Supreme Court of India
Budha vs Amilal on 21 December, 1990
Equivalent citations: 1991 AIR 663, 1990 SCR SUPL. (3) 656, AIR 1991 SUPREME COURT 663, 1991 AIR SCW 229, 1991 (2) SCC(SUPP) 41, (1990) 4 JT 804 (SC), 1990 (4) JT 804, 1991 (1) UJ (SC) 498, (1991) REVDEC 39
PETITIONER:
BUDHA
Vs.
RESPONDENT:
AMILAL
DATE OF JUDGMENT21/12/1990
BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
KULDIP SINGH (J)
CITATION:
1991 AIR 663 1990 SCR Supl. (3) 656
1991 SCC Supl. (2) 41 JT 1990 (4) 804
1990 SCALE (2)1306
ACT:
Rajasthan Zamindari and Biswedari Abolition Act, 1959-
Section 29(1)--'Khudkasht'--Whether Zamindar/Biswedar be-
comes Malik--Lands vests in government.
HEADNOTE:
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 respond-
ent, 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. Kallu Ram and the
appellant were biswedars in respect of those lands. Kallu
Ram died and the appellant claimed that on the death of
Kallu Ram property devolved on him. The appellant filed a
suit for redemption of aforesaid mortgages against Sheo Ram
before the Munsif Magistrate, Kishangarh Bas. The defendant
contested the suit and pleaded that on the abolition of
Biswedari, consequent on the coming into force of the Rajas-
than Zamindar and Biswedari Abolition Act, 1959, the rights,
title and interest in the lands in question stood trans-
ferred and vested in the State of Rajasthan and the appel-
lant did not have the right to redeem the mortgage. It was
also pleaded that on the date of the creation of the mort-
gage, 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 of the civil court to entertain the suit was
also raised. The trial magistrate 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 Additional Civil Judge, held
that the name of the appellant appeared as holder of Khud-
kasht 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 suit for redemption of the mort-
gages. The matter was thus remanded for trial. The defendant
filed a second appeal in the High Court. The High Court
allowed the appeal and restored the judg-
657
ment and decree of the Munsiff dismissing the suit of the
appellant. The 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 be thus looked into. It fur-
ther took the view that the appellant himself had pleaded
that since the execution of the mortgage deeds, the posses-
sion of the lands remained with the defendant and that
clearly showed that the appellant was not in 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
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 has been used in
the same sense in the Act. In the main part Khudkasht 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 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 of one's family, or (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. [664C-D]
The expression 'Khudkasht' as defined in Section 5(23)
of the Rajasthan Tenancy Act, would, not include land in
possession of and cultivated by a tenant or mortgagee.
[664G]
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
appellant cannot. therefore, claim Khatedari rights in
respect of the lands in dispute. [667B-C]
Gurucharan Singh v. Kamla 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
658
202; Bhubaneshwar Prasad Narain Singh and Ors. v. Sidheshwar
Mukherjee and Ors., [1971] 3 SCR 639; Kailash Rai v. Jai Jai
Ram, [1973] 3 SCR 411, referred to.
Gummalapura Taggina Matada Kotturuswami v. Setra Veerav-
va and Others, [1959] Supp. 1 SCR 968; Harihar Prasad Singh
and Another v. Must. of Munshi Nath Prasad and Others,
[1959] SCR 1, not applicable.
JUDGMENT:
