Thakur Prasad (Dead) Through L.Rs vs Raj Karan (Dead) By L.Rs. & Ors

----------------------------------------------------------------------------- Sl. Section of No. The Uttar Pradesh Zamindari Extent of modification or amendment Abolition and Land Reforms Act, 1950

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----------------------------------------------------------------------------- 1 2 In sub-section (1) of Section 2 omit clauses (a), (d),

(e) and (f).

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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, 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 (1) 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 (1) of Section 2 when the Z.A. Act was applied to the former Banaras State. However, clause (c) is not relevant here. It 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 by the Central Government, State Government or any local authority. The other modifications and amendments will be referred to as and when necessary.

Here, it is necessary to refer to the relevant part of the 1954 Notification :

"PART B Application of U.P. Act I of 1951 As amended by U.P.Act XVI of 1953 To the Government Estates without Intermediaries

NOTIFICATION No.3170/I-A-1002-1954 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 (1) of Section 2 read with sub-section (2) of Section 1 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (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 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.

SCHEDULE

----------------------------------------------------------------------------- Sl. Section of No. The Uttar Pradesh Zamindari Extent of modification or amendment Abolition and Land Reforms Act, 1950

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----------------------------------------------------------------------------- 1 3 (1) For clause (1) the following shall be substituted ;

"(1) 'appointed day' means date of publication of this notification in the official Gazette."

(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;

"(28) any reference to the U.P. Land Revenue Act, 1901, shall be deemed to be reference to the U.P.Land Revenue Act, 1901, as applicable to the former Banaras State as defined in the Banaras State (Administration) Order, 1949."

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 requires, be deemed to be reference to the appointed day."

3 4-112 Sections 4 to 112 of Chapters II to VI in Part I shall be deleted."

[Emphasis supplied]

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 1953 Notification). The 1954 notification 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 Kalan village was an estate owned by the State Government and in which no intermediary had any interest on June 30, 1953. After the purchase of interest of Ram Nath Singh by Maharaja of 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 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 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 (1) of Section 2; and as the State was the sole 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.

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 otherwise 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 proprietory 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 by a written instrument and for a valuable consideration, shall be deemed to be held in proprietory 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."

A perusal of this section shows that to invoke the said section the following conditions must be satisfied :

(1) the land shall not be resumable under Section 154; (2) the 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. 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 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.

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 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 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. 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 it was not sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee is conferred with a right (for purposes of Section 19) to become 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 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, subject to the provisions of Sections 10, 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 possession 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 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 mentioned above that 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 (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 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 Full Bench of the Allahabad High Court in Balwant & Ors. vs. The Deputy Director of Consolidation & 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, 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 the State of U.P. It has already been noticed above that Z.A. Act was made applicable to the estates owned by the State Government in the former 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 I), 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 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 :

"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:-

(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 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 day held land as -

(i) *** *** ***

(ii) 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;

............"

From a perusal of the provisions, extracted above, it is plain that a rent-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 of this position, the mortgagors (bhumidars) were entitled to seek ejection of the mortgagees (asamis) on depositing the mortgage money under Section 200(c) of the Z.A.Act.

From the above discussion, it follows that the mortgagees are not entitled 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 possession of the mortgaged land. However, we clarify that having purchased one sixth share of the mortgagors, the mortgagees are entitled to remain in possession of only one sixth share of the land. We have already noted above that the Settlement Officer had allotted one sixth share of the suit land to the mortgagees and 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 does not call for any interference by this Court. The 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 allowed. In the circumstances of the case, we direct the parties to bear their own costs.