. We were told at the bar that the second mortgage was in respect of the very properties that had been mortgaged under the first mortgage. According to the defendants all the properties mortgaged under the two deeds mentioned earlier had vested in the Government in view of the provisions of the Act and therefore the mortgagor could have proceeded only under Section 14 of that Act. The defendants contended that the present suit was barred by the provisions of the Act. It was claimed on behalf of the plaintiffs that the properties mentioned in Schedule 3 of the plaint are Zirat, Bakasht and Giarmazrua lands. The contention of the plaintiffs was that the properties that fall within the scope of Section 6 of the Act have not vested in the Government under Section 4.In support of that proposition, the plaintiffs relied on the Full Bench decision of the Patna High Court in Sidheshwar Prasad Singh v. Ram Saroop Singh. (AIR 1963 Pat 412 : 1963 BLJR 802.) The High Court accepted that contention and decreed the suit as mentioned earlier.5. As mentioned earlier the very question that we are now called upon to decide had been considered and decided by this Court in Shivashankar Prasads case (supra). Therein this Court ruled that the properties mentioned in Section 6 of the Act have also vested in the Government under Section 4. Dealing with that question this Court observed :"The consequences of the vesting of an Estate is set out in Section 4. Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely, free from all encumbrances. Among the rights enumerated therein undoubtedly includes the right of possession. In view of Section 4(a) there is hardly any doubt that the proprietor loses all his rights in the Estate in question. After setting out the various interests lost by the proprietor that section proceeds to say "such proprietor or tenure-holder shall cease to have any interests in such Estate or tenure other than the interests expressly saved by or under the provisions of this Act". In order to find out the implication of the clause extracted above we have to go to Section 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in Khas possession of an intermediary on the date of vesting (including certain classes of land specified in that section) shall subject to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a rayat under the State having occupancy rights in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.Reading Sections 3, 4 and 6 together, it follows that all Estates notified under Section 3 vest in the State free of all encumbrances. The quondam proprietors and tenure-holders of those Estates lose all interests in those Estates. As proprietors, they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in Section 6, the State settled on them rights of Rayats. Though in fact the vesting of the Estates and the deemed settlement of the Rayats rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free from all encumbrances. Then followed the deemed settlement by the State of Rayats rights on the quondam proprietors. Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within Section 6."6. Even according to the mortgagors, the properties mentioned in Schedule 3 of the plaint are properties coming within Section 6. Hence it must be held that these properties had vested in the Government in view of the notification, dated May 20, 1952, issued by the State under sub-section (1) of Section 3 of the Act. In the aforementioned decision this Court further ruled that after the vesting of the Estate, the mortgagee can only have recourse to Section 14 of the Act for realising the amount due to him under the mortgage. As, Section 4(d) of the Act provides that :"No suit shall lie in any Civil Court for the recovery of any money due from such proprietor (proprietor whose Estate has vested in the State) or tenure-holder the payment of which is secured by mortgage of, or is a charge on, such Estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped."In that decision this Court overruled the decision of the Patna High Court in Sidheshwar Prasad Singhs case (supra).7. Mr. D. P. Singh, learned for the respondents contended that the decision in Shivshankars case (supra), is in conflict with the decision of this Court in Ram Kishan Nahton and Other v. Chhotten Lal and Others. (AIR 1963 Pat 412 : 1963 BLJR 802.) We do not think that there is any substance in this contention. Therein the question that arose for decision by this Court was whether a mortgagor who has trespassed on the mortgaged property which was in the possession of the mortgagee can resist the claim of the mortgagee to be in possession. The question that arose for decision in that case does not bear on the question of law that we are called upon to decide in the present case.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We do not think that there is any substance in this contention. Therein the question that arose for decision by this Court was whether a mortgagor who has trespassed on the mortgaged property which was in the possession of the mortgagee can resist the claim of the mortgagee to be in possession. The question that arose for decision in that case does not bear on the question of law that we are called upon to decide in the present case.Even according to the mortgagors, the properties mentioned in Schedule 3 of the plaint are properties coming within Section 6. Hence it must be held that these properties had vested in the Government in view of the notification, dated May 20, 1952, issued by the State under(1) of Section 3 of the Act. In the aforementioned decision this Court further ruled that after the vesting of the Estate, the mortgagee can only have recourse to Section 14 of the Act for realising the amount due to him under the mortgage. As, Section 4(d) of the Act provides that :"No suit shall lie in any Civil Court for the recovery of any money due from such proprietor (proprietor whose Estate has vested in the State) orthe payment of which is secured by mortgage of, or is a charge on, such Estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped."In that decision this Court overruled the decision of the Patna High Court in Sidheshwar Prasad Singhs case (supra).