Patna High Court
Ram Kailash Singh vs Baliram Singh And Ors. on 24 July, 1962
Equivalent citations: AIR1963PAT26, AIR 1963 PATNA 26
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT Untwalia, J.
1. This is an appeal by the plaintiff under Clause 10 of the Letters Patent from the decision dated the 8th October, 1956, of a learned Single Judge of this Court in Second Appeal 1714 of 1951. Three second appeals were disposed of by the said decision which is final in respect of the other two second appeals. All the three second appeals had arisen out of one suit filed by the plaintiff for redemption in respect of 6 bighas 16 kathas of lands in village Soya bearing tauzi No. 1503/23 given in usufructuary mortgage as per rehan bond dated 24th Fagun, 1297 fasli corresponding to some date in the year 1890.
2. The case of the appellant as made out in the plaint was that one Ganesh Prasad Singh of village Soya had four sons, namely, Anant Singh, Fakir Singh alias Nandlal Singh, Balmakund and Gurubux Singh. The suit land belonged to them. Balmukund and Gurubux died issueless. Anant had three sons, namely, Ramdahin, Sheodahin and Ramcharitar. Defendant No. 2 in the suit -- Bishwanath Singh -- is the son of Ramdahin. Nandlal and his two deceased brothers had 6 pies 16 karants and Ramdahin and his brothers had 2 pies 10 karants proprietary shares in village Soya in tauzi No. 1503/23. In 1890 Ramdahin and his brothers and Nandlal executed a rehan bond (Ext. C/1) in favour of one Ganga Singh In respect of 6 bighas 16 kathas of lands characterising them to be their zerat lands in the usufructuary mortgage bond. The rehandar came in possession of the lands.
In the year 1898 the share of Nandlal arid his brothers in the village was sold for arrears of cess under the Public Demands Recovery Act and was purchased by Maharaja of Dumraon. During the survey operations, a separate khewat No. 1/56 was prepared in the name of the Maharaja Bahadur and a samilat Khewat No. 1/57 was prepared for the suit lands in the name of the Maharaja Bahadur and Ramdahin. A darmeyani khewat No. 120 was prepared in the name of Ganga Singh with respect to the suit lands. At the time of survey 2-39 acres out of the rehan lands in question were recorded as bakasht in the name of Ganga Singh under Khata 694 while the remaining lands measuring 1-97 acres were recorded as raiyati kaimi of defendants 3 and 4 under Khatas 695, 696 and 697. The Maharaja of Dumraon executed a permanent lease in respect of 6 pies and odd share of Nandlal purchased by him along with other shares in other properties in favour of the plaintiff appellant on the 9th of October, 1944, and the latter got possession as mokarraridar.
The plaintiff's case further was that Ramdahin after the death of his brothers redeemed the rehan bond (Ext. C/1) on the 30th of Jeth, 1340 fasli, corresponding to some date in the year 1933. He subsequently executed a dar-rehan in respect of 2-39 acres of bakasht lands in favour of one Ramnarain Misra on 31-8-1938. Thereafter he gave in dar-rehan the same lands to defendant No. 1 on 8-11-1939 and the latter came in possession of the lands.
It is said that the plaintiff tendered the rehan money to defendant No. 1 but the latter refused to accept it and then he deposited the money in court under Sec. 83 of the Transfer of Property Act. According to the appellant's case, after the deposit of the rehan money, defendant No. 1 had no right to remain on the rehan land and that the names of defendants 3 and 4 were fraudulently recorded as raiyats in the Khatian against the name of Ganga Singh although they were never in possession of those lands. The appellant accordingly brought the suit giving rise to this appeal for redemption of the rehan bond (Ext. C/1) on payment of his proportionate share of the rehan money. He prayed for recovery of possession over the entire lands measuring 6 bighas 16 kathas covered by the said rehan bond together with mesne profits. He also prayed for partition of a separate takhta with respect to his share after redemption but the claim for partition was not pressed at the time of trial.
3. The suit was contested by defendants 1, 3 and 4. They disputed the purchase of Nandlal's share by Dumraon Raj and challenged the plaintiff's right to redeem alleging that the mokarrari patta (Ext. 1) executed in favour of the plaintiff by the Raj was farzi. Defendant No. 1 also pleaded that Ramdahin and his son, Bishwanath Prasad Singh, defendant No. 2, had settled 2-39 acres of land of Khata No. 694 with him under a registered patta dated 25-11-41 (Ext. E) and he had acquired occupancy right, therein, being settled raiyat of the village and, as such, he could not be ejected therefrom. This defendant also alleged that the plaintiff had never tendered the rehan money and that he had no occasion for doing so.
In a joint written statement, defendants 3 and 4 pleaded that the lands recorded under Khatas 695, 696 and 637 were the raiyati Kasht of the ancestors of these defendants and were recorded as such in their names in the survey Khatian. Their ancestors and they had been fn possession of the lands on payment of rent to the proprietors and rehandars and that they were not liable to be ejected therefrom.
4. The two courts of fact below held that Maharaja Bahadur had purchased 6 pies 16 karants share belonging to Nandlal and the Maharaja had executed a permanent lease in favour of the plaintiff with respect to that share, and the plaintiff was found entitled to redeem the rehan bond on payment of proportionate rehan money. The tender and deposit by the plaintiff was not accepted as vatid and, therefore, he was not found entitled to any mesne profits.
Both the courts below further found that defendant No. 1 had acquired occupancy right over the lands measuring 2.39 acres settled with him under the patta (Ext. E) and the plaintiff could not eject him from the said lands. They have further found defendants 3 and 4 also acquired occupancy right in the lands of Khatas 695 to 697 and they also cannot be ejected from the suit land. The suit was decreed in part and defendants 1 and 3 to 6 (defendants 5 and 6 belong to the family of defendants 3 and 4) have been directed to pay proportionate rent to the plaintiff with respect to the suit land.
5. Second Appeal 1701 of 1951 and Second Appeal 1702 of 1951 were respectively preferred by defendants 1 and 2 against the decision of the court of appeal below in regard to the question of the plaintiff having acquired title to redeem the mortgage bond on payment of proportionate mortgage money and the decree passed by the courts below for payment of rent to him. Both the appeals were dismissed by the learned single judge. Second Appeal 1714 of 1951 filed by the plaintiff appellant was the main controversial appeal, which has also been dismissed.
The substantial question of law which has been decided in that appeal and which falls for decision in this Letters Patent Appeal is -- Whether defendant No. 1 has acquired occupancy right in 2-39 acres of lands comprised in khata 694 and defendants 3 and 4, or for the matter of that, defendants 3 to 6, have acquired occupancy right in the rest of the suit lands comprised in Khatas 695 to 697? The learned single Judge, in agreement with the decision of the courts below, has held that they have acquired such an occupancy right. I may note here that the case of defendants 3 and 4 that the lands of the three Khatas aforesaid were their ancestral kashi lands has not been accepted by any of the Courts. What has been found is that their ancestors were inducted on the lands of those Khatas by Ganga Singh, the original usufructuary mortgagee, and because they were so inducted by the mortgagee who was authorised to induct tenants on the rehan lands and also because they were inducted in due course of management of the mortgaged property, they have acquired occupancy rights. In the same view, the acquisition of occupancy rights by defendant No. 1 in the lands of Khata No. 694 has also been upheld. The determination of this question requires consideration of some authorities of this Court as also of the Supreme Court, most of which have been referred to and considered by the learned single Judge. Before I discuss the authorities on the point, I would like to state the relevant facts and findings concerning the two portions of the suit lands in respect of which the occupancy rights of defendants 3 to 6 and of defendant No. 1 have been found.
6. As I have stated above, defendants 3 and 4 pleaded in their written statement that the lands of the three khatas claimed by them were their ancestral Kasht lands and their ancestors and they had been coming in possession of the same on payment of rent to the proprietors meaning thereby the mortgagors and thereafter the mortgagee. That is to say, they did not plead that they were inducted on the lands as tenants by the mortgagee, Ganga Singh. In any event, it is clear from their written statement, through which I have gone, that they did not plead that in due course of management Ganga Singh, the mortgagee, made permanent settlement of the lands with them or that it was a bona fide settlement in their favour. No evidence in this regard seems to have been adduced by the parties. The trial court neither framed any issue in regard to the question as to whether the lands had been settled by the mortgagee in due course of management nor recorded any finding to this effect. The lower appellate court in its judgment has stated thus:
"The settlement appears to have been made in ordinary course of management and nothing was urgsd before me to show that it was a collusive affair."
The said sentence of the judgment of the lower appellate court has also been quoted by the learned Single Judge of this court. No evidence or circumstance is referred to by the lower appellate court or by the learned Single Judge of this Court in support of the said finding which is more or less in the nature of a mere observation. In regard to the settlement in favour of defendant No. 1 of 2-39 acres of land by Ramdahin, one of the original co-mortgagors, who, on redemption of the bond (Ext. C/1) in the year 1933 had, according to the decision of all the courts, stepped, into the shoes of the original usufructuary mortgagee in respect of the entire rehan lands, the position is worse. I have gone through the written statement of defendant No. 1. He also did not plead that the lands were settled with him by Ramdahin, the subrogated mortgagee, in due course of management nor did the trial court go into this question or record any finding in this regard as no evidence seems to have been adduced on the point of settlement in due course of management by the mortgagee. The lower appellate court observed in its judgment:
"In this particular case, the lands of Khata No. 694 were settled with defendant No. 1 under the Patta Ext. E. It has not been proved that the said patta is collusive or that it was not beneficial to the estates or it was not executed in the ordinary course of management."
The learned single Judge, it appears from his judgment, has not referred to this finding or observation of the lower appellate court put in the negative form in regard to the settlement of land with defendant No. 1. It seems that he has assumed that the finding was that the subrogated mortgagee had settled 2.39 acres of land with defendant No. 1 also bona fide and in due course of management. The learned single Judge has upheld the acquisition of the occupancy rights by the two sets of defendants in the two portions of the suit lands on the ground that by the mortgage bond (Ext. C/1) the mortgagee was authorised by the mortgagors to make settlement and that the settlements were made by the mortgagees at the two relevant times bona fide and in due course of management.
7. An official translation of the rehan bond (Ext-C/1) has been placed before us. In order to decide as to whether the mortgagee was authorised by the mortgagors to induct tenants on the lands; if so, to what, extent and for what purpose, it is necessary to quote two relevant passages from the recitals of the bond. They run thus:
"..... that (we let out in rehan) our own two intar in 6 bighas 16 kathas of our exclusive ancestral Zirat land, constituting the milkiat interest in Soya, as per details and boundaries given below (to the creditor) and we do declare and put it into writing that the aforesaid creditor should gladly remain in possession and occupation of the aforesaid land. He should himself cultivate the same or let it out in settlement to others and appropriate the entire produce thereof in lieu of interest of the aforesaid debt.
X X X X X We the executants shall pay the principal amount at a time to the creditor. We shall take back the aforesaid land and this document."
Reading these passages together, it is clear to me that the mortgagors did not give any general authority to the mortgagee to make settlement of the rehan land or of any portion of it on their behalf by inducting permanent tenants upon the land. The authority or the right given to the mortgagee was to cultivate the land or to let it out in settlement to others for the purposes of appropriating the entire produce or usufruct got either by direct cultivation or on settlement of land in lieu of interest on the debt advanced and secured by the mortgage.
It is important to note that the mortgagors were in possession of the rehan land. Their claim was that it was their ancestral zerat land although it has been concurrently found that technically the rehan lands were not their zerat lands belonging to the category of the proprietor's private lands but were their bakasht lands belonging to the stock of the raiyati lands coming in possession of the proprietor on abandonment or the like. The mortgagors had specifically provided in the document, as evidenced by the latter passage extracted above, that on payment of the principal amount at any time they were entitled to take back the rehan land and the deed of mortgage. This could not be possible if they had authorised the mortgagee and constituted them as their representatives or agents as was argued before us by Mr. S.N. Datta to make permanent settlement of the rehan land on their behalf.
In my judgment, therefore, reading the document as a whole it is clear that the mortgagee could induct tenants on, and make settlement of, the rehan lands only for the purposes of realising his usufruct in lieu of interest on the debt, and obviously such settlement could not enure beyond the subsistence of the mortgage. This view is well supported by a Bench decision of this Court in Kanhaiya Singh v. Bhagwat Singh, 1954 B.L.J.R. 170: AIR 1954 Pat 326. The learned single Judge has distinguished this authority on the ground that in that case the finding of the lower appellate court after remand was that the defendants had acquired occupancy rights prior to the creation of the mortgage and hence the decision as to the interpretation of the mortgage bond on the question of authority was obiter. The same view was canvassed before us by Mr. S.N. Datta, learned counsel for defendant No. 1 respondent No. 1. If I may say so with the greatest respect, this view is not correct. The decision of the lower appellate court has not been up held by the Bench of this Court in Kanhaiya Singh's case 1954 BLJR 170 : AIR 1954 Pat 326, rather the decision was set aside and the appeal was allowed on the decision of the question which fell to be deckled as to whether the defendants bad acquired occupancy rights in the rehan lands. This could not have been so had the decision of this question been mere obiter dictum.
It is further to be observed that Choudhary J. who delivered the judgment of the Bench had, in clear and unambiguous terms, held at p. 176 (2) (of BUR) : (at p. 332 of AIR).
"It was, therefore, not open to the court of appeal below to enter into any discussion or to come to any finding with regard to the defendants' possession as raiyats prior to the dates of the mortgages".
On construction of similar provisions in the mortgage bond of Kanhaiya Singh's case, 1954 BUR 170 : AIR 1954 Pat 326, Choudhary J., held at p. 175(2) (of BLJR): (at p. 331 of AIR).
"Having read the document, exhibit 2(a), as a whole, I am of opinion that it was clearly stipulated in it that, though the mortgagee would be entitled to settle the lands for the purpose of getting their usufruct during the continuance of the mortgage, he was not authorised to make such settlement which might deprive the mortgagor to get khas possession over them after redemption of the mortgage".
8. The next question for consideration is as to whether two sets of defendants can be held to have acquired occupancy right in the suit lands on the ground of the settlements having been made by the mortgagee in due course of management, It is beyond any doubt now that, if there is an express restriction in the mortgaged deed prohibiting the mortgagee from making any settlement of the rehan lands, the settlement by him cannot be upheld even under Section 76 (a) of the Transfer of Property Act. It is also well settled that the settlement by a usufructuary mortgagee per se is not a settlement by the proprietor or the tenure-holder and the settlee cannot acquire the rights of a raiyat. These two propositions are established by decisions in Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205, AIR 1954 Pat 326 : 1954 B.L.J.R. 170 and Harihar Prasad Singh v. Deonarain Prasad, (S) AIR 1956 SC 305. But settlement by a mortgagee who has been authorised to induct tenants upon the rehan lands and/or in due course of management by him in pursuance of his obligation under Section 76 (a) of the Transfer of Property Act has been upheld by Judicial decisions provided the settlement is bona fide. In Asa Ram v. Mst. Ram Kali, AIR 1958 SC 183, it has been held by Venkatarama Aiyar J. at p. 185 (1) --
"The law undoubtedly is that no person can transfer property so as to confer on the transferee a title better than what he possesses. Therefore, any transfer of the property mortgaged, by the mortgagee must cease, when the mortgage is redeemed. Now, Section 76 (a) provides that a mortgagee in possession 'must manage the properly as a person of ordinary prudence would manage it if it were his own'. Though on the language of the statute, this is an obligation cast on the mortgagee, the authorities have held that an agricultural lease created by him would be binding on the mortgagor even though the mortgage has been redeemed, provided it is of such a character that a prudent owner of property would enter into it in the usual course of management. This being in the nature of an exception, it is for the person who claims the benefit thereof, to strictly establish it".
Keeping in view the law as enunciated by the Supreme Court in the case aforesaid. It is manifest that the instant settlements in favour of the two sets of defendants cannot be supported even on the ground of having been made ,in due course of management. As I have said above, there was neither any pleading nor any evidence to establish the exception, namely, that the settlements were in due course of management. The finding of the lower appellate court in one case in the positive form without reference to any evidence or circumstance is too weak to sustain the settlement in favour of defendants 3 and 4 and is obviously untenable in law in the negative form to uphold the settlement in favour of defendant No. 1.
Moreover, from the subsequent discussion in the Judgment of the Supreme Court in Asa Ram's case, AIR 1958 SC 183 sufficient light and guidance can be gathered as to what facts and circumstances ought to have been proved to support the settlement as having been made in due course of management. No such or similar fact or circumstance has been found in this case by any of the courts to show that the settlement was made by the mortgagee in due course of management. On the contrary, if I may point out, the area of the land mortgaged was not large enough to bring into existence the necessity of inducting permanent tenants on the land. The lands originally were, as I have said above, in khas possession of the mortgagors, and by no stretch of imagination it can be said that Ganga Singh, the original mortgagee, had the necessity of settling 1.97 acres of them before survey for the purposes of due and bona fide management of the rehan property. The circumstances against Ramdahin, the subrogated mortgagee, are more telling. He had come in possession of 2.39 acres of land on redeeming the mortgage of 1890 and the whole of it was given in darrehan and then in permanent settlement by him to defendant No. 1. How can it then be said that it was so done bona fide and in due course of management?
9. Mr. Datta placed great reliance on the cases of Bhairo Nath Roy v. Shanke Pahan, 8 Pat LT 31 : (AIR 1926 Pat 605) and ManjhiI Lal v. Sheikh Mohiuddin, 8 Pat L.T. 92 and laid great stress on the fact that the rehan land in question has been found to belong to the raiyati stock of the proprietor. The argument does not find favour with me. In Bhairo Nath Ray's case, 8 Pat LT 31 : (AIR 1926 Pat 605) :the finding of the learned Subordinate Judge was --
" . . . . that the zerpeshgidars were in the same position as lessees; that lessees are entitled in the ordinary course of management to induct tenants upon raiyati lands; and that such settlement of land by the zerpeshgidars would be binding upon the proprietor or the person who had granted the zerpeshgi".
The argument in the High Court was that the zerpeshgidar had no right to settle tenants upon the lands which were in the possession of the plaintiff at the time when the zerpeshgis were granted. This argument was rejected on the ground.
".....unless there is a restriction in the zerpeshgi lease itself restricting the power of the zerpeshgidar as regards the settlement of raiyati lands, the zerpeshgidar in the ordinary course of management would be entitled to settle raiyati lands with tenants. The cases cited by the learned Vakil for the appellant, refer to zerait land or lands which were private lands of the proprietor and to which no right of occupancy could be acquired. Those cases are different from the raiyati lands which are temporarily in possession of the landlord and which are known technically as bakasht lands. Such lands are primarily raiyati lands but are held by the proprietor for the time being on account of surrender or abandonment or purchase in execution of decrees or by such other means. Such lands retain the character of raiyati lands and occupancy right is acquired as soon as such lands are settled with settled raiyats of the village. In any case, here, the finding is that the defendant has been in possession for more than 12 years and has, therefore, acquired an occupancy right. Having regard to the finding arrived at it is clear that the plaintiff is not entitled to eject the defendant. His argument is that the zerpeshgidars had no right to create encumbrance or commit acts of waste in respect of the land given to them in a zerpeshgi. If the zerpeshgidars have done any such thing the remedy of the plaintiff would be against them. As against the tenant, who is the only defendant in the present suit, no such claim can be raised and the settlement with him which has been "found to be a bona fide settlement cannot be held to be invalid on account of any act done by the zerpeshgidar to the detriment of the plaintiff".
The distinction between acquisitions of occupancy rights in zerat lands and the bakasht lands was relevant, if I may say so with respect, for the purpose of consideration as to whether such settlement of bakasht lands in due course of management could be held to be detrimental to the mortgagor's interest within the meaning of Section 76 (e) of the Transfer of Property Act. The clear point to notice is that the settlement in that case had been found to be a bona fide one and made in due course of management --elements which are completely lacking in this case. To the same effects and with the same distinction is the Manjhil Lal's case reported in 8 Pat L.T. 92.
10. In my judgment, therefore, the settlements of the rehan lands in favour of defendants 3 and 4 (for the matter of that, defendants 3 to 6) and in favour of defendant No. 1 cannot be held to be valid and subsisting beyond the period of the mortgage and on redemption the settlees are liable to be evicted.
11. In the result, I allow this appeal, set aside the decision of the learned single Judge of this Court in Second Appeal 1714 of 1951, modify the decrees of the courts below and decree the plaintiff's suit for redemption and khas possession with costs throughout. The plaintiff is held entitled to a decree for redemption on payment of his proportionate share of the mortgage money, that is to say, the sum of Rs. 403/- which has been determined by the courts below. He is entitled to get joint possession over his share of the mortgage lands, but no mesne profits. Since the relief for partition was not pressed in the trial court, a decree for partition is not being passed. But it will be open to the plaintiff to file a fresh suit for partition, if necessary, and so advised, after obtaining joint possession.
Ramaswami, C.J.
12. I agree.