VISWANATH (DEAD) BY LR.versusCHANDRA BHAN AND ORS.

                     VISWANATH (DEAD) BY LR.                                     A
                               v.
                     CHANDRA BHAN AND ORS.

                           DECEMBER 13, 1995

            (K. RAMASWAMY AND B.L. HANSARIA JJ.)                                 B

       U.P. Zamindari Abolition and Land Refonns Act, 1951>-Sections 209,
331, (1) Schedule II-Courts constituted under the Act-Jurisdiction of Land
mortgaged by the guardian, plior to the enactment of the Act-Suit for eject-
ment-Held, Courts constituted under the Act get exclusive jurisdiction exclud-   C
ing jurisdiction of Civil court-Mortgage statutorily extinguished after
enforcement of the Act, therefore redemption of Mortgage, not required, Civil
Procedure Code, 190~Section 9.

       "H", brother in law of Minor "G" as a guardian mortgaged the land
in dis1m<< to the respondent. After enforcement of U.P. Zamindari Aboli-         D
tion and Land Reforms Act, 1950, appellant filed suit for ejectment of the
Respondent under the Act.

      The Assistant Collector and the Board of Revenue held the mortgage
as void holding that "H" was neither natural nor property guardian of "G".
                                                                                 E
      The High Court allowing the writ petition of the Respondent held
that since the Respondent came into possession of the land in his title as
a mortgage, until a suit for redemption of the mortgage and the eviction
of the respondent is filed in the civil Court, the proceedings under Section
209 of the Act is not maintainable. Hence this appeal.                           F
      Allowing the appeal, this Court :

       HELD : 1.1. The appellant is not obliged to file a suit for redemption
of the mortgage. Since, after the Zamindari Abolition and Land Reforms
Act, 1950 has come into force, the mortgage stood extinguished and the           G
Bhumidhari rights acquired under the Act cannot be burdened with any
liability to redeem the mortgage debt which was statutorily extinguished
creating an encumbrance on the land. [636-A, 635-C]

    Rana Shea Ambar Singh v.Allahabad Bank Ltd. Allahabad, [1962] 2
SCR 2141, referred to.                                                           H
                               633
    634                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A         1.2. The jurisdiction of the Civil Court to take cognizance of the
    cause of action, under Section 9 of the C.P.C. stands excluded and the
    Courts constituted under the Act, get exclusive jurisdiction to take cog·
    nizance and deal with the matters referred to under the Act. Since Section
    209 of the Act expressly referred to a person taking or retaining possession
B   of land from a Bhumidhar otherwise than in accordance with the provision
    of law. Any other person who has taken possession of the land without his
    consent is liable to be ejected. Schedule II of the Act clearly mentions in
    item 24 that cognizance could be taken in respect of Section 209 and the
    competent Court has been enumerated in the schedule as Assistant Col·
    lector. (637-A-B]                                     ·
c
            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 157 of
    1978.

         From the Judgment and Order dated 14.1.76 of the Allahabad High
    Court in C. Misc. W. No. 7483 of 1971.
D
            J.P. Goyal, M.R. Bidsar and R.P. Goyal for the Appellants.

            Ms. Rani Chhabra and R.B. Misra, {NP) for the Respondents.

            The following Order of the Court was delivered :
E
          The only question in this appeal is whether the High Court in its
    order dated 12.1.1976 made in Civil Misc. Writ No. 7483nl is correct in
    law. the admitted position is that one Hanuman Singh, the brother in law
                                                                                   I
    of Guiab Singh (sister's husband), as a gnardian had executed a mortgage
    of the lands in plot Nos. 120, 122, 145/l and 145/2 situated in village
F   Kanjauli Uparhar and village janjauli Kachhar, Tappa Chaurasi, P.O.
    Khairagarh, District Allahabad in favour of the respondent. After the U.P.
    Zamindari abolition and Land Reforms Act, 1950 (for short, 'the Act') was
    brought into force with effect from 26.1.1951. The appellant laid the suit
    under Section 209 of the Act for ejectrnent of the respondent. All the
G   courts including the Board of Revenue concurrently held, which was also
    upheld by the High Court, that Hanuman Singh is neither a natural
    guardian nor a property guardian appointed to manage the estate of the
     minor Guiab Singh. Therefore, the mortgage is a void mortgage.

            The respondent contended that he had perfected his title by adverse
H possession. That contention was rejected. He also contended that he
                    VISWANATii v. CHANDRABHAN                            635

became an 'asami' under the Act and thereby he is not liable to be ejected.     A
That contention too was rejected. When he filed the writ petition, the High
Court, for the first time, held that since the respondent came into posses·
sion of the aforesaid lands in his title as a mortgagee, until a suit for
redumption of the mortgage and eviction of the respondent is filed in the
civil court, the proceedings Section 209 of the Act is not maintainable.        B
Therefore, the learned judge allowed the writ petition with the above order
and set aside the orders passed by all the tribunals 'referred to herein-
before. Thus, this appeal by special leave.

        The only question is whether the tribllnals have jurisdiction to have
the respondent ejected from the lands. This Court in Rana Sheo Ambar            C
Singh v. Allahabad Bank Ltd., Allahabad, [1962] 2 SCR 441 had held that
after the Act has come into force, the mortgage stood extinguished and the
bhumidari rights acquired under the Act cannot be burdened with any
liability to redeem the mortgage debt which was statutorily extinguished
creating an encumbrance on the land. It was held;
                                                                                D
        "... that the intention of the U.P. zamindari Abolition and Land
        Reforms Act was to vest proprietary rights in the Sir and Khudkast
        land and grove land in the Estate by virtue of s.6(a)(i) and resettle
        it on the intermediary not as compensation but by virtue of his
        cultivatory possession of lands comprised therein and on a new          E
        tenure and confer upon the intermediary a new and special right
        of Bhumidari, which he never had before, by s.18 of the Acti

        The proprietary rights in Sir, Khudkast land and grove land which
        were mortgaged were extinguished, and the Bhumidari right which
        was altogether a new right could not be considered to be included       F
        under the mortgage.

        The mortgagee could only enforce his rights against the mortgagor
        in the manner as provided by s.6(h) of the Act read with s.73 of
        the Transfer of Property Act and follow the compensation money; G
        and so far as the Sir, Khudkast land and grove land were con-
        cerned, he could not enforce his rights under the mortgage by the
        sale of Bhumidari rights created in favour of the mortgagor against
        them as a substituted security."

      As a consequence the liability to redeem the mortgage having been         H
     636                   SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A statutorily extinguished and the mortgage being void, the appellant is not
     obliged to file a suit for redemption of the mortgage. The question then is
     whether the proceedings in the courts below is validly instituted and the
     courts have jurisdiction to order ejectrnent. Section 209 of the Act en-
     visages that :

B            "209. Ejectment of persons occupying land without title.- (1) A
             person taking or retaining possession of land otherwise than in
             accordance with the provisions of the law for the time being in
             force, and ---·

                   (a) where the land forms part of the holding of a bhumidhar
c                  or asami without the consent of such bhmnidhar, or asami;

                    (b) where the land does not form part of the holing of a
                   bhumidhar or asami without the consent of the Gaon Sabha

              shall be liable to ejectment on the suit in, cases referred to in clause
D
              (a) above of the bhumidhar or asami concerned, and in cases
              referred to in clause (b) above, of the Gaon Sabha and shall also
              be liable to pay damages."

           It, therefore, postulates that a person taking or retaining possession
E of land otherwise than in accordance with the provisions of the law for the
     time being in force, where the land forms part of the holding of a bhuniid-
     har without his consent, shall be liable to be ejected, in cases referred to
     in clauses referred to above and shali a:ov be liable to pay damages.

           Sub-section (1) of Section 331 of the Act postulates that :
F
              "331. Cognizance of suits, etc. under this Act.- (1) Except as
              provided by or under this Act no court other than a court men-
              tioned in column 4 of Schedule II shall, notwithstanding anything
              contained in the Civil Procedure Code, 1908 (V of 1908), take
              cognizance of any suit, application, or proceedings mentioned in
 G
              column 3 thereof or of a suit, application or proceedings based on
              a cause of action in respect of which any relief could be obtained
              by means of any such suit or application."

           The Court constituted under the Act therefore, is empowered to take
 H    congizance of the suits under the Act, despite the provisions contained in
                   VISWANAlli v. CHANDRA BHAN                            637

Section 9 CPC. In other words, the jurisdiction of the civil court to take A
congnizence of the cause of action under Section 9 of the CPC stands
excluded and the courts constituted under the Act get exclusive jurisdiction
to take cognizance and deal with the matters referred to under the Act,
since Section 209 of the Act expressly referred to a person taking or
retaining possession of land from a bhumidhar otherwise than in accord- B
ance with the provision> of law. Any other person who has taken possession
of the land without his consent is liable to be ejected. Schedule II of the
Act clearly mentions in item 24 that cognizance could be taken in respect
of Section 209 and the competent court has been enumerated in the
Schedule as Assistant Collector. So, the Assistant Collector had jurisdiction
to take cognizance and he ordered ejectment of the respondent which was C
upheld on appeal and revision by the Board of Revenue.                     . -

       Though the learned counsel for the appellant sought to rely on
Section 331(1)(a) which enjoins to take an objection at the earliest and
precludes the respondent to raise the issue of jurisdiction of the court at
any subsequent stage of the proceedings, it is not necessary for us to deal D
at length with that contention. Suffice it to state that under Section 209,
the trial court has jurisdiction, as referred to earlier, to order eviction of
the respondent and it was upheld by all the courts.

       The appeal is accordingly allowed. The order of the High Court is       E
set aside and that of the tribunals below under the Act stand restored. But,
in the circumstances, there shall be no order as to costs.

K.T.                                                       Appeal allowed.