Supreme Court of India
THAKUR PRASAD (DEAD) THROUGH LRS.versusRAJ KARAN (DEAD) BY LRS. AND ORS.
- Citation
- 2003 INSC 143
- Decided
- 4 March 2003
- Disposal
- Appeal(s) allowed
- Bench
- S S M QUADRI
Holding
Mortgagees are not entitled to any right under the Agra Tenancy Act or the Zamindari Abolition Act; the mortgagors, as bhumidars, may evict the mortgagees, who as asamis can retain possession only of the one‑sixth share they purchased.
Summary
The case concerned a suit land in the former Banaras State that had been granted rent‑free (Krishnarpan) and later mortgaged by the mortgagors, who subsequently sold one‑sixth of the land to the mortgagees and the rest to other purchasers. After the Uttar Pradesh Zamindari Abolition and Land Reforms Act was applied to the area by the 1953 and 1954 notifications, the parties disputed whether the mortgagors had become bhumidars under Section 130 and the mortgagees asamis under Section 133, and whether the mortgagees could retain possession after the mortgagors deposited the mortgage money. The mortgagees argued that Section 158 of the Agra Tenancy Act gave the mortgagors ownership, that Section 14 of the Zamindari Act was inapplicable, and that they were entitled to remain in possession as hereditary tenants. The Court held that the 1954 notification deleted Sections 4‑112, rendering Section 14 inapplicable, and that the mortgagors, as bhumidars, could evict the mortgagees, who were asamis, upon deposit of the mortgage money, and that the mortgagees could retain possession only of the one‑sixth share they had purchased. Consequently, the appeals of the mortgagees (Civil Appeals 865‑867) were dismissed, while the appeal of Raj Karan (Civil Appeal 868) was allowed, directing eviction of the mortgagees from the remaining land.
Issues considered
- The applicability of the 1953 versus 1954 notifications of the Zamindari Abolition Act to the suit land.
- Whether the mortgagors became bhumidars under Section 130 of the Zamindari Act.
- Whether the mortgagees became asamis under Section 133 and thus liable to eviction.
- Whether Section 14 of the Zamindari Act applied to the land after the 1954 notification.
- Whether Section 158 of the Agra Tenancy Act conferred ownership on the mortgagors.
- Whether the mortgagees' possession became adverse to that of the mortgagors.
Legislation cited
- Transfer of Property Act, 1882s. 58
- U.P. Consolidation of Holdings Acts. 9
- U.P. Zamindari Abolition and Land Reforms Act, 1951s. 130, s. 133, s. 14, s. 2, s. 200(c), s. 209, s. 210, s. 4
Subjects
mortgagebhumidarasamiZamindari Abolition ActAgra Tenancy ActevictionSection 14Section 130Section 133land reformconsolidation
Judgment
THAKUR PRASAD (DEAD) THROUGH LRS. A
v.
RAJ KARAN (DEAD) BY LRS. AND ORS.
MARCH 4, 2003
[SYED SHAH MOHAMMED QUADRI AND ARIJIT PASAYAT, JJ.] B
U.P. Zamindari Abolition and Land Reforms Act, 1951-Sections 2, 4,
14, 130, 133, 200(c), 209 and 210.
Mortguge of suit land-By rent-free grantee of the land-Thereafter the C
land sold-Zamindari Abolition Act made applicable to the land by
Notifications-Effect on the rights of mortgagors and mortgagees-Suit for
eviction of mortgagee-Eviction denied by trial court-Appellate court allowed
the eviction-Order of trial court restored in review-In writ petition High
Court allowed the eviction-On appeal-Held, mortgagees are liable to be D
evicted-Rights of mortgagors under Zamindari Abolition Act did not come to
an end by virtue of Section 158 of Agra Act in absence of any finding with
regard to faljillment of the requirements necessary to be covered under the
Section-Mortgagees not entitled to claim any right either under Agra Tenancy
Act or under Zamindari Abolition Act-Possession of mortgagees cannot be
said to be adverse to that of the mortgagor-In view of Sections I 30 and 133 E
of Zamindari Abolition Act, a rentfree grantee/mortgagors became bhumidar
and the mortgagee from a bhumidar became asami-Hence as bhumidars,
mortgagors entitled to seek eviction of the mortgagees (asamis) on depositing
the mortgage money under Section 200(c)of the Zamindari Abolition Act-
Transfer of Property Act, I 882-Section 58-Agra Tenancy Act, Section I 58.
F
The village in which the suit land was situated, formed part of
erstwhile Banaras State before its merger in the State of U.P. The
Maharaja purchased the interest of sub-proprietor of the suit land subject
to rent free grant of the suit land as "Krishnarpan" in favour of the
predecessor of respondent Nos. 5 to 10. The village was a Namanzuri G
village (i.e. with regard to the village no grant was made by the Maharaja)
and the same was treated as such from yearl320 F.
By a Notification of 1953, U.P. Zamindari Abolition Act, 1951 was
made applicable to the former Banaras State as defined in Banaras State
591 H
592 SUPREME COURT REPORTS [2003) 2 S.C.R.
A (Administration) Act, 1949 subject to the modifications and am·endments
specified in Schedule to the Notification. Thus after the application of the
Act, it was left to the State Government to extend the Act to the area under
Section 2(1)(b) of the Act which enumerates any estates or parts thereof
owned by the Central Government, State Government or any local
authority. By Notification of 1954, the Act was made applicable to the
B former Banaras State subject to modifications and amendments specified
in the Schedule thereto in the case of estates owned by the State
Government and in which no intermediary had any interest on June 30,
1953.
C Respondent Nos. 5 to I 0, executed usufructuary mortgage in favour
of appellant-mortgagees. The respondent-mortgagors sold the land in
different bits i.e. 1/6th 1share was sold to the mortgagees. The rest of the
land was sold to other purchasers, and one of them had filed a suit for
ejectment of the appellant-mortgagees by depositing the mortgaged money.
The case was tried under Section 9 of U.P. Consolidation of Holdings Act
D by the ConsolidP.tion Officer and he dismissed the suit. 011 appeal,
Settlement Officer decreed the suit. Revision before the Deputy Director
of Consolidation by the mortgagees, was allowed restoring the order of
the Consolidation Officer. The writ petition filed against the same was
allowed by High Court.
E In appeal to this Court, appellant-mortgagees contended that 1953
Notification was directly applicable, because the suit land was not a State
land as the land had been given in Krishnarpan by the proprietor
intermediary and not by the Maharaja; that the respondents-mortgagors
continued in possession of land for more than fifty years and thus had
p become owners under Section 158 of North West Provinces Tenancy Act,
1901 (Agra Tenancy Act), and their right under Zamindari Abolition Act
came to an end and thus they were entitled to recover the amount as a
simple mortgage; that they could have been ejected only by Gaon Sabha
under Section 209 of Zamindari Abolition Act and since no suit was
brought by Gaon Sabha, the mortgagees became 'Sirdar' or 'Asami' and
G would be deemed to be tenant from year to year; that mortgagors not·
having acquired right .,f ownership/bhumidar under Section ll4(2)(a) of
Zamindari Abolition Act had no right to bring suit for eviction; that even
assuming that mortgagors had become bhumidar they could not: evict the
mortgagees after limitation of three years as they perfected their title by
H adverse possession.
--\ THAKUR PRASAD"· RAJ KARAN 593
Mortgagor-respondents contended that in the Namanzuri village, the A
mortgagors could not claim any right under Section 158 of Agra Act; that
by 1954 Notification Zamindari Abolition Act was applied to the suit land;
that the mortgagors were bhumidars under Section 130 and under Section
133 of Zamindari Abolition Act and the mortgagees became Asamis and hence
the suit for ejectment of the mortgagees was required to be decreed, and that
the position of the mortgagors as bhumidar, was accepted even in the sale
B
deed obtained by mortgagees and that tht purchasers of the suit land were
given possession of the land by the Consolidation Officer accepting them as
bhumidars and the mortgagees' possession was confined only to I/6th share,
which they had purchased.
Allowing the appeal, the Court
c
HELD: 1 Mortgagees are not entitled. to claim any right either under
Agra Tenancy Act or under Zamindari Abolition Act, 1951. As the mortgage
money had been deposited by the mortgagors, the mortgagees had no right
to continue in the possession of the mortgaged land. Having purchased one D
sixth share of the mortgagors, the mortgagees are entitled to remain in
possession of only one sixth share of the land. [607-D)
2. The village where the suit land was situated was an estate owned by
the State Government in which no intermediary had any interest on June 30,
1953. It cannot be said that the suit land was not of the State Government as E
it had been given in Krishnarpan by the proprietor intermediary and not by
the Maharaja, and therefore 1953 Notification would directly apply.
Zamindari Abolition Act was made applicable to the former Banaras State
by the 1953 Notification duly retaining Section 2 (1) (b) and (c); and as the
State was the sole proprietor of all the villages comprised in the erstwhile
F
Banaras State, Zamindari Abolition Act was extended to estates or parts
thereof owned by the State Government or any local authority by the 1954
NotiflClltion. After the purchase of interest of the sub-proprietor by Maharaja
of Banaras, subject to the rent-free grant of the suit land as "Krishnarpan"
in favour of the predecessor of the respondents, the village became a
Namanzuri village and was treated as such from 1320 F. After merger of G
Banaras State in the State of U.P., the village was an estate owned by the
State qovernment with no intermediary. In the result though on application
of Zamindari Abolition Act to the former Banaras State by the 1953
NotiflClltion, the provisions of Chapters Ilto VI [Sections 4 to 112) were
- applicable, yet when by the 1954 Notification the Zamindari Abolition Act
H
594 SUPREME COURT REPORTS (2003) 2 S.C.R.
A was extended to estates owned by the Central Government, State Government
or local authority, the said provisions !Sections 4 to 112( were deleted in the
application of the Act. (602-H; 603-A-Df
3. To invoke s~ction 158 of Agra Tenancy Act, following conditions must
be satisfied: (1) the land shall not be resumable under Section 154; (2) the
B land should have been held rent-free for fifty years and by two successors to
the original grantee; and (3) the land should have been acquired in perpetuity
in consideration of the loss or surrender of a right previously vested in the
grantee or by a written instrument and for valuable consideration. Having
regard to above requirements of Section 158 of the Agra Tenancy Act, in the
absence of any finding with regard to those requirements, it cannot be said
C that the mortgagors have become proprietors of the suit land under Section
158 of the Agra .\ct. (604-A-C]
Ba/want and Ors. v. The Deputy Director of Consolidation and Ors.,
AIR (1975) Allahabad 295, referred to.
D 4. It cannot be said that the possession of the mortgagees became adverse
to that of the mortgagors. The suit land was neither sir nor khudkasht of the
mortgagors on the date of the mortgage in question as it was in possession of
some other mortgagees. Mortgagors could not be said to have acquired
Bhumidari rights under Section 14(2)(a) of Zamindari Abolition Act.
E Mortgagees also failed to avail of the benefit of Section 14 off Zamindari
Abolition Act as they did not deposit with the State Government an amount
equal to five times the rent within six months from the .date of vesting.
Consequently, the mortgagees who acquired no right under Section 14(2) read
with Section 19 became liable to be evicted either by the Gaon Sabha or by
the Collector under Section 209 of Zamindari Abolition Act. (605-E-Ff
F
5. In view of Sections 130 and 133 of Zamindari Abolition Act, a rent-
free grantee became bhumidar under Section 130 (a) (i) and a mortgagee from
a bhumidar became asami under Section 133 (a) (ii) of Zamindari Abolition
Act. Thus, in the present ease, the mortgagors became bhumidars and the
mortgagees became asamis. The title of the mortgagors as bhumidars was
G also accepted by the mortgagees when they purchased one sixth share in the
suit land from the mortgagors. Hence, the mortgagors (bhumidars) were
entitled to seek eviction of the mortgagees (asamis) on depositing the mortgage
money under Section 200(c) of the Zamindari Abolition Act. [607-A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 865 of 1984.
H
THAKUR PRASAD v. RAJ KARAN [SYED SHAH MOHAMMED QUADRI, J.] 595
From the Judgment and Order dated 7.12.170 of the Allahabad High A
Court in S.A. No. I 004 of 1970.
WITH
C.A Nos. 866-868 of 1984.
B
V.K.S. Chaudhary, E.C. Agrawal, H.P. Pandey, Dhanajay Prasad, A.D.
Prakash, Mahesh Agarwal, Rishi Agrawal, Alok Agarwal, Manu Krishnan,
"""' Vivek Yadav, S.S. Khanduja, B.K. Satija, (NP) and A.S. Pundir, for the
appearing parties.
The Judgment of the Court was delivered by c
SYED SHAH MOHAMMED QUADRI, J. T!i.ese appeals from various
judgments and orders of the High Court of Judicature at Allahabad arise out
of the same factual matrix and raise a common question of Jaw viz., how are
the rights of the mortgagors and the mortgagees of the suit land affected by
the provisions of the U.P. Zamindari Abolition and Land Reforms Act? D
The search for the answer to the question takes us back a century and
a quarter and ob!~es us to examine the nature of the tenure under different
Acts. The undisputed facts giving rise to the above question lie in a narrow
compass. The object of controversy is certain plots of land in village Chaura
Kalan, Taluka.Konrh, Pargana Bhadohi, District Varanasi of the State ofU.P. E
(hereinafter referred to in this judgment as, 'the suit land'). In 1923 one Ram
Nath Singh, who was said to be sub-proprietor, granted the suit land as
'Krishnarpan' to one Prayag Dutt Tiwari who passed away in 1947 leaving
behind him his L.Rs. Respondent Nos.5 to I 0, who (hereinafter referred to
as 'the mortgagors') executed usufructuary mortgage in favour of Thakur F
Prasad and Shitla Prasad (Appellants in Civil Appeal Nos.865-866 of 1984
- hereinafter referred to as 'the mortgagees') on November 3, 1947. The
mortgagors sold the suit land in different bits. They sold I/6th share in favour
of the mortgagees and I/6th share to Jadunath (respondent in Civil Appeal
No.866 of 1984). The remaining 2/3rd share in the suit land was sold under
two sale deeds in favour of Raj Karan (appellant in Civil Appeal No.868 of G
- -t
1984). On October 7, 1960, Raj Karan, who had entered into shoes of the
mortgagors (hereinafter referred to as such in this judgment) filed the suit,
out of which these appeals arose, for ejectrnent of Thakur Prasad and Shitla
Prasad (mortgagees) by depositing the mortgage money. The suit could not
proceed due to the issuance of Notification of consolidation in the said village. H
596 SUPREME COURT REPORTS [2003] 2 S.C.R.
A The case was, however, tried under Section 9 of the U.P. Consolidation of
Holdings Act by the Consolidation Officer who dismissed the suit. On appeal
by Raj Karan, the Settlement Officer decreed the suit on August 12, 1965.
The mortgagees filed revision before the Deputy Director of Consolidation
who allowed the revision petition and restored the order of the Settlement
Officer (Consolidation) on December 21, 1965. The said order was impugned
B in writ petitions before the High Court of Judicature at Allahabad by different
parties. From the judgments and orders of the High Court the above appeals
came to be filed in this Court by special leave.
Mr. E.C. Agarwala, the learned counsel appearing for the appellants -
C mortgagees contended as follows: the Deputy Director of Consolidation found
that the suit land was donated by the sub-proprietor, Ram Nath Singh, in
favour of Prayag Dutt Tiwari which was not disturbed by the Maharaja of
Banaras after purchasing the village; Prayag Dutt Tiwari and his successors
continued in possession for more than fifty years and thus acquired the status
of an owner under Section 158 of the N.W. Provinces Tenancy Act of 1901
D (later termed as the Agra Tenancy Act - for short, 'the Agra Act'); under
Section 6 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act,
1950 (for short, 'the Z.A.Act'), the rights of a mortgagor bad come to an end
and he becaine entitled to recover the mortgage amount as a simple mortgagee;
however, Section 14(2) conferred the right of ownership/bhumidar on such
E a mortgagor who held land as 'Sir' or under 'Khudkasht' on the date of the
mortgage but the suit land was not so held and some other mortgagees were
in possession so it could not have been under the Khudkasht of the mortgagors
on the relevant date as such their right got extinguished; the mortgagees
would have become hereditary tenant, had they deposited five times the rent
but they failed to do so and therefore Gaon Sabha became entitled to eject
F them under Section 209 within three years from the date of the vesting in
view of Section 210 of the Z.A. Act and Rule 338 of the U.P. Zamindari
Rules read with Appendix III (Item 30) but no suit was brought by Gaon
Sabha till date and so they had become sirdar or asami and would be deemed
to be a tenant from year to year; even assuming the mortgagors become
G bhumidar, they could not evict the mortgagees after the limitation of three
years as they perfected their title by adverse possession; in the written
submission it is added that the mortgagors, not having acquired the right
under Section 14(2)(a), had no right to bring the suit for eviction.
Mr. V.K.S .. Chaudhary, the learned senior counsel appearing for the
H mortgagors, argued that: in the Namanzuri village, the mortgagors could not
THAKUR PRASAD v. RAJ KARAN [SYED SHAH MOHAMMEDQUADRI, J.] 597
claim any right under Section 158 of the Agra Act; by the 1954 Notification A
the Z.A.Act was applied to the suit land village duly deleting Sections 4 to
112 thereof the mortgagees were entitled only to mortgage money which was
already deposited in the court; even in the sale deed obtained by mortgagees
the position of the mortgagors as bhumidars was accepted which could not
be permitted to be denied now; the mortgagors became bhumidars under B
Section 130 and under Section 133 of the Z.A.Act the mortgagees became
asamis so the suit for ejectment of the mortgagees was required to be decreed;
Raj Karan and others were given possession of the suit land by the
Consolidation Officer accepting them as bhumidars and the mortgagees'
possession was confined only to the I/6th share which they had purchased;
they could not deprive the mortgagors of their land. C
It is a common ground that the suit land formed part of erstwhile
Banaras State before its merger in the State ofU.P. on January 26, 1950. The
·Maharaja of Banaras was the absolute owner of the Banaras State which, it
was stated, was formed out of Banaras family Domain in 1911-1912. In the
Banaras State there were two types of villages called (i) Manzuri villages and D
(ii) Namanzuri villages. Where a village was granted by the Maharaja to an
intermediary, it was termed as 'Manzuri' village; the other villages in respect
of which no grant was made by him were referred to as 'Namanzuri' villages.
We have perused a copy of the English translation of Dastur-e-Delhi
)
(also known as 'Wajibularz') of village Chaura Kalan, a 'Manzuri' village, E
which was auctioned to the Government Taluka Konrh pargana Bhadohi
district Mirzapur, relating to year 1281 F. Section I thereof says that the
village, Abad-2 is of 'Namanzuri' category; in regard to which it was specified
that the owner and zamindar was Maharaja Sahab Bahadur, Kashi Naresh
and that the tenants of the village were entitled to cultivate with a right to p
transfer their tenancy in accordance with the custom of that locality with the
exception of a sub-tenant-shikimi asami. The Settlement Officer on the basis
of village record of 1281F (1873-74) and settlement of 1230 Fasli (1911-12)
found that the village in which the suit land was situate, was a Namanzuri
village. We, therefore, proceed on that basis.
G
The Z.A. Act was enacted in 1950 but it was made applicable to different
' areas of the State of U.P. in stages - first by notification issued on June 30,
1953 (referred to as 'the 1953 Notification') to certain areas of the State and
then on July I, 1954 (referred to as, 'the I 954 Notification') to the estates
owned by the State in those areas. We shall now consider how the Notifications H
'
~·
598 SUPREME COURT REPORTS [2003) 2 S.C.R.
A - the 1953 or the 1954 - would operate in regard to the suit land village. First,
we shall refer to the provisions of Sections I and 2 of the Z.A.Act which are
relevant here. Section I deals with short title, extent and commencement of
the Act; it has three sub-sections. Sub-section (I) of Section 1 speaks of the
title of the Z.A.Act and sub-section (2) excludes certain areas from the
operation of the Act but now we are not concerned with those areas; sub-
B section (3) which is material reads as under :
"It shall come into force at once except in the areas mentioned in
clauses (a) to (f) of sub-section (I) of Section 2 where it shall, subject
to any exception or modification under sub-section (I) of Section 2,
come into force on such date as the State Government may by
c notification in the Gazette appoint, and different dates may be
appointed for different areas and different provisions of this Act."
The substance of the above provisions is that the Act shall come into force
at once (January 26, 1951) and that the State Government may apply the
D whole or any provision of the Z.A. Act, subject to any exception or
modification as may be required to the areas mentioned in clauses (a) to (f)
of sub-section (I) of Section 2; it is also clarified that different dates may be
appointed for different areas and different provisions of that Act.
Section 2 which speaks of modification of the Act and its application
E to areas or estates specified thereunder, may be quoted :
"Modification of the Act in its application to certain areas - (I)
The State Government may by notification in the Gazette apply the
whole or any provision of this Act to any of the following areas or
estates subject to such exceptions or modifications, not affecting the
F substance, as the circumstances of the case may re.quire -
(a) xxx xxx xxx
(b) any estates or parts thereof owned by the Central Government,
State Government or any local authority,
G (c) xxx xxx xxx
(d) Pargana Kaswar Raja of Banaras District,
(e) any area which, on the 30th day of November, 1949, was included
in -
H (i) Banaras State as defined in the Banaras State (Administration)
THAKUR PRASAD v. RAJ KARAN [SYED SHAH MOHAMMED QUADRI, J.) 599
Order, 1949, A
(ii) and (iii) xxx xxx xxx
*** *** ***
[(ee)] xxx xxx xxx
B
(f) xxx xxx xxx
Provided that, when this Act or its provisions are so extended to
such areas or estates, with or without exceptions or modifications, so
much of any Act or Regulation in force the.rein as is inconsistent with
this Act or the provisions so extended or with any modifications C
made therein, shall be deemed to have been repealed :
[Provided further that a notification under this sub-section in
respect of any estate or part thereof owned by the Central Government
shall not issue except in consultation with such Government]."
D
It is seen that under Section 2( I), the State Government is empowered
to apply the whole or any provision of the Z.A.Act to the areas or estates
enumerated in clauses (a) to (f) thereof. With reference to each of these
clauses the footnotes specify the amplitude of the application of the Z.A.Act.
Here it will be apt to read the relevant part of the 1953 Notification by which
J the Z.A. Act was applied to former Banaras State." E
"PART A
Application of U.P. Act I of 1951
as amended by U.P. Act XVI of 1953
F
NOTIFICATION
No.1830/1-A - I 060-53
Dated Lucknow, June 30, 1953.
In exercise of the powers conferred by sub-clause (i) of clause (e) G
of sub-section (I) of Section 2 of the Uttar Pradesh Zamindari
Abolition and Land Reforms Act, 1950 (U.P. Act I of 1951), as
amended by the Uttar Pradesh Zamindari Abolition and Land Reforms
(Amendment) Act, 1951 (U.P. Act XVI of 1953), (hereinafter referred
to as the said Act), The Governor ofUttar Pradesh is pleased to direct H
600 SUPREME COURT REPORTS [2003] 2 S.C.R. ..
A that the said Act shall apply, subject to the modifications and
amendments specified in the schedule hereto annexed to the territories
of the former Banaras State as defined in the Banaras State
(Administration) Order, 1949, except the areas included on the date
or this notification in a municipality or notified area, under the
provisions of the U.P. Municipalities Act, 1916, or a town area under
B the provisions of the U.P. Town Areas Act, 1914. The Governor is
further pleased to order under sub-section (3) of section J of the said
Act that this Act, shall come into force in the aforesaid territories'
with effect from the date of this notification.
c SCHEDULE
SI. Section of
No. The Uttar
Pradesh
Zamindari Extent of modification or amendment
Abolition
D
and Land
Reforms
Act,. 1950
2 3
E 2 In sub-section (I) of Section 2 omit clauses (a), (d),
(e) and (f).
By this Notification, the Z.A. Act, subject to the modifications
and amendments specified in the schedule, was applied to the former
Banaras State as defined in the Banaras State (Administration) Order,
F 1949 except to the areas mentioned therein which are not material
here. A perusal of the schedule shows that from the clauses of sub-
section (!) of Section 2, clauses (a), (d), (e) and (f) are omitted.
Consequently, the areas mentioned in clauses (b) and (c) only remained
in sub-section (I) of Section 2 when the Z.A. Act was applied to the
former Banaras State. However, clause (c) is not relevant here. It
G
follows that after application of the Z.A. Act to former Banaras State,
it was left to the State Government to extend the Z.A.Act to the area
in clause (b) which enumerates any estates or parts thereof owned b:t
the Central Government, State Government or any local authority.
The other modifications and amendments will be referred to as and
H when necessary.
THAKUR PRASAD v. RAJ KARAN [SYED SHAH MOHAMMED QUADRI, l.l 60 I
- Here, it is necessary to refer to the relevant part of the 1954 Notification: A
"PART 8
Application of U.P. Act I of 1951
As amended by U.P.Act XVI of 1953 B
To the
Government Estates without Intermediaries
NOTIFICATION
No. 3170/I-A-l 002-1954
Dated Lucknow, July 1, 1954
In continuation of notification no.1830/I-A-1060-53, dated June
30, 1953, and in exercise of the powers conferred by clause (b) of
sub-section {I) of Section 2 read with sub-section (2) of Section 1 of
the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 D
(U.P. Act I of 1951) and of all other powers conferred in this behalf
the Governor of Uttar Pradesh is pleased to direct that the said Act
shall, in its application to the former Banaras State, be subject in the
case of estates owned by the State Government and in which no
intermediary had any right, title or interest on June 30, 1953, to the
modifications and amendments specified in the schedule hereto E
annexed.
The Governor is further pleased to direct that the said Act as
amended and modified shall come into force in the said States with
effect from July 1, 1954
F
SCHEDULE
SL Section of
No. The Uttar
Pradesh
Zamindari Extent of modification or amendment G
Abolition
and Land
Reforms
Act, 1950
H
602 SUPREME COURT REPORTS [2003] 2 S.C.R.
A 2 3
3 (I) For clause (I) the following shall be substituted ;
~
"(!) 'appointed day' means date of publication of this
notification in the official Gazette."
B
(2) Clauses (3), (5), (6), (12), (13), (15), (17), (21),
(23) and (24), shall be deleted.
(3) For the existing clause (28) the following shall be
substituted;
c "(28) any reference to the U.P. Land Revenue Act,
1901, shall be deemed to be reference to the U.P. Land
Revenue Act, 190 I, as applicable to the former Banaras
State as defined in the Banaras State (Administration)
Order, 1949."
D
2 3-A After Section 3, the following shall be added as a new
Section 3-A:
"3-A. In this Act any reference to 'date of vesting' in
whatever form shall, unless the context otherwise
E requires, be deemed to be reference to the appointed
day."
3 4-112 Sections 4 to 112 of Chapters II to VI in Pait I shall be
deleted."
[Emphasis supplied]
F
This notification says that in its application to the former Banaras State,
the Z.A. Act shall be subject to modifications and amendments specified in
the schedule thereto in the case of estates owned by the State Government
and in which no intermediary had any interest on June 30, 1953 (date of the
-·
G 1953 Notification). The 1954 notiVcation was in continuation of the 1953
notification in its application to the former Banaras State in regard to the
estates owned by the Central Government, State Government or local authority.
It will not be quite correct to say that the issue is as to which notification is
applicable. The issue is whether Chaura Kala village was an estate owned by
the State Government.and in which no intermediary had any interest on June
H
THAKUR PRASAD v. RAJ KARAN [SYED SHAH MOHAMMED QUADRI, J.J 603
'I
30, ·1953. After the purchase of interest of Ram Nath Singh. by Maharaja of A
' Banaras subject to the rent free grant of the suit land as 'Krishnarpan' in
favour of Prayag Dutt Tiwari it became a Namanzuri village and was treated
as such from 1320 F. After merger of Banaras State in the State of U.P. the
village was an estate owned by the State Government with no intermediary.
In the result though on application of the Z.A.Act to the former Banaras State
by the 1953 Notification' applied the provisions of Chapters II to VI [Sections B
4 to 112] were applicable, yet when by the 1954 NotificatiOn the Z.A.Act
was extended to estates owned by the Central Government, State Government
or local authority, the said provisions [Sections 4 to 112] were deleted in the
application of the Act. We are unable to accept the contention of Mr. Agrawala
that the suit land was not of the State Government as it had been given in c
Krishnarpan by Ram Nath Singh to Prayag Dutt Tiwari not by the Maharaja
but by the proprietor intermediary, therefore, 1953 Notification would directly
apply and also the reasoning of the Deputy Director. We find considerable
force in the submission of Mr. Chaudhary that the Z.A.Act was made applicable
to the former Banaras State by the 1953 Notification duly retaining clauses
(b) and (c) of sub-section (I) of Section 2; and as the State was the sole D
proprietor of all the villages comprised in the erstwhile Banaras State, (since
the former Banaras State was the proprietor of all the lands in that State,
except the private properties of the Maharaja as described in the instrument
of accession) the Z.A.Act was extended to estates or parts thereof owned by
the State Government or any local authority by the 1954 Notification. E
Admittedly, Prayag Dutt Tiwari was the original rent-free grantee of
the suit land but the grant was neither at the pleasure of the grantor nor for
the performance of any specific service whether religious or secular. It was
othe~ise also not a conditional grant. Therefore, the grant was not resumable
under Section 154 of the Agra Act. Section 158 of the Agra Act confers F
proprietary rights on rent-free tenure holder. Section 158 reads as follows :
"158, Land not liable to resumption under Section 154 and which has
been held rent-free for fifty years and by two successors to the original
grantee, and land which was acquired in perpetuity in consideration
of the loss or surrender of a right previously vested in the grantee, or G
by a written instrument and for a valuable consideration, shall be
deemed to be held in proprietary right, and the court shall declare the
holder of such land to be the proprietor thereof, and to be liable to
pay the revenue thereon, and shall determine the revenue payable by
--- him."
H
604 SUPREME COURT REPORTS [2003] 2 S.C.R.
A A perusal of this section shows that to invoke the said section the
following conditions must be satisfied : (I) the land shall not be resumable
under Section 154; (2) the land should have been held rent-free for fifty years
and by two sutcessors to the original grantee; and (3) the land should have
been acquired in perpetuity in consideration of the loss or surrender of a right
.B previously vested in the grantee or by a written instrument .and for valuable
consideration. If the afore-mentioned requirements are satisfied, the land shall
be deemed to be held in proprietory right and the holder of the land was
entitled to declaration from the court to that effect and would also be liable
to pay revenue thereon as determined by the court. The expression 'rent-free
grantee' is defined in sub-section (8) of Section 4 of the Agra Act. It is an
C inclusive definition and .includes a person who holds land on service tenure.
Having regard to above requirements of Section 158 of the Agra Act, in the
absence of any finding with regard to those requirements, it is not possible
to accept the contention of the mortgagees that the mortgagors have become
proprietors of the suit land under Section 158 of the Agra Act.
D The position that would obtain on application of the Z.A. Act to the
Banaras State under the 1953 Notification has been discussed above. To the
areas to which the Z.A.Act was applied by the 1953 Notification, Sections 4
to 112 thereof among others would apply. Section 4 vests in the State all
estates situate in Uttar Pradesh as from the date to be specified by the State
E Government. Section 6 speaks of consequences of such. vesting. Among them
is the consequence 'that every mortgage with possession existing on any
estate or part thereof on the date immediately preceding the date of vesting
was substituted by a simple mortgage, without prejudice to the rights of the
State Government under Section 4. Section 14 deals with the rights of the
mortgagor and the mortgagee in an estate in possession of a mortgagee with
F possession. Sub-section (1) of Section 14 provides that subject to the provisions
of sub-section (2), a mortgagee in possession of an estate or share therein
shall, with effect from the date of the vesting, cease to have any right to hold
or possess any such land in such estate. In other words the right of the
possessory mortgagee to hold or possess the mortgaged land came to an end.
G However, sub-section (2) says, where the mortgaged land was in the personal
cultivation of the mortgagee on the date immediately preceding the date of
vesting, the following two consequences will follow: ( 1) if the mortgaged
land was sir or khudkasht of the mortgagor on the date of the mortgage, then
it will be treated as sir or khudkasht of the mortgagor or his legal representative
for purposes of working out the rights under Section 18 thereof; and (2) if
H it was not sir or khudkasht of the mortgagor on the date of the mortgage, the
THAKUR PRASAD v. RAJ KARAN [SYED SHAH MOHAMMED QUADRI QUADRI, J.] 605
mortgagee is conferred with a right (for purposes of Section 19) to become A
the hereditary tenant thereof provided he pays to the State Government,
within six months from the date of the vesting, an amount equal to five times
the rent calculated at hereditary rates applicable on the date immediately
preceding the date of vesting, But if the mortgagee fails to pay the amount
within the afore-mentioned period, he loses all rights in the mortgaged land B
and it shall be deemed to be a vacant land and the mortgagee shall be liable
to be ejected on the suit of the Gaon Sabha or the Collector under Section
209 as if he were a person in possession thereof otherwise than in accordance
with the provisions of this Act. This section (Section 14) contains two
explanations but they are not relevant for the present discussion. In passing
we may note that Section 18 is a deeming provision. It says that all lands, C
subject to the provisions of Sections JO, 15, 16 and 17 shall be deemed to
be settled by the State Government, inter alia, with an intermediary in
possession of such land as Sir or Khudkasht, who shall be entitled to retain
po.ssession as a Bhumidar thereof. Section 19 is also a deeming provision. It
says that all land held or deemed to have been held on the date immediately D
preceding the date of vesting by any person as, inter alia, a hereditary tenant
shall except as provided in Section 18(2) be entitled to take or retain possession
as a sirdar thereof.
In the instant case, it has already been meQtioned above that the suit
land was neither sir nor khudkasht of the mortgagors on the date of the E
mortgage in question as it was in possession of some other mortgagees (Ram
Khelawan and Ram Saran Singh) on that date. Under the said provisions the
mortgagors could not be said to have acquired the Bhumidari rights. It may
also be noted that the mortgagees failed to avail of the benefit of Section 14
of the Z.A.Act as they did not deposit with the State Government an amount F
equal to five times the rent within six months from the date of vesting.
Consequently, the mortgagees who acquired no right under Section 14(2)
read with Section 19 became liable to be evicted either by the Gaon Sabha
--- or by the Collector under Section 209 of the Z.A. Act. In the light of the
above discussion, it is difficult to accept the plea of the mortgagees that their
possession became adverse to that of the mortgagors. The judgment of the G
Full Bench of the Allahabad High Court in Ba/want and Ors. v. The Deputy
Director of Consolidation and Ors., AIR (1975) Allahabad 295] was a case
of the mortgagor being a Bhumidar. It is, therefore, not on the point.
However, the germane question is : did Section 14 apply to the suit
land? Inasmuch as the village Chaura Kalan, Taluka Konrh, Pargana Bhadohi, H
606 SUPREME COURT REPORTS [2003) 2 S.C.R.
A District Varanasi of the State of U.P, was a Namanzuri village and
consequently the State Government became the owner thereof on the merger
of the Banaras State with the U. P. State, the estate in the village was owned
by me State of U.P. It has already b€en noticed above that Z.A. Act was
made applicable to the estates owned by the State Government in the former
B Banaras State by the 1954 Notification. The Z.A. Act was applied to the
estate owned by the State Government after duly deleting Sections 4 to 112
(Chapters II to VI in Part !), consequently Section 14 would obviously be
inapplicable, therefore, the contention of the mortgagees that the rights of the
mortgagors were extinguished under Section 14 and that the mortgagees
became liable to be evicted only on a suit instituted by the Gaon Sabha or
C by the Collector cannot but be misconceived and an untenable plea. On the
facts of this case Sections 209 and 210 of the Act are not attracted.
It is important to note here that on application of the Z.A.Act, Chapter
VIII (Sections 129 to 230) applied" to the aforementioned area. Sections 130
and 133, which are material for our purpose, read as under :
D r
"130. Every person belonging to any of the following classes shall be
called a bhumidar and shall have all the rights and be subject to all
the liabilities conferred or imposed upon bhumidars by or under this
Act; namely:-
E (a) Every person who on the date immediately preceding the appointed
day held land as -
(i) a fixed rate tenant or a rent-free grantee -............. .
133. Every person belonging to any of the following classes shall be
p called an asami and shall have all the rights and be subject to all the
liabilities conferred or imposed upon asamis by or under this Act;
namely :-
(a) every person who on the date immediately preceding the appointed
G
day held land as -
(i) ... ••• ...
(i'.) a mortgagee from a person belonging to any of the classes
mentioned in sub-clauses (i) to (iv) of clause (a} of Section
130 or sub-clauses (i) to (iv) of clause (a) of Section 131;
H
/ '
I
-...(
THAKUR PRASAD 1·. RAJ KARAN [SYED SHAH MOHAMMED QUADR!, J] 607
From a perusal of the provisions, extracted above, it is plain that a rent- A
free grantee became bhumidar under sub-clause (i) of clause (a) of Section
130 and a mortgagee from a bhumidar became asami under sub-clause (ii) of
clause (a) of Section 133 of the Z.A.Act. Thus, in the instant case, the
mortgagors became bhumidars and the mortgagees became asamis. The title
of the mortgagors as bhumidars was also accepted by the mortgagees when
they purchased one sixth share in the suit land from the mortgagors. In view B
of this position, the mortgagors (bhumidars) were entitled to seek ejection of
the mqrtgagees (asamis) on depositing the mortgage money under Section
200( c) of the Z.A.Act. i
I
From the above discussion, it follows that the mortgagees are not entitled
c
-· to claim any right either under the Agra Tenancy Act or under the Z.A. Act.
As the mortgage money had been deposited by the mortgagors, the mortgagees
had no right to continue in the posse~sion of the mortgaged land. However,
we clarify that having purchased ~:ie sixth share of the mortgagors, the
mortgagees are entitled to remain in possession of only one sixth share of thi:
..-...
land. We have already noted above that the Settlement Officer had allotted ,__.
one sixth share of the suit land to the mortgagee~ ar.d the possession of the
rest of the suit land had been given to .the purchasers of the mortgaged land
(suit land).
For the foregoing reasons the order under challenge in Civil Appeal
Nos. 865 to 867 of 1984 c!oes not call for any interference by this Court. The E
Civil Appeal Nos. 865 of 1984, 866 of 1984 and 867 of 1984 are, therefore,
dismissed.
In view of the dismissal of the above appeals, Civil Appeal No.868 of
1984 filed by the Raj Karan deserves to be allowed and it is accordingly
F
allowed.
In the circumstances of the case, we direct the parties to bear their own
.. ~
costs.
K:K.T. Appeals allowed. 00
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