Allahabad High Court
Babban Ram vs D.D.C. And Others on 26 September, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:185998 Reserved on 21.09.2023 Delivered on 26.09.2023 HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 48 Case :- WRIT - B No. - 131 of 1977 Babau Ram and others ----- Petitioners Through : Sri S.K. Tyagi, Adv. Vs. Deputy Director of Consolidation and others ----- Respondents Through : Standing Counsel Sri H.N. Tripathi, Adv. ****** CORAM : HON'BLE SAURABH SHYAM SHAMSHERY, J.
1. This writ petition involves a title dispute, arising out of objections filed under Section 9A(2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "Act, 1953").
2. On the basis of record available it is not much disputed that in basic year names of original petitioners herein were recorded having equal share on land in dispute. Original contesting-respondents have filed three sets of objections claiming their right, details thereof are as follows:
(I) First set of objections were filed by original Respondent-2 (Bateshwar), claiming that petitioners were fixed rent tenants on his 1/3 share of land in dispute. His predecessors have mortgaged said share to ancestors of opposite parties and has objected their claim that on enforcement of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "Act, 1950") they become Sirdar and after depositing 10 times of rent, Bhumidhari sanad was also issued, i.e., became Bhumidhar.
(II) Second set of objections were filed by Mst. Ramdei, original Respondent-7 that respondents were sub-tenant on her 1/3 share. It was also claimed that there was partition qua to her share from other co-sharers.
(III) Third set of objection was filed by Nageshwar Dube, original Respondent-6 that land was wrongly mutated in names of respondents and that he was in possession of land and was recorded in 1351 Fasli.
3. The Consolidation Officer rejected all sets of objections filed by respondents and maintained basic year entry as correct, vide order dated 07.06.1964. It was held that land in dispute was fixed rent tenancy of respondents before Act, 1950. There was no partition of holdings, therefore, Mst. Ramdei, original Respondent-7, could not get any benefit of her disability, i.e., being a widow. It was further held that period of limitation for redemption of mortgage expired after 30 years and since no suit for redemption of mortgage was filed within time by mortgagor, thus right of mortgagor extinguished. Names of petitioners were rightly recorded as Bhumidhar, so far as share of original Respondent-2 was concerned.
4. Being aggrieved by above referred order, two appeals were filed which were rejected by a common order dated 16.01.1975 passed by Settlement Officer of Consolidation. Appellate Authority has held that limitation for redemption of mortgagee was expired, including the period as provided under Section 30 of Limitation Act, 1963 (hereinafter referred to as "Act, 1963"). It was further held that Mst. Ramdei, original Respondent-7 could not prove her case and since Khata was joint, therefore, any disability of her was ineffective and that petitioners could not be considered as Asami.
5. Above order passed by Settlement Officer of Consolidation led to filing of two revisions, one by original Respondent-2, Bateshwar and another by original Respondent-7, Mrs. Ramdei. Revisional Authority vide impugned order dated 16.12.1976 allowed both revisions and set aside impugned order therein, i.e., the orders passed by Consolidation Officer and Settlement Officer of Consolidation. Findings returned by Deputy Director of Consolidation are mentioned, in brief, hereinafter:
(I) Land in dispute was recorded as fixed rate tenancy in the name of Mata Sunder Dube in 1306 Fasli. In 1346 Fasli it was recorded in the name of Nageshwar and others. Sheo Nandan, predecessor of petitioners, was recorded mortgagee over the share of Bateshwar in 1355 Fasli and 1356 Fasli. There was a mortgage deed dated 13.09.1929 executed by Bateshwar in favour of Sheo Nandan in respect of his share. In Khatauni 1359 Fasli Gaya was recorded in sub-tenant's column. Petitioners were declared Adhivasi and Sirdar on the basis of aforesaid entry. In Khatauni 1362 Fasli petitioners were recorded as Sirdar by order of Compensation Officer.
(II) As regard to claim of Bateshwar, it was held that Sheo Nandan and his successors were mortgagee and Asami over his share and after enforcement of Act, 1950 provisions of Limitation Act came to be ceased.
(III) As regard to case of Mst. Ramdei, it was held that petitioners on their own showing become co-sharer on the basis of sale deed executed by Kamla Shankar in their favour, therefore, they could not acquire any right by possession inasmuch as there would be no trespass against the share besides the ouster was not proved.
6. Aforesaid order dated 16.12.1976 passed by Deputy Director of Consolidation is challenged before this Court.
7. This writ petition is pending since 1977 and during pendency number of parties have expired and their respective legal heirs are on record.
8. Sri S.K. Tyagi, learned counsel for petitioners submitted that concurrent findings recorded by Consolidation Officer and Settlement Officer of Consolidation were erroneously interfered by Revisional Authority. The findings returned with regard to applicability of Act, 1963 was perverse and for that he refers Section 30 as well as Article 61(a) of Part V of Schedule of Act, 1963, which are reproduced as under:
"30 Provision for suits, etc ., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908.--Notwithstanding anything contained in this Act,--
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908 (9 of 1908), whichever period expires earlier:
Provided that if in respect of any such suit, the said period of seven years expires earlier than period of limitation prescribed therefor under the Indian Limitation Act, 1908 (9 of 1908) and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908 (9 of 1908), as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act;
(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier."
Part V Article 61(a) of Schedule
61. By a mortgagor-
(a) to redeem or recover possession of immovable property mortgaged.
Thirty years When the right to redeem or to recover possession accrues.
9. Learned counsel for petitioners has further submitted that it is not in dispute that original respondents have not taken any attempt to file a suit for redemption and since limitation period was already over many years ago, they have lost right over land in dispute and by virtue of provisions of Act, 1950, original petitioners become Sirdar and later on after paying 10 times of rent, they become Bhumidhar and Sanad was also issued, which was also not challenged. Learned counsel also referred grounds No. (a) and (b) of writ petition, which are extracted hereinbelow:
"a) Because the petitioners' predecessor Gaya was recorded occupant in 1356F and he was in cultivatory possession in 1359F. Therefore he became Adhivasi and Sirdar of the land in dispute. The rights and title of the landholders extinguished under section 240A of the U.P. Zamindari Abolition and Land Reforms Act.
b) Because the Compensation statement sealed and signed by the Compensation Officer in the proceeding under Chapter IX-A of the U.P. Zamindari Abolition and Land Reforms Act became final under section 240J of the said Act. The rights and title of the opposite party land-holders extinguished. The actual payment of the compensation was not necessary to be proved by the petitioners though in fact the compensation was not necessary to be proved by the petitioners though in fact the compensation was paid to the opposite parties. The Deputy Director has wrongly ignored the orders of Compensation Officer for want of proof of actual payment of the Compensation."
10. Per contra, Sri H.N. Tripathi, learned counsel appearing for Respondent-2 has submitted that findings returned by Deputy Director of Consolidation were legally sustainable and by a reasoned order the findings returned by Consolidation Officer and Settlement Officer of Consolidation were interfered which was within the scope of Section 48 of Act, 1953. He also submitted that a mortgagee is always be a mortgagee. Learned counsel further submitted that original Respondent-2, Bateshwar was a mortgagor and Sheo Nandan was mortgagee and since Sheo Nandan was substituted by petitioners, therefore, respondents would be their sub-tenant.
11. In rejoinder, learned counsel for petitioners has referred para 25 of writ petition that Revisional Authority has erred in not considering the fact about the sale deed dated 30.06.1938 and has not granted benefit thereof to petitioners. For reference para 25 of writ petition is mentioned hereinafter:
"25. That the petitioners have purchased 1 Bigha 8 Biswa land out of the original holding of 4 Bigha 4 Biswa from Kamla Shanker through sale deed dated 30th June, 1938. The petitioners' name were recorded in revenue papers on the basis of the aforesaid sale deed as co-sharer even in 1346F onwards. Therefore the petitioners' name could not have been expunged from the entire Khata no. 16. The Deputy Director of Consolidation has committed manifest error or law."
12. In reply to above submission, learned counsel for Respondent-2 submitted that above submission relates to Respondent-8, Kamla Shanker and since despite service no counter affidavit has been filed either by original Respondent-8 or their legal heirs, therefore, it may be dealt with in accordance with law after considering findings returned by the Deputy Director of Consolidation on the issue. Learned Standing Counsel State has referred a judgment passed by Full Bench of this Court in the case of Basdeo and others Vs. Board of Revenue and others, 1974 A.L.J. 706 (F.B.).
13. Heard learned counsel for parties and perused the material available on record.
14. Before considering the rival submissions following two judgments of Full Bench of this Court and one judgment of Supreme Court, wherein judgments of Full Bench on issue of limitation on redemption of mortgage, were referred, affirmed and approved, would be appropriate to refer hereinafter:
(I) Mahabal Singh and another vs. Ram Raj and others, 1950 SCC OnLine All 138 (Paragraphs 9, 10 and 22):
"9. In the second Full Bench case of Ghassu v. Babu Ram (A.I.R. (31) 1944 All. 25 : I.L.R. (1944) All. 166 (F.B.), the question arose as to the legal effect of a mortgage of an occupancy holding and the relief which in certain circumstance is open to the mortgagor in relation to a such a mortgage. There being conflict upon that question, the case was referred to the Full Bench. Dar, J., who delivered the judgment of the Full Bench, laid down several propositions which may be summarised as follows:
(1) That the usufructuary mortgage of an occupancy holding by a tenant is void and not voidable.
(2) That a mortgagor after giving possession to the mortgagee cannot recover possession of the holding without paying the money which lie (sic, he) had taken from the mortgagee.
(3) That a mortgagee of an occupancy holding by remaining in possession for over 12 years does not extinguish the rights of the mortgagor to redeem him and by such possession the mortgagee only prescribes for mortgages rights.
(4) That it is open to the mortgagor to seek possession of the holding by tendering the consideration which he had received and he may do so by a redemption suit.
(5) The relationship which comes into existence as a result of the mortgage of an occupancy holding and its possession being transferred to the mortgagee, though not strictly speaking that of a mortgagor and a mortgagee, is analogous to that relationship, and the action which is raised by the mortgagor to recover possession of the holding on payment of the money due to the mortgagee, though not strictly in the nature of a redemption, is analogous to a redemption suit.
10. A large number of authorities are referred to in support of these conclusions. It follows that upon the question whether the mortgage of an occupancy holding is void, there is no conflict between the Avadh and the Allahabad cases. The only conflict is that while the Avadh Chief Court has consistently held that a mortgagor can recover possession of the occupancy holding without being called upon to return the consideration money he had received from the mortgagee, save where the consideration can be proved independently of the mortgage, the Allahabad High Court has equally consistently held that the mortgagor is not entitled to recover possession without being called upon to return the consideration. The following are some of the cages (sic, cases) in which possession was decreed at the instance of the mortgagor on return of the money received by him on principles of equity: Bahoran Upadhya v. Uttamgir, 8 All L.J. 931 : (33 All. 779), Durga Chowdhuri v. Jagroop, A.I.R. (10) 1923 All. 191 : (79 I.C. 232), Bisheshar Pathak v. Rup Narain Singh, 26 A.L.J. 401 : (A.I.R. (15) 1928 All. 286), Mt. Raj Rani v. Gulab, A.I.R. (15) 1928 All. 552 : (117 I.C. 831), Mt. Dukhi v. Inderman Ahir, A.I.R. (21) 1934 All. 656 : (153 I.C. 903)."
"22. According to the view of law enunciated above, it is clear that the mortgagors are entitled to recover possession subject to the payment of the money received from the mortgagees and no question of limitation arises in the case. The possession of the mortgagees was a permissive possession and the only right they have is to be allowed to claim the money which the mortgagors had received. The plaint as framed, however, does not justify the granting of this relief to the plaintiffs in the two cases. Both the cases conveniently ignored the mortgage transactions and the plaintiffs put themselves forward as hereditary tenants of the land and treated the mortgagees as trespassers. They sued not only for possession but damages also. The cause of action was also wrongly stated. The plaintiffs did not offer to restore the benefit which they had received from the mortgagees as a condition precedent to their obtaining the relief for possession. Upon the present allegations in the two plaints, it is not possible to grant the relief for possession to the plaintiffs against the defendants, The cases will, therefore, go back to the trial Court and the plaintiffs of the two cases will be allowed to amend their plaint in the light of the above observation. The defendants will be allowed to raise such pleas in defence as may be open to them, and the parties will be entitled to produce such additional evidence as may appear necessary. The Court will then pass a proper decree according to law."
(Emphasis Supplied) (II) Balwant and others vs. Deputy Director of Consolidation, 1975 SCC OnLine All 69 (Paragraphs 6, 58, 73, 74, 83, 86, 87, 88 and 89):
" 6. ......In order to resolve this conflict, the following questions of law have been referred to a Full Bench:--
"(1) Whether the possession of the mortgagee whose rights have extinguished under Sec. 14(1) of the U.P. Zamindari Abolition and Land Reforms Act is on or after the date of vesting per se adverse or permissive?
(2) Does the period of limitation for a suit under Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act commence to run from the date of vesting or on the date of demand of possession?".
"58.N.D. Ojha, J.:-- I have gone through the opinion of brother Satish Chandra but I regret my inability to agree with the conclusion reached by him. The necessary facts are contained in the opinion of brother Satish Chandra and as such without repeating them here I propose to deal with the questions of law straightaway."
"73. As already seen above, there is nothing in the Act as a result of which the possession of the mortgagee could be said to have by operation of law per se become, on the date of vesting, without the consent of the mortgagor. Consequently, unless it was established that the mortgagee had clearly and unequivocally repudiated the permissive character of his possession to the knowledge of the mortgagor, his possession would continue to be permissive and with the consent of the mortgagor till such consent was revoked.
74. From the above discussion it also follows that the period of limitation for a suit under Sec. 209 of the Act will commence to run from the date of demand for possession and not from the date of vesting."
"83. If an occupancy tenant was ejected or died without leaving any heir or surrendered the holding he ceased to have any interest whatsoever in the land and no question of his subtenant or licensee continuing in possession with his consent could naturally arise. He was completely obliterated from the scene. The same is not the position of a usufructuary mortgagee as is clear from the foregoing discussion. The status of the mortgagee is, substituted from usufructuary mortgagee to simple mortgagee subject of course to the statutory restrictions created by Sec. 6(h) He continues to be a secured creditor. His continuance in possession even after the date of vesting is not dis-favoured by the Legislature, except that his possession will not be as usufructuary mortgagee. Even the mortgagor who had given his consent is not completely obliterated from the scene so that he ceases to have any interest in the land as is the case will an occupancy tenant, after his being ejected or dying without leaving any heir or surrendering the holding. Here fresh rights of bhumidhar are created in favour of the mortgagor in that very land in place of the earlier rights which vested in the State and the mortgagor gets a simultaneous right--so to speak without any hiatus to take or retain possession over that very land as bhumidrar over which the usufructuary mortgagee was in possession as such till the date of vesting and continues in possession even thereafter even though not "as such". It is in this context that the nature of his possession after the date of vesting has to be considered and on such consideration it does not appear that his possession becomes per se adverse after the date of vesting."
"86. My answer to the two questions referred to above is, therefore, as follows:--
(1) The possession of the mortgagee whose right have extinguished under Sec. 14(1) of the Zamindari Abolition and Land Reforms Act on or after the date of vesting is not per se adverse but is permissive.
(2) The period of limitation for a suit under Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act would commence to run not from the date of vesting but from the date of demand for possession.
87.R.L. Gulati, J.:-- I agree.
88.By the Court. In view of the majority opinion the questions referred to this Bench are answered as follows:--
(1) The possession of the mortgagee whose rights have extinguished under Sec. 14(1) of the Zamindari Abolition and Land Reforms Act on or after the date of vesting is not per se adverse but is permissive.
(2) The period of limitation for a suit under Sec. 209 of the U.P. Zamindari Abolition and Land Reforms Act would commence to run not from the date of vesting but from the date of demand for possession.
89.Questions answered."
(Emphasis Supplied) (III) Pratap Singh alias Babu Ram and another vs. Deputy Director of Consolidation, Mainpuri and others, (2000) 4 SCC 614 :
"13. Section 14(1) purports to abolish all the rights of the mortgagee in possession of an estate or a share therein with effect from the date of vesting. It specifically provides that a mortgagee in possession shall cease to have any right to hold or possess land in such estate. Sub-section (1), however, operates subject to the provisions of sub-section (2) as is evident from the opening words of sub-section (1). Sub-section (2) provides that if the land, which was the subject-matter of the mortgage referred to in sub-section (1), was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting, then, if such land was "sir" or "khudkasht" land of the mortgagor on the date of the mortgage, the said land shall be deemed to be "sir" or "khudkasht" of the mortgagor for purposes of Section 18. The implication of this provision is that even if the land was in the cultivatory possession of the mortgagee, on the date of vesting, it would be treated, fictionally, "sir" or "khudkasht" of the mortgagor, provided the land, on the date of the mortgage, was the "sir" or "khudkasht" of the mortgagor. The immediate effect of this deeming provision would be that the mortgagor would acquire "bhumidhari" rights in respect of that land under Section 18 of the Act. Thus, the overall effect of sub-sections (1) and (2) of Section 14 is that the rights of a mortgagee come to an end with effect from the date of vesting and the mortgagor becomes "bhumidhar" of that land under Section 18 of the Act. To put it differently, the encumbrance created by the mortgagor comes to an end as the land vests in the State free from encumbrance but the rights of the mortgagee to recover mortgage money is preserved as it is provided in Section 6(h) that it can be recovered from the "substituted security" under Section 73 of the Transfer of Property Act.
14. We may point out that "bhumidhari" rights, acquired by the mortgagor under Section 18, are new rights created under the Act after the land in which such rights have been acquired had vested in the State free from all encumbrances. This land, notwithstanding that it was the subject-matter of mortgage prior to the date of vesting, would not be treated as "substituted security" within the meaning of Section 73 of the Transfer of Property Act and a mortgage decree, if any, cannot be executed against that land. (See: Rana Sheo Ambar Singh v. Allahabad Bank Ltd. [AIR 1961 SC 1790 : (1962) 2 SCR 441])
15. The next and immediate question which crops up is the question relating to the status of the mortgagee in respect of that land. Even though the mortgagee was in cultivatory possession of the land on the date of vesting, his rights under the mortgage qua that land come to end as that land vests in the State subject to the condition that if the land, on the date of the mortgage was "sir" or "khudkasht" land of the mortgagor, the latter, namely the mortgagor would become a "bhumidhar" under Section 18.
16. If in these circumstances, the mortgagee continues to remain in possession in spite of his rights having come to an end by the force of law, what would be the character of his possession; whether the possession would immediately become "hostile" to that of the mortgagor who has acquired "bhumidhari" rights under Section 18, or the mortgagee would be treated to be continuing in possession for and on behalf of the mortgagor. It is, at this stage, that the words used in Entry 30 relating to suits under Section 209 of the Act as set out in Appendix III to the Rules made under the ZA&LR Act become relevant. In column 3 meant for "Description of suit, application and other proceeding", the words used are: "Suit for ejectment of a person taking or retaining possession of the land unlawfully and for damages." These words contemplate a suit for ejectment of a person who has taken possession unlawfully or continues to retain that possession unlawfully. In the case of possessory or usufructuary mortgage, possession is delivered to the mortgagee. Delivery of possession to the mortgagee is a sine qua non of such a mortgage. It is delivered in terms of the mortgage by the mortgagor of his own volition to the mortgagee. The mortgagee gets possession over the land only because it has been delivered to him in terms of the mortgage deed which equally binds him. The entry into possession of the mortgagee in these circumstances cannot be said to be unlawful. Once the possession was delivered to the mortgagee lawfully by the mortgagor himself, the further retention of that possession by the mortgagee would obviously be with the consent of the mortgagor and the mortgagee shall be treated to be retaining the possession for and on behalf of the mortgagor till the mortgage is redeemed. The character of possession of the mortgagee who was lawfully inducted into possession by the mortgagor, does not change at any stage and it continues to be lawful possession.
17. A bare reading of the words of Entry 30 in Appendix III, relating to suits under Section 209 of the Act, makes it clear that the period of limitation would not run from the date of vesting, as the character of the mortgagee's possession remains "permissive" and does not become "adverse" to the interest of the mortgagor who after acquiring "bhumidhari" rights under Section 18, may still allow the mortgagee to continue in possession. As pointed out earlier, Entry 30 would apply to a suit where a person has obtained possession over land "unlawfully" and continues to retain that possession unlawfully. The period of limitation in the case of a "permissive" possession would start running from the date the mortgagee, who is asked to deliver possession, refuses to do so. "Permissive possession" means that the mortgagee is in possession over the property in question with the leave of the owner, or to put it differently, of the "bhumidhar". If on being asked to deliver possession, the mortgagee refuses or declines to do so, it would give rise to a cause of action on the date on which possession is refused to be delivered and consequently the period of three years would start running from that date.
18. The High Court has considered the question from another angle. It has noticed that a usufructuary mortgage stands converted into a simple mortgage. It then proceeded to consider the ingredients of a simple mortgage and ultimately came to the conclusion that if the matter is examined from that angle, then too, the possession of the mortgagee would be permissive in character and the period of limitation for filing a suit under Section 209 would commence from the date on which the mortgagee refuses to deliver possession.
19. In Shri Ram v. Dhan Bahadur Singh [AIR 1965 All 223] as also in Mustafa Khan v. Dy. Director of Consolidation [1972 All LJ 854 : AIR 1973 All 372] it was held that possession of the mortgagee is permissive in the sense that it is with the consent of the mortgagor. In Mahabal Singh v. Ram Raj [1950 All LJ 713 : AIR 1950 All 604 (FB)] which is a Full Bench decision of the High Court, it was held that possession of a mortgagee of tenancy land, whose transfer was forbidden by law, would be "permissive" in character. This decision has since been approved in Raj Narain Pandey v. Sant Prasad Tewari [(1973) 2 SCC 35 : AIR 1973 SC 291] in which this Court observed, inter alia, as under: (SCC pp. 38-39, paras 9-10) "9. We are unable to accede to the above contention, because we find that the matter is covered by two Full Bench decisions of the Allahabad High Court. In a five-Judge decision of the Allahabad High Court in the case of Mahabal Singh [1950 All LJ 713 : AIR 1950 All 604 (FB)] the Court referred to the decision of a three-Judge Bench of that Court in the case of Ghassu v. Babu Ram [AIR 1944 All 25 : ILR 1944 All 166 (FB)] and found that the following five propositions had been laid down in the earlier case:
'(1) That the usufructuary mortgage of an occupancy holding by a tenant is void and not voidable.
(2) That a mortgagor after giving possession to the mortgagee cannot recover possession of the holding without paying the money which he had taken from the mortgagee.
(3) That a mortgagee of an occupancy holding by remaining in possession for over 12 years does not extinguish the rights of the mortgagor to redeem it and by such possession the mortgagee only prescribes for mortgagee rights.
(4) That it is open to the mortgagor to seek possession of the holding by tendering the consideration which he had received and he may do so by a redemption suit.
(5) The relationship which comes into existence as a result of the mortgage of an occupancy holding and its possession being transferred to the mortgagee, though not strictly speaking that of a mortgagor and a mortgagee, is analogous to that relationship, and the action which is raised by the mortgagor to recover possession of the holding on payment of the money due to the mortgagee, though not strictly in the nature of a redemption, is analogous to a redemption suit.'
10. It was also observed that to take a contrary view from the law laid down in those five propositions would have the effect of unsettling the law established for a number of years. Mr Agarwal has not questioned the correctness of the above-mentioned five propositions and, in our opinion, rightly so. In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not disturbed. A different view would not only introduce an element of uncertainty and confusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation."
"21. In our opinion, the majority decision of the Full Bench lays down the correct law. The Full Bench decision has since been followed by Hon. R.M. Sahai, J. (as his Lordship then was) in Tribeni v. Chakauri [1982 All LJ 784 : 1982 RD 185] in which it was laid down that the rights of a mortgagee come to an end from the date of vesting and his possession was "permissive" in character and not adverse to the interest of the mortgagor."
(Emphasis Supplied)
15. The above referred position of law, squarely covers the issued of law raised in facts and circumstances of present case, against the submission of petitioners and supports the view taken by Deputy Director of Consolidation.
16. The Supreme Court has held that, "the rights of a mortgagee come to an end from the date of vesting and his possession was "permissive" in character and not adverse to the interest of the mortgagor" as well as "permissible possession" means that the mortgagee is in possession over the property in question with the leave of the owner, or to put it differently, of the "bhumidhar". If on being asked to deliver possession, the mortgagee refuses or decline to do so, it would give rise to a cause of action on the date on which possession is refused to be delivered and consequently the period of three years would start running from that date."
17. In view of above, the findings returned by Consolidation Officer and Settlement Officer of Consolidation that right of mortgagor was extinguished was contrary to position of law as referred above and, therefore, the Revisional Authority has rightly interfered and correctly held that after Act, 1950 came into force Indian Limitation Act ceased to apply in case of an asami and their ejectment will be governed by the provisions of Act, 1950 and that two authorities below were wrong in applying the period prescribed under Limitation Act, and there would be no trespass against respondents.
18. So far as submission with regard to sale deed of part of land, referred in para 11 and 12 of this judgment is concerned, since original respondent No.8 and his legal heirs have opted not to appear, therefore, finding returned by Revisional Authority would be relevant that "as regards the claim of Mst. Ram Dei, it is admitted by the respondents that they acquired a portion of three plots by way of sale from Kamla Shanker, therefore, their possession was that of a co-tenure-holder of the Khata in which Mst. Ram Dei was also recorded as a co-tenure-holder. A co-tenure-holder of the same Khata, therefore, the entry of class 20 in respect of the share of Mst. Ramdei is also erroneous because on their own admission the respondents were co-tenure-holders on the basis of the sale-deed referred to above. No plea of ouster has been raised. The co-tenure-holder could only be ousted. There could be no trespass against the share of a co-tenure-holder. In view of this the respondents could not be trespasser, so as to acquire Adhivasi rights against Mst. Ramdei.
19. I do not find reason to interfere with above referred findings being based on legally sustainable grounds.
20. In view of above, I do not find any illegality or irregularity in impugned order. Writ petition is accordingly dismissed.
21. Interim order, if any, stands vacated.
Order Date :-26.09.2023 AK