Supreme Court of India
BUDHAversusAMILAL
- Citation
- 1990 INSC 397
- Decided
- 21 December 1990
- Disposal
- Appeal(s) allowed
- Bench
- KULDIP SINGH
Holding
Khatedari rights under the Act arise only when the land is khudkasht and actually possessed by the biswedar at the date of vesting; the appellant did not satisfy this condition and therefore could not sue for redemption.
Summary
The appellant, a former biswedar, sought redemption of two agricultural lands that had been mortgaged to the respondent. The lands were mortgaged before the Rajasthan Zamindari and Biswedari Abolition Act, 1959 came into force. The respondent contended that, under the Act, all rights in the lands vested in the State and that the appellant, not being in actual possession, could not claim khatedari rights in the lands. The trial court dismissed the suit, the Additional Civil Judge reversed on the ground that the appellant was recorded as a holder of khudkasht land, but the High Court restored the dismissal, holding the appellant had no such right. The Supreme Court held that for khatedari rights to arise under Section 29 of the Act, the land must be khudkasht and actually possessed by the biswedar at the date of vesting; a record of khudkasht or constructive possession through a mortgagee does not satisfy this requirement. Consequently, the appellant had no locus‑standi to sue for redemption and the appeal was dismissed.
Issues considered
- Whether the appellant, as a biswedar, acquired khatedari rights in the mortgaged lands under Section 29 of the Rajasthan Zamindari and Biswedari Abolition Act, 1959.
- Whether the lands in question qualify as 'khudkasht' within the meaning of Section 5(23) of the Rajasthan Tenancy Act, 1955.
- Whether the appellant had locus standi and the civil court jurisdiction to entertain a suit for redemption of the mortgages.
Legislation cited
- Rajasthan Tenancy Act, 1955s. 5(23), s. 5(25)
- Rajasthan Zamindari and Biswedari Abolition Act, 1959s. 2(6), s. 29(1), s. 29(2), s. 4(1), s. 5(2)(b), s. 5(4)
Subjects
KhudkashtKhatedari rightsRajasthan Zamindari and Biswedari Abolition Actmortgage redemptionbiswedarpossessioncivil jurisdictionland reform
Judgment
BUDHA
A
v.
AMILAL
DECEMBER 21, 1990
B [KULDIP SINGH AND S.C. AGRAWAL, JJ.]
Rajasthan Zamindari and Biswedari Abolition Act, 1959-
Section 29(1)-'Khudkashf-Whether Zamindar/Biswedar becomes
Malik-Lands vests in government.
C One piece of Agricultural land bearing khasra No. 711/531 was
mortgaged by way of usufructuary mortgage by one Kallu Ram in
favour of Sheo Ram, the father of the respondent, and another piece of
agricultural land, bearing kh. No. 390, was mortgaged by the appellant
and Kallu Ram together in the same manner In favour of Sheo Ram.
Kalin Ram and the appellant were biswedars In respect of those lands.
D Kallu Ram died and the appellant claimed that on the death of Kallu
Ram property devolved on him. The appellant flled a suit for redemp-
tion of aforesaid mortgages against Sheo Ram before the Munsif Magis-
trate, Kishangarh Bas. The defendant contested the suit and pleaded
that on the abolition of Biswedari, consequent on the coming into force
of the Rajasthan Zamindar and Biswedari Abolition Act, 1959, the
E rights, title and Interest in the lands in question stood transferred and
vested in the State of Rajasthan and the appellant did not have the right
to redeem the mortgage. It was also pleaded that on the date of the
creation of the mortgage, the appellant and Kallu Ram were not in
possession of the lands and the defendant was in possession of the lands
as kashtkar since before the mortgages. An objection to the jurisdiction
F of the civil court to entertain the suit was also raised. The trial magis-
trate dismissed the suit holding that in view of section 5(2)(b) of the
Act, the lands in question stood transferred to the State and have got
vested in the State and the appellant did not have any right to file the
suit in respect of the same. The appellant filed an appeal against the
said order which was allowed by the Additional Civil Judge. The Addi-
G tional Civil Judge, held that the name of the appellant appeared as
holder of Khodkasht in the annual register and that he had thus
acquired khatedari rights in respect of the lands in question and as such
he could maintain the snit for redemption of the mortgages. The matter
was thus remanded for trial. The defendant filed a second appeal in the
High Coon. The ffigh Court allowed the appeal and restored the judg-
H
656
BUDHA v. AMILAL 657
'•J/I\
ment and decree of the Munsiff dismissing the suit of the appellant. The
A
High Court held that the appellant did not raise the plea with regard to
the lands in question being his khudkasht lands in the pleadings and any
evidence in support of the same could not he thus looked into. It further
took the view that the appellant himself had pleaded that since the
execution of the mortgage deeds, the possession of the lands remained
with the defendant and that clearly showed that the appellant was not in B
possession of the lands after the execution of the mortgage deeds and
therefore the right of the appellant in the lands in dispute stood
abolished after the coming into force of the Act.
Hence this appeal by the appellant.
Dismissing the appeal, this Court c
HELD: Literally speaking the word 'khudkasht' means personal
cultivation. The definition of this expression contained in Section 5(23)
of the Rajasthan Tenancy Act, which is in two parts, indicates that it
bas been~ in the same sence in the Act. In the main part Khudkasht D
has been defined to mean land cultivated personally by an estate-
holder. This is further clarified by clause (25) of Section 5 of the
Rajasthan Tenancy Act which def'mes the expression 'land cultivated
personally' to mean land cultivated on one's own account (i) by one's
own labour, or (ii) by the labour of any member of one's family, or (iii)
under the personal supervision of oneself or any member of one's family E
by hired labour or by servants on wages payable in cash or in kind but
not by way ofa share in crops. [6{i4C-D]
The expression 'Khudkasht' as def'med in Section 5(23) of the
Rajasthan Tenancy Act, would, not include land .in possession of and
cultivated by a tenant or mortgagee. [6(i4G] F
In the Instant case, the appellant has come forward with a specific
case in the plaint that the defendant is in possession of the lands in
dispute as a mortgagee from the date of the two mortgagees. In other
words the appellant was not in possession/occupation of the said lands
on the date of westing of the estate of the appellant under the Act. The G
appellant cannot, therefore, claim Khatedari rights in respect of the
,.
lands in dispute. [667B-C]
Gurucharan Singh v. Kam/a Singh and Others, [1976] 1 SCR 739;
Ramesh Bejoy Sharma and Ors. v. Pashupati Rai and Ors. [1980] 1
SCR 6; P. Lakshmi Reddy v. L. Lakshmi Reddy, [1957] SCR 195 at H
658 SUPREME COURT REPORTS ] 1990] Supp. 3 S.C.R.
A 202; Bhubaneshwar Prasad Narain Singh and Ors. v. Sidheshwar
Mukherjee and Ors., [1971] 3 SCR 639; Kai/ash Rai v. Jai Jai Rain,
[1973] 3 SCR 411, referred to.
Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva
and Others, [1959] Supp. 1 SCR 968; Harihar Prasad Singh and
B Anotherv. Must. of Munshi Nath Prasad and Others, [1959] SCR 1, not
applicable.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1141
of 1987.
C From the Judgment and Order dated 15.4.1986 of the Rajasthan
High Court in S. R. -Civil Misc. Appeal No. 99 of 1973.
U.N. Bachavat and S.K. Jain for the Appellant.
Brij Bans Kishore and H.M. Singh for the Respondent.
D
The Judgment of the Court was delivered by
S.C. AGRA WAL, J. This appeal by special leave relates to
agricultural lands bearing Khasra Nos. 711/531 and _390 situJ1te in
village Jat Bhagola in Rajasthan. Lands measuring 3 bighas and 15
E biswas bearing Khasra No. 711/531 were mortgaged by way of usufruc-
tuary mortgage with Sheo Ram, the father of the respondent, under
mortgage deed dated November 19, 1952 executed by Kallu Ram.
Lands measuring 1 bigha and 10 biswas bearing Khasra No. 390 were
mortgaged by way of usufructuary mortgage with the said Sheo Ram
under mortgage deed dated April 26, 1955, by Kallu Ram and the
F appellant. The appellant and Kallu Ram were Biswedars in respect of
those lands. The case of the appellant is that on the death of Kallu
Ram his property devolved on the appellant. On February 12, 1959,
the Rajasthan State Legislature enacted the Rajasthan Zamindari and
Biswedari Abolition Act, 1959, hereinafter referred to as the 'Act',
which came into force on November 1, 1959. In exercise of the power
G conferred by sub-section (1) of Section 4 of the Act, the Government
of Rajasthan issued a notification dated November 3, 1959 whereby
the State Government appointed November 15, 1959 as the date for
abolition and acquisition of all settled Zamindari and Biswedari
estates throughout Rajasthan and vesting of such estates in the State
Government. Under sub-section (I) of Section 29 of the Act, as from
H the date of vesting of an estate the Zamindar or Biswedar thereof
BUDHA v. AMILAL'IAGRAWAL, J.] 659
become a malik of any Khudkasht land in his occupation on such date A
and as such malik he became entitled to all the rights conferred and all
the liabilities imposed on a Khatedar tenant by or under the Rajasthan
Tenancy Act, 1955. On February 27, 1970 the appellant filed a suit for
redemption of the aforesaid mortgages against Sheo Ram in the Court
of Munsif Magistrate, Kishangarh Bas. The defendant contested the
suit and pleaded that on the abolition of Biswedari, the right' title and B
interest in the lands in question stood transferred and vested in the
State of Rajasthan and the appellant did not have the right to redeem
the mortgage. It was also pleaded that on the date of the creation on
mortgage the appellant and Kallu Ram were not in possession of the
lands and that the defendant was in possession of the lands as Kashtkar
since before the mortgages. An objection to the jurisdiction of the
Civil Court to entertain the suit was also raised by the defendant. On
c
the basis of the pleadings the Munsif framed 7 issues. Issues 1, 6 and 7,
which are relevant for the purpose of the present appeal, were:
(1) Whether the defendant was ploughing the fields as 'Khud-
kasht' even 5 years earlier than the mortgage deeds and was in D
possession of the same as 'Kashtkar'? If so, what is its effect?
(6) Whether this Court had no jurisdiction to try the suit?
(7) Whether on account of coming into force of the provisions of
Rajasthan Zamindari and Biswedari Abolition Act, 1959 all E
rights, title and interest of the plaintitf are extinguished and the
same vested in the State of Rajasthan and, therefore, he had no
right to file this suit for redemption of mortgage deeds?
The Munsif treated Issue No. 7 as a preliminary issue and, by
order dated April 12, 1972, he decided the said issue against the appel- F
0
Iant and held that in view of Section 5(2) (b) of the Act, the lands stand
transferred to the State and have got vested in the State and the appel-
lant does not have any right to file the suit in respect of the same. In
view of the said finding on Issue No. 7 the Munsif dismissed the suit of
the appellant. The appellant filed an appeal against the said judgment
and decree of the Munsif which was allowed by the Additional Civil G
Judge by order dated February 27, 1973. It was submitted by the
appellant that he had acquired Khatedari rights in the lands at the time
,
of the abolition of the Biswedari under the .Act since the lands in
question were Khudkasht lands of the appellant and, thtlr~fore, the
appellant is entitled to maintain the suit for redemption and posses-
sion. The Additional Civil Judge held that the name of the appellant H
I
660 SUPREME COURT REPORTS 11990] Supp. 3 S.C.R.
A appeared as holder of Khudkasht in the annual register and that he has
acquired Khatedari rights in respect of the lands in question and he
could maintain the suit for redemption of the mortgages. The Addi-
tional Civil Judge, therefore, set aside the judgment and decree of the
trial court and remanded the matter for trial and while doing so
observed that the question of jurisdiction of the Civil Court to enter-
B tain the suit could be agitated as a preliminary issue. The defendant
filed a second appeal in the High Court which was allowed by judg-
ment and decree dated April 15, 1986. The High Court held that the
appellant clid not raise the plea with regard to~ the lands in question
being his Khudkasht lands in the pleadings and any evidence in sup-
port of the same could not be looked into. The High Court further held
C that in paragraphs 1 and 2 of the plaint the appellant has himself
pleaded that since the execution of the mortgage deeds, the possession
of the lands is with the defendant which clearly shows that the appel-
lant was not in possession of the lands after the execution of the mort-
gage deeds and therefore the right of the appellant in the lands in
dispute stood abolished after the coming into force of the Act and the
D appellant has no locus-standi to bring the suit for redemption and
possession of the mortgaged lands. The High Court, therefore,
restored the judgment and decree of the Munsif dismissing the suit of
the appellant. Feeling aggrieved by the said decision of the High
Court, the appellant has filed this appeal.
E Shri Bachawat, the learned counsel for the appellant, has urged
that the High Court was in error in holding that the appellant has no
subsisting right in the lands in dispute after the coming into force of the
Act. The learned counsel has submitted that in the Jamabandies of
Samvat Years 2013 and 2019 the appellant is shown as Kashtkar of the
lands in question and that the said lands were Khudkasht lands of the
F appellant in view of the definition of the expression "Khudkasht"
contained in Section 5(23) of the Rajasthan Tenancy Act, 1955, which
definition is applicable to the Act by virtue of Section 2(6) of the Act.
Shri Bachawat has contended that under Section 29(1) of the Act the
appellant has acquired Khatedari rights over the said lands which were
recorded as his Khudkasht lands. The further submission of Shri
G Bachawat is that for the purpose of the lands being Khudkasht lands it
is not necessary that the appellant should have been in actual posses-
sion of the same and that such possession could also be constructive
possession through the mortgagee. Shri Bachawat has placed reliance
on the decisions of this Court in Gummalapura Taggina Matada
·t
Kotturuswami v. Setra Veeravva and Others, [1959] Supp. 1 S.C.R.
H 968; Harihar Prasad Singh and Another v. Must. of Munshi Nath
BUDHA v. AMILAL [AGRAWAL, J.] 661
.,..._
Prasad and Others, [ 1956] S.C.R. 1 and Kai/ash Rai v .. Jai Jai Ram and
A
Others, [1973] 3 S.C.R. 411.
Shri Brij Bans Kishore, the learned counsel appearing for the
respondent has placed reliance on the admission of the appellant as
contained in the plaint that the lands are in possession of the mort-
gagees and has urged that the said lands cannot be said to be B
Khudkasht lands of the appellant and the appellant could not acquire
Khatedari rights over the same.
With regard to lands bearing Khasra No. 390, in para 1 of the
plaint the appellant has expressly stated that defendant is in possession
of the said lands as mortgagee from April 26, 1955. Similarly with
reference to lands bearing Khasra No. 611l531, it has been stated in c
para 2 of the plaint foat the defendant is in possession of the said lands
as mortgagee from December 19, 1952. This means that the case of the
appellant, as set out in the plaint, is that on the date of institution of
the suit the actual possession of the lands in dispute was with the
defendant as mortgagee. The suit was instituted on February 27, 1970, D
i.e. after the coming into force of the Act. The appellant has not
pleaded in the plaint that the lands were his Khudkasht lands on the
date of vesting under the Act and he has acquired Khatedari rithts over
the same under the Act. The appellant agitated this question before
the lower appellate court and since the said plea of the appellant was
accepted by that court we have heard learned counsel for the appellant E
in support of this plea.
The question which, therefore, requires consideration is whether
on the date of vesting of his Biswedari estate under the Act the appel-
Iant acquired Khatedari rights over the lands in dispute on the basis
that the same were his Khudkasht lands although _h_e was not in actual F
possession of the same on the said date. For this purpose it would be
necessary to examine the relevant provisions of the Act. As indicated
earlier the expression 'Khudkasht' has not been defined in the Act and
in view of the sub-section (6) of Section 2 of the Act. the definition of
the said expression contained in the Rajasthan Tenancy Act is applic-
able to the Act. The expression of 'Khudkasht' has been thus defined G
in clause (23) of Section 5 of the Rajasthan Tenancy Act:
,, "Khudkasht" shall mean land in any part of the State
cultivated personally by an estate-holder and shall include-
(i) land recorded as Khudkasht, sir, havala, niji,jot, H
662 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
gharkhed in settlement records at the commencement
A
of this Act in accordance with law in force at the time
when such record was made, and
(ii) land allotted after such commencement as Khud-
kasht under any law for the time being in force in any
B part of the State."
The expression "land cultivated personally" is defined in clause
(25) of the Rajasthan Tenancy Act in the following terms:
"land cultivated personally", with all its grammatical varia-
tions and cognate expressions, shall mean land cultivated
c on one's own account-
(i) by one's own labour, or
(ii) by the labourof any member ofone's family, or
D
(iii) under the personal supervision of oneself or any
member of one's family by hired labour or by servants
on wages payable in cash or in kind but not by way of
a share in crops:
E Provided that in the case of a person who is a widow or a
minor or is subject to any physical or mental disability or is
a member of the military, naval or air service of India or
who, being a student of an educational institution recog-
nised by the State Government is below the age of twenty-
five years, land shall be deemed to be cultivated personally
F even in the absence of such personal supervision."
Section 5 of the Act provides for the consequences of abolition of
Zamindari and Biswedari estates under the Act. Section 5 inter-a/ia
lays down:
G "(2) As from the date of vesting of any Zamindari or
Biswed11ri estate in the State Government, notwithstanding
anything contained in any contract, grant or other docu-
ment or in any law for time being in force but save as
otherwise provided in this Act-
H (a) such estate shall stand transferred to, and vest in, the
BUDHA v. AMILAL {AGRAWAL, J.J 663
State Government free from all encumbrances;
A
(b) the right, title and interest of the Zamindar or Biswe-
dar, and of every person claiming through him, in such
estate, including land (cultivable, waste or barren), grove
land, grass land or bits, scrub jungle, forests, trees,
fisheries, hills, wells, tanks, ponds, water courses and chan- B
nels, ferries, pathways, village sites, abadi sites, hats,
bazars, melas and mela grounds, and in all sub-soil therein,
including rights, if any, in ouarries and mines, whether
being worked or not and in all minerals and mineral pro-
ducts, shall cease and be vested in the State Government,
free from all encumbrances, for the purposes of the State,
and every mortgage, debt or charge on any such right, title c
or interest shall be a charge on the amount of compensation
payable to the Zamindari or Biswedar under this Act;
x x x x x x x x
D
(j) every mortgage with possession existing on such estate
or part thereof 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 this section, to have
been substituted by a simple mortgage. E
x x x x x x x x
(4) Notwithstanding anything contained in sub-section (2)
the Zamindar or Biswedar shall, subject to the provisions
of Section 29, continue to retain the possession of his F
Khudkasht, recorded as such in the annual registers before
the date of vesting."
Section 29 of the Act makes provision for conferring Khatedari
rights in Khudkasht lands and it reads as under:
G
"Khatedari rights in Khudkasht land-
,. (1) As from the date of vesting of an estate, the Zamindar
or Biswedar thereof shall be a malik of any Khudkasht land
in his occupation on such date and shall, as such malik, be
entitled to all the rights conferred and be subject to all the H
664 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.
liabilities imposed on a khatedari tenant by or und~r the
A
Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955).
(2) If there are more persons than one ·having interest in
land held as khudkasht immediately before the date of
vesting, all such persons shall be deemed to be (co-malik
B thereof)."
Literally speaking the word "Khudkasht" means personal culti-
vation. The definition of this expression contained in Section 5(23) of
the Rajasthan Tenancy Act, which is in two parts, indicates that it has
been used in the same sence in the Act. In the main part Khudkasht
has been defined to mean land cultivated personally by an estate-
C holder. This is further clarified by clause (25) of Section 5 of the
Rajasthan Tenancy Act which defines the expression "land cultivated
personally" to mean land cultivated on one's own account (i) by one's
own labour, or (ii) by the labour of any member ofone's family, or (iii)
under the personal supervision of oneself or any memper of one's
D family by hired labour or by servants on wages payabliOiJi,cash or in
kind but not by way of a share in crops. An exceptio.n has·b~_"'1 made in
the proviso in respect of widows, minors, persons subject t9 physical
or mental disability, members of military, air or naval service· of India
and students of an educational institution recognised by'the State
Government who are below the age of twenty-five years and their land
E is to be deemed to be cultivated personally even in the absence of such
personal supervision. By the inclusive part of the defintion of
"Khudkasht" contained in Section 5(23) of the Rajasthan Tenancy
Act lands which are recorded as Khudkasht, sir, havala, niji-jot,
gharkhed in settlement records at the commencement of this Act in
accordance with law in force at the time when such record was made
F and lands allotted after such commencement as Khudkasht under any
law for the time being in force in any part of the State, are to be treated
as Khudkasht. Here also the emphasis is on personal cultivation which
is to be inferred from the entry in the settlement records at the com-
mencement of the Ra jasthan Tenancy Act or the purpose for which
the land was allotted after the commencement of the Act. The expres-
Q sion "Khudkasht", as defined in Section 5(23) of the Rajasthan
Tenancy Act, would, in our opinion, not include land in possession of
and cultivated by a tenant or mortgagee.
Such a question has been considered by this Court in the context
of the Bihar Land Reforms Act, 1950 which uses the expression "Khas
H possession" and preserves in the hands of the proprietors such lands as
BUDHA v. AMILAL [AGRAWAL, J.) 665
are in their khas possession. In Section 2(k) of the said Act the expres-
A
sion "Khas possession" has been defined to mean possession of the
proprietor or tenure-holder by cultivating the land or carrying on
horticultural operations thereon himself with his own stock or by his
own servants or by hired labour or with hired stock. In Gurucharan
Singh v. Kam/a Singh and Others, [1976] 1 S.C.R. 739 this Court has
observed: B
" ......... what is meant is actual possession with one's
feet on the land, plough in the field and hands in the soil,
although hired labour is also contemplated." (P. 745)
;
"Ordinarily what is outstanding with lessees and mortga- C
gees may not fall within khas possession". (P. 752)
In Ramesh Bejoy Sharma and Ors. v. Pashupati Rai and Ors.,
[ 1980] 1 S.C.R. 6 it has been held that land in possession of a tenant-
at-will cannot be said to be in khas possession of the intermediary on
.the ground that a tenant-at-will is not holding possession on behalf of D
the landlord but he has a vestige of title to it and holds on his own
behalf and can set up his possession against the landlord till the forma-
lity prescribed by law is undertaken by the landlord and he is evicted. The
possession of a co-sharer in the lands, however, stands on a different
footing because, in the absence of ouster, the possession of one co-heir
is considered in law, as possession of all the co-heirs. (See: P. Lakshmi E
Reddy v. L. Lakshmi Reddy, [1957] S.C.R. 195 at P. 202. In
Bhubaneshwar Prasad Narain Singh & Others v. Sidheswar Mukherjee
& Others, [1971] 3 S.C.R. 639 this Court has held that a co-sharer has
to be treated in khas possession of land in possession of the other
co-sharer. To the same effect is the decision in Kai/ash Rai v. Jai Jai
Ram (supra). In that case this Court was dealing with the provisions of F
the U.P. Zamindari Abolition and Land Reforms Act, 1950 and it was
held that the possession of one co-sharer is possession both on his
behalf as well as on behalf of all the other co-sharers unless ouster is
pleaded and established.
On behalf of the appellant it is claimed that the present case falls G
under clause (i) of the inclusive part of the definition of 'Khudkasht'
contained in Section 5(23) of the Rajasthan Tenancy Act because in
,. the Jamabandies of Samvat Years 2013 and 2019 the appellant is
recorded as 'Kashtkar' against the suit lands. In our view the said entry
cannot be treated as an entry or 'Khudkasht' envisaged in that clause
of the definition especially when it is not the case of the appellant that H
666 SUPREME COURT REPORTS [ 1990) Supp. 3 S.C.R.
after the execution of the mortgages the defendant mortgagee had
A
parted with the possession of the mortgaged property in favour of the
appellant and had allowed the appellant to cultivate the said lands. On
the other hand there is a clear admission by the appellant in the plaint
that defendant mortgagee is in possession of the mortgaged property.
In these circumstances the lands in question cannot be held to be the
B Khudkasht lands of the appellant.
Even if it is assumed that the lands in dispute have to be treated
as Khudkasht lands of the appellant by virtue of clause (i) of the
inclusive part of the definition of 'Khudkasht' contained in Section
5(23) of the Rajasthan Tenancy Act, the appellant cannot succeed in
his claim that he has acquired Khatedari rights in respect of those lands
C on the basis of the provisions contained in sub-section (4) of Section 5
and sub-section (1) of Section 29 of the Act. Sub-section (4) of Section
5 provides that notwithstanding anything contained in sub-section (2)
of Section 5 the Zamindar or Biswedar shall subject to the provisions
of Section 29, -continue to retain the possession of his Khudkasht,
D recorded as such in the annual registers before the date of vesting. The
words "continue to retain the possession", imply that lands which are
recorded as Khudkasht in the annual register before the date of vesting
should also be in possession of the Zamindar or Biswedar on the date
of vesting and if he is in possession of such lands he can continue to
retain the possession of the same subject to the provisions of Section
E 29. Sub-section (1) of Section 29 prescribes that as from the date of
vesting of an estate, the Zamindar or Biswedar thereof shall be a malik
of any Khudhasht land in his occupation on such date and shall, as such
malik, be entitled to all the rights conferred and the subject to all the
liabilities imposed on a Khatedar tenant by or under the Ra jasthan
Tenancy Act. Under this provision Khatedari rights have been confer-
F red on a Zamindar or Biswedar as from the date of the vesting of the
estate in respect of Khudkasht lands in the occupation of such
Zamindar or Biswedar on such date. The words "in his occupation of
sucli date" postulates that the lands, though Khudkasht, should be in
the occupation of the Zamindar or Biswedar on the date of vesting of
the estate. It would thus appear that in view of sub-section (4) of
G Section 5 and sub-section ( 1) of Section 29 of the Act the mere fact of
recording of the land as Khudkasht in the settlement records on the
date of vesting would not be enough for a Zamindar or Biswedar to
acquire Khatedari rights over the said lands and it is further required
that the Zamindar or Biswedar should be in possession/occupation of
the said lands on the date of vesting of the estate under the Act. The
H possession/occupation envisaged by sub-section (4) of Section 5 and
BUDHA v. AMILAL !AGRAWAL, J.] 667
sub-section (1) of Section 29 of the Act is actual possession/occupation A
and the possession of a mortgagor through the mortgagee cannot be
held to be possession or occupation as postulated in sub-section (4) of
Section 5 and sub,section ( 1) of Section 29 of the Act.
In the present case the appellant has come forward with a B
specific case in the plaint that the defendant is in possession of the
lands in dispute as a mortgagee from the date of the two mortgagees.
In other words the appellant was not in possession/occupation of the
said lands on the date of vesting of the estate of the appellant under
the Act. The appellant cannot, therefore, claim Khatedari rights in
respect of the lands in dispute.
c
In Kotturuswami v. Veeravva (supra) this Court, while constru-
ing the provisions of Section 14(1) of the Hindu Succession Act, 1956,
has held that the expression "property possessed by a female Hindu"
is not confined to actual physical possession or occupation but would
include constructive possession also, viz., possession of a licensee,
0
lessee or a mortgagee. Keeping in view the context of the provisions of
the Act and the object underlying the ·said provisions whereby
.Khatedari rights have been conferred on the Zamindar or Biswedar in
respect of his Khudkasht lands, we are of the opinion that the decision
in Kotturuswami v. Veeravva (supra) can have no application.
E
In Harihar Prasad Singh and Ano_ther v. Must of Muf!shi Nath
Prasad and Others (supra) the question for consideration was whether
the tenants of the mortgagee could claim occupancy rights in the mort-
gaged property. The said decision has no application to the present
case.
F
For the reasons aforesaid the suit filed by the appellant must fail.
The appeal is, therefore, dismissed with costs.
Y.Lal Appeal dismissed.
r-
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