Case: Meharbansingh And Others Vs. Nareshsingh And Others

2. It is not necessary to state the detailed facts of the case. Facts necessary for the purpose of this appeal alone may briefly be stated. In May 1939, Samle Singh and Jomdar Singh created a mortgage of the suit land in favour of Munshi Singh for a sum of Rs. 2242/14/-. It is said that in May, 1943 notice given by the mortgagors for redemption of the mortgage was refused by the mortgagee. In June, 1943 the suit giving rise to the present appeal was instituted for redemption of the mortgage. Some other persons who were found to be in possession of the land, claiming to be tenants, were also impleaded as defendants. On May 25, 1951, Madhya Bharat Zamindari Abolition Act XIII of 1951 was enforced. It appears that an application to amend the plaint as a result of the new enactment was disallowed by the trial Court, but on revision the Madhya Pradesh High Court by its order dated October 10. 1955 reversed the order of the trial Court and permitted the plaintiffs to amend the plaint. The pleadings after the amendment gave rise to nearly 17 issues on the merits. On October 10, 1958 the suit was decreed in respect of the relief for redemption but claim in regard to mesne profits was disallowed. Preliminary decree for redemption was accordingly granted. In the course of its judgment the trial Court observed under issue No. 10 as followshave in preceding paras shown that as per allegations in the written statements and the patwari papers, it appears that the suit lands have been in possession of Hanumantsingh, Shambhoosingh, Khemsingh Mansingh and Ramdassingh. It will be discussed later whether they and descendants of Munshisingh are joint owners or not. Before abolition of zamindari, the records show half of the suit lands as the Khudkasht of the above defendants and half as the tenancy holding of Ramdas (Kastkari). These entries however do not confer any title on the parties. Their right to remain in possession is limited i.e., till such time as the property is redeemed by the mortgagors i.e., the plaintiffs. These entries or the rights shown therein cannot prejudice the right of the plaintiffs."The Court while deciding issues Nos. 16 and 17 observedhave discussed these issues earlier in a different context. I may briefly add that Abolition of Zamindari Act does not affect the right of the plaintiffs to recover possession of lands which were placed in possession of the mortgagees (1956 Madh BLJ 1302, Rameshwar v. Bhogiram). Defendants Hanumantsingh and others did not acquire possession of the suit lands by virtue of the sale in favour of their father Daulat Singh because they had purchased only an equity of redemption as will appear from the judgment in Civil Suit No. 21/2001 filed on record. Entries as Pacca Krishak cannot affect the rights under the mortgage bond I find accordingly.Three appeals were presented in the District Court against the decree founded on this judgment, one of them being by the plaintiffs challenging refusal by the trial Court to grant mesne profits. In October, 1960 the plaintiffs appeal was partly allowed and mesne profits decreed from the date of deposit of the mortgage amount in Court. The other two appeals were dismissed. That Court disposed of all appeals by a common judgment and came to the conclusion that the lands had been mortgaged with possession by Samle Singh and Jomdar Singh with Munshi Singh and that they were under self-cultivation of the plaintiffs before the mortgage, the mortgagees having come into possession by reason of the mortgage. The matter was taken by the defendants to the High Court on second appeal, the plaintiffs having also preferred an appeal in that Court against the decree of the first appellate Court declining to give full relief claimed in regard to mesne profits.In the High Court also three appeals were presented. The High Court partially allowed the defendants appeal in view of the provisions of the Madhya Bharat Zamindari Abolition Act XIII of 1951. The plaintiffs were held entitled to redeem the mortgage by paying the mortgage money but disentitled to get possession of the mortgaged land. The proprietary rights including the right to get possession having vested in the State under the aforesaid Act the plaintiffs, according to the High Court, could only claim compensation from the Government on the basis of their proprietary rights after redeeming the mortgage by making payment of the mortgage money.In support of this view the High Court relied on this Courts decision in Haji Sk. Subhan v. Madho Rao (1962) Supp 1 SCR 123 = (AIR 1962 SC 1230  ), considering that decision to be decisive of the point in issue. That decision, however, appears to us to be directly concerned with the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (Madhya Pradesh Act 1 of 1951).

Reasoning:
The submission is not wholly correct. There was in fact an amendment of the plaint pursuant to the enactment of the Madhya Bharat Abolition of Zamindari Act (sic) and additional issues were framed on the amended pleadings. The parties and the Courts were thus not ignorant of the existence of the said Act on the statute book.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 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 there-of, 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 khud-kasht 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 khud-kasht and, therefore, in accordance with Section 4 they were entitled to remain in Possession thereIn our opinion the High Court was in error in allowing the appeal before it and in dismissing the plaintiff-appellants suit for possession on the authority of this Courts decision in the case of Haji S. K. Subhan (1962) Supp 1 SCR 123 - (AIR 1962 SC 1230  )the reported case the word "document" as occurring in Section 4 (1) of the M. P. Abolition of Proprietary Rights Act (M. P. Act 1 of 1951) was construed to include a decree of the Court and it was held that the principle that the executing Court cannot question the decree and has to execute it, had no operation on the facts of that case, because the objection was not based on the invalidity of the decree but on the effect of the aforesaid Act on the rights of the decree holder proprietor to retain possession. The facts of that case were, therefore, different and so was the problem requiring solution. The precise question requiring decision by the Court in the present case was lost sight of and not properly adverted to. We are required in the present case to consider the effect of Section 4 (I) (f) of the M. B. Act XIII of 1951 on the rights of the plaintiff-appellants to redeem the mortgage and secure possession of the mortgaged land.13. It may be pointed out that both the contesting parties - the appellants and the respondents - before us claim for themselves actual possession of the land in dispute as khud-kasht and also assert that the relevant entries in the annual village papers before the date of vesting showed them in such Possession. On this basis they both claim right to retain possession even against the State. These rival controversial claims pressed by both the parties was the central question involving proper appraisal of material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of the M. B. Act XIII of 1951 to the facts found. As the question of vesting of title in the State was also of vital importance it was, in our opinion, fit and proper for the Courts below to have issued notice to the State as well, thereby enabling it to be impleaded as a party if it so desired. The approach of the High Court is erroneous and its decision highly unsatisfactory. The controlling question seems to have been misse