Case: Meharbansingh Vs. Bhagwantsingh and Others

This appeal of one of the plaintiffs, by special leave, is directed against the judgment of the Madhya Pradesh High Court dated February 10, 1972, by which the suit for possession of the lands, which the plaintiffs had mortgaged, has been dismissed even though the trial courts decree for redemption has been maintained. As the matter has come up to this Court for the second time, at the instance of the plaintiffs it is not necessary to state all the facts for they have been mentioned in this Courts earlier decision is Meharbansingh and others v. Nareshsingh and others.(1) It will be sufficient to refer to those facts which bear on the present controversy.The suit lands belonged to Samle Singh, father of appellant Meharban Singh, and Jomdar Singh who executed a registered deed of mortgage in favour of Munshi Singh on May 2 0, 1939, for Rs. 2242/14/-. It is not disputed before us that it was a usufructuary mortgage of land within the area of the former Gwalior State. The mortgagors gave a notice to the mortgagee on May 15, 1943, for redemption of the lands but he refused to accept. The mortgagors filed the suit for redemption on June 15, 1943. As some other persons were alleged to be in possession of the suit lands, they were also impleaded as defendants. The Madhya Bharat Zamindari Abolition Act, 1951 ( Samvat 2008), hereinafter referred to as the Act, came into force on October 2, 1951, and leave was granted to the plaintiffs to amend the plaint suitably. The trial court decreed the suit on October 10, 1958, but disallowed the relief for the gr ant of mesne profits. Three appeals were preferred against that judgment and decree of the trial court. The appellate court dismissed the appeals of the defendants. It held that the suit lands were the khud-kasht lands of the mortgagors, and allowed the appeal of the plaintiffs for mesne profits from the date of the deposit of the mortgage-money. The defendants went in second appeal to the High Court; and the plaintiffs also preferred an appeal for refusal of mesne profits from the date of the cause of action. The High Court partly allowed the defendants appeal by its judgment dated September 27, 1962. It relied on this Courts decision in Haji Sk. Subhan v. Madhorao(1) and held that the plaintiffs were not entitled to possession. It dismissed the appeal of plaintiff Meharbansingh. He applied to this Court for special leave, and that led to this Courts decision in Meherbansinghs case (Supra) mentioned above. This Court allowed the appeal and, after considering the relevant provisions of the Act, remitted the case to the High Court for fresh decision after notice to the state on the point whether the suit land were Khud-kasht of the plaintiffs and they were entitled to remain in possession under section 4 of the Act. The State was therefore allowed to be impleaded as a party and to file a written statement. Certain additional issues were framed by the High Court and the case was remitted to the trial court for its findings. When it came to the High Court again, with those findings it once again took the view that the plaintiffs were not entitled to possession of the suit lands although they were entitled to a decree for redemption. It is against that judgment of the High Court dated February 10, 1973, that plaintiffs Meherbansingh has come up to this Court by way of the present appeal.

Reasoning:
There can be no doubt, therefore, that the trial court recorded the finding, on the basis of the evidence before it, that the suit lands were recorded as the khud-kasht lands of the plaintiffs before the date of the vesting of the estate. That was in fact not disputed in the High CourtAll that the High Court had then to do was to decide whether the appellant was entitled to the benefit of sub-section (2) of section 4 of the Act, for that was the clear direction of this Court in the earlier judgment. It is not disputed before us that the plaintiffs were the proprietors of the suit lands, and it cannot be disputed that as they mortgaged them with possession with defendant Munshi Singh, they were themselves in possession upto the date of the mortgage, and as it has been found as a fact that the lands were recorded as khud-kasht lands of the mortgagors in the annual village papers before the date of vesting, they were clearly entitled to a decree for possession in terms of sub-section (2) of section 4 and there was no occasion for the High Court to examine the consequence of their losing the possession of the lands after the mortgage. It has to be appreciated that possession is always lost by the mortgagor in the case of a mort gage with possession. But when clause (f) of sub-section (1) of section 4 gave the mortgagor the benefit of sub-section (2) of that section to claim the right to remain in possession of his khud-kasht land which was in his possession upto the d ate of mortgage, if the strict requirement of sub-section (2) was shown to exist, there could be no reason why it should be denied to the plaintiffs.It may be mentioned in this connection that when the case came up in first appeal before the Second Additional District Judge of Bhind, he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statements, the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives. But even if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless, of course, they could lay claim to protection under any other lawIt is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the mortgage, if, in the meanwhile, law has not been shown to intervene for their protection. As, in the instant case, the law expressly gave the benefit of sub-section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of possession. A vain attempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim the benefit of that section in face of the clear provision of sub-section(2) of section 4 of the Act.In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Courts decision in Haji Sk. Subhans case (supra). That decision formed the basis of the earlier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority o f this Courts decision in the case of Haji Sk. Subhan" (supra). It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute.