Supreme Court of India
BIR SINGH AND ORS.versusPYARE SINGH AND ORS.
- Citation
- 2000 INSC 121
- Decided
- 6 March 2000
- Disposal
- Dismissed
- Bench
- S SAGHIR AHMAD
Holding
A zamindar who is not in actual possession of khudkasht land on the date of vesting under the Zamindari and Biswedari Abolition Act cannot claim khatedari rights and cannot maintain a suit for possession.
Summary
The appellants, heirs of a zamindar who had mortgaged a parcel of khudkasht land, sued the mortgagee (later his heirs) for possession under Sections 43(3) and 183 of the Rajasthan Tenancy Act. The district authority and revenue boards ruled in favour of the appellants, declaring them khatedar kashtkar, but the Rajasthan High Court set aside those orders. On appeal, the Supreme Court examined whether the appellants could be deemed khatedar tenants after the Rajasthan Zamindari and Biswedari Abolition Act, 1959 came into force. The Court held that only a zamindar who was in actual possession of khudkasht land on the date of vesting becomes a khatedar tenant; otherwise the land vests in the State and the former zamindar cannot claim possession or maintain a suit. Since the appellants were not in possession on the vesting date (the mortgagee held the land), they were not khatedar tenants and their suit could not succeed. Consequently, the appeal was dismissed.
Issues considered
- Whether the appellants, as heirs of a zamindar, acquired khatedari rights in the disputed khudkasht land after the Zamindari and Biswedari Abolition Act, 1959.
- Whether the lack of actual possession on the date of vesting bars a zamindar from claiming khatedari rights and from maintaining a suit for recovery of possession.
Legislation cited
- Rajasthan Land Revenue Act, 1956
- Rajasthan Tenancy Act, 1955s. 12, s. 183, s. 43(3)
- Transfer of Property Act, 1882s. 73
Subjects
Zamindari abolitionKhudkasht landKhatedar rightsPossessionMortgageRajasthan Tenancy ActLand reform
Judgment
BIR SINGH AND ORS. A
v.
PYARE SINGH AND ORS.
MARCH 6, 2000
[S. SAGHIR AHMAD AND D.P. MOHAPATRA, JJ.] B
Tenancy and Land Laws :
Rajasthan ?.amindari and Biswedari Abolition Act, 1959-Sections 2, 5,
29 and 30-?.amindar-Entitlement qf-Khatedari Rights in Khudkasht land
on abolition of zamindari rights under section 29 of the Act-Held, ?.amindar
c
entitled to such rights if he is in possession/occupation of khudkasht land on
the date of vesting of the estate-Further, if zamindar is not in possession of
khudkasht land on the date of vesting then such land vests in State-Thus,
Zamindar not entitled to maintain a suit for recovery of possession of the land
from any other person-Rajasthan Tenancy Act, 1955 Sections 43(3) and 183. D
One 'C', the predecessor-in-interest of the appellants, held zamindari
rights in respect of the disputed land. It was recorded that 'C' was th~
'Khudkasht Kashtkar' of the land. 'C' mortgaged the land with one 'CS'
the predecessor-in-interest of the respondents. It was for the period of ten
years. After a period of nine years from the date of executing mortgage E
deed, 'C' expired leaving appellants as his legal heirs. After expiry of the
mortgage period, 'CS' did not hand over possession of the land. The
appellants filed a suit for recovery of possession under Section 43(3) read
with Section 183 of the Rajasthan Tenancy Act, 1955. The Additional
District Collector decreed the suit and directed 'CS' to hand over posses- F
sion of the land to the appellants who were declared as 'Khatedar Kashtkar'.
The Revenue authorities upheld the decree by dismissing 'CS's first and
the second appeals. 'CS' expired during the pendency of the appeal and
the respondents were substituted as his legal heirs. The aggrieved respond-
ents challenged the order of the Revenue authorities in a writ petition and
G
the High Court allowed it.
In appeal before this Court, appellants contended that after aboli-
tion of the Zamindari right of the appellants under the Rajasthan Zamindari
and Biswedari Abolition Act, 1959 the appellants were entitled to retain
the the land in dispute which was a part of their 'khudkasht' land as H
111
112 SUPREME COURT REPORTS (2000] 2 S.C.R.
A recorded in the revenue record.
The respondent submitted that as the appellants were not in occupa-
tion of the land in dispute on the date the Act came into force they could
not retain possession of the land, notwithstanding the entry in the revenue
records showing the land as 'khudkasht'.
B
Dismissing the appeal, this Court
HELD : 1.1. A Zamindar who is in possession/occupation of
Khudkasht land on the date of vesting of the estate becomes a Khatedar
c tenant on abolition of the Zamindari right under section 29 of the Rajasthan
Zamindari and Biswedari Abolition Act. H the Zamindar is not in occupa-- -
tion of the Khudkasht land on the date of vesting then such 'land' vests in
the State alongwith the other 'land' subject to the provisions of the Act. In
respect of such land Zamindar is not entitled to claim any right of posses-
sion and consequently is not entitled to maintain a suit for recovery of
D _possession of the land from any other person. (120-C; E-F]
Budha v. Amilal, (1991) Supp. 2 SCC 41, held applicable.
1.2. Under Section 29 of the Act a Zamindar becomes a Malik of the
E Khudkasht land in his occupation and he shall be entitled to the rights .
conferred and all the liabilities imposed on a Khatedar tenant by or under
the Act. H the Zamindar is not in occupation of the Khudkasht land on the
date of vesting he is not entitled to claim khat~dari right in the land. The
scheme behind this provision is that if a Zamindar or Biswedar is in actual
occupation of cultivable land on the date of abolition of his Zamindari
F right then he should continue to be in possession of such land. (120-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6119 of 1995.
From the Judgment and Order dated 24.2.94 of the Rajasthan High
Court in D.B,C.W.P. No. 4159 of 1993.
G
Dushant Dave and Ms. Kamini Jaiswal for the Appellants.
Sushil K. Jain and A. Mishra for the Respondents.
-H The Judgment of the Court was delivered by
BIR SINGH v. PYARE SINGH [D.P. MOHAPATRA, J.] 113
D.P.MOHAPATRA, J. On analysis of the case of the parties and the A
contentions raised on their behalf the question which arises for determination
is whether in the facts and circumstances of the case the appellants can be
said to be 'khatedar tenants' of the land in dispute. If this question is
answered in the affirmative then the further question for consideration will be
whether the right of the appellants in the land in dispute was extinguished
B
under section 12 of the Rajasthan Tenancy Act, 1955 (for shott 'the Tenancy
Act'). The High Court of Rajasthan having answered the first question in.the
negative and dismissed the suit, the plaintiffs are in appeal against the
judgment.
The factual matrix of the case relevant for appreciation of the question C
for determination, may be stated thus : - Late Chet Singh held zamindari
rights in respect of the disputed land situated in Village Mohammadpur, of
Tehsil-Dholpur in the State of Rajasthan. As he was serving in the army he
had engaged Sohan Singh for cultivation of the land. Since Sohan Singh got
his name recorded in the revenue records as the owner of the land Chet Singh D
filed a suit, against him before the Assistant Collector, Dholpur. In the said
a
suit compromise was entered into between the parties and possession of the
property was delivered by Sohan Singh to Chet Singh. In the said compromise
it was averred that Chet Singh was the 'Khudkasht Kashatkar' of the disputed
-1 land and that Sohan Singh voluntarily handed over possession of the land to
~~~~ E
Chet Singh mortgaged the land with Charan Singh for a period of ten
years for satisfaction of the loan amounting to Rs.300 vide the registered
mortgage deed dated 22.9.1956. Chet Singh expired in 1965 leaving the
appellants as his legal heirs. As Charan Singh did not hand over possession F
of the land even after expiry of the period of mortgage the appellants filed
a suit, under Section 43(3) read with Section 183 of the Tenancy Act against
Charan Singh seeking recovery of possession of the land. The Additional
District Collector, by the order dated 12.5.1983 in case no. 142/82 decreed
the suit and directed Charan Singh to hand over vacant possession of the land
in dispute to the appellants declaring them as 'Khatedar Kashtkar'. Charan G
Singh was further directed to pay to the appellants a sum of Rs.3400 as
penalty for illegal occupation of the land during the seventeen agricultural
years .after expiry of the mortgage period. In the appeal, Appeal no.253 of
1983, filed by Charan Singh the Revenue Appellate Authority, Bharatpur by
the order dated 15.7.1985 dismissed the appeal and confinned the order of H
114 SUPREME COURT REPORTS [2000] 2 S.C.R.
A the Additional District Collector. The second appeal, RTAno.144/85, filed by
Charan Singh before the Rajasthan Revenue Appellate Board, was dismissed
by the order dated 22.6.1993. Charan Singh expired on 25.2.1991 during
pendency of the appeal and the respondents herein were substituted as his
legal heirs. The respondents challenged the· order of the Revenue Appellate
Board in CWP No.4159/93 before the Rajasthan High Court. The High Court
B
by the Jugdment dated 24.2.1994 allowed the writ petition, quashed the
concurrent orders of the statutory authorities and dismissed the s~t. The said
judgment is under challenge in the present appeal.
The thrust of the submissions made by the learned counsel for the
c appellants is that the High Court erred in reversing the concurrent decisions
of the statutory authorities on the erroneous finding that they are not entitled
to recover possession of land in dispute. The learned counsel contends that
after abolition of the Zamindari right of the appellants under the Rajasthan
Zamindari and Biswedari Abolition Act, 1959 [for short 'the Zamindari
D Abolition Act'] the appellants were entitled to retain the land in dispute which
was a part of their 'khudk:asht' land as recorded in the revenue records.
The learned · counsel for the respondents supporting the impugned
judgment submitted that in view of the undisputed factual position that the
appellants were not in occupation of the land in dispute on the date the
E Zarnindari Abolition Act came into force they could hot retain possession of
the land, notwithstanding the entry in the revenue records showing the land
as 'khudk:asht'. He placed reliance on the decision of this Court in the case
of Budha v. Amilal, [1991] Supp. 2 SCC 41.
F Undisputedly, the plaintiff had lost possession over the land in dispute
by 22 September, 1956 when the mortgage deed was registered. It is not in
dispute that the plaintiff was seeking recovery of possession from the
mortgagee Charan Singh in the suit filed in September, 1967. It is also an
accepted position that the land in dispute was shown in the revenue record
as 'khudk:asht land'. It is also accepted position that Chet Singh, the predeces-
G sor in the interest of the appellants, held Zamindari right over land in dispute.
In this backdrop the question for consideration is whether after enforcement
of the Zamindari Abolition Act the plaintiffs could claim right of possession
over the land in dispute. From the orders passed by the statutory authorities
it appears that this question was not specifically adverted to by the authorities ..
H They proceeded to determine the controversy on the basis of the provisions
BIR SINGH v. PYARE SINGH [D.P. MOHAPATRA, J.] 115
in Sections 10 and 12 of the Rajasthan Tenancy Act. A
In section 2(3) of the Zamindari Abolition Act 'land' means every class
or category of land forming part of an estate and includes -
(a) benefits to arise out of such land,
B
(b) things attached to the earth or permanently fastened to _anything
attached to the earth,
(c) sites of villages or towns,
beds of tanks, ponds, embankments, rivers and water channels,
c
(d)
·- and
(e) surface of hills
Under sub-section (5) of the said section the term 'Zarnindar' has the D
meaning assigned to it by clause (46) of section 5 of the Tenancy Act and
includes a malik (landowner) in the Gang Canal area.
Sub-section (6) of section 2 provides that words and expressions
defined in the Tenancy Act and in the Rajasthan Land Revenue Act, 1956
E
(Rajasthan Act 15 of 1956) but not defined in this Act shall, wherever used
herein, be construed to have the meaning assigned to them by those Acts.
In sub-section (7) of section 2 it is laid down that the words and
expression used to denote the person in possession of any right, title or
interest shall be deemed to include the predecessors and successors in right, F
title or interest of such person.
Section 3 which is the provision regarding overriding effect of this Act
over other laws provides tliat save as otherwise expressly provided in this Act,
the provisions of this Act, and of the rules and orders made thereunder shall
G
have effect notwithstanding anything inconsistent therewith contained in any
other law and mies for the time being in force or any instrument having effect
by virtue of any law or usage, agreement, settlement, grant sanad or any
decree or order of any court of other authority.
Chapter II of the Act comprises of the provisions regarding Abolition H
116 SUPREME COURT REPORTS [2000] 2 s.c.R.
A of Zamindari and Biswedari Estates.
In section 5 which is included in the said chapter provisions are made
regarding consequences of abolition. The relevant portions of the section are
quoted hereunder :
B
"5. Consequences of abolition _-(1)
xxx xxx xxx
(2) As from the date of vesting of any Zamindari or Biswedari estate
c in the State Government, notwithstanding anytlµng contained in any
contract, grant or other document or in any law for the time being in
force but save as otherwise provided in this Act-
/
(a) such estate shall stand transferred to, and vest in, the State
Government free from all encumbrances.
D
(b) the right, title and interest of the Zamindar or Biswedar and of
every person claiming through him, in such estate, including land
(cultivable, waste or barren) grove-land, grass land or birs, scrub
- jungle, forests, trees, fisheries, hills, wells tanks, ponds, water courses
E and channels, ferries, pathways, village sites, abadi sites, hats, bazars,
means and mela grounds, and in all sub soil therein, including rights,
if any, in quarries and mines whether being worked or not and in all
mineral and mineral products, shall cease and be vested in the State
Government, free from all encumbrances, for the purposes of the
F State, and every mortgage, debt or charge on any such right, title or
interest shall be a charge on the amount of compensation payable to
the Zamindar or Biswedar under this Act;
xxx xxx xxx
G (d) every right, title or interest created in or over such estate by the
Zamindar or Biswedar or his predecessor-in-interest shall, as against •
the State Government, cease and determine; all rents and cesses in
respect of any holdings in such estate for any period after the date
of vesting, which, but for such vesting, would have been payable to
H the Zamindar or Biswedar, shall vest in and be payable to the State
BIR SINGH v. PYARE SINGH [D.P. MOHAPATRA, J.] 117
Government, and any payment made in contravention of this clause A
shall not be a valid discharge of the person liable to pay the same;
xxx xxx xxx
G) every mortgage with possession existing on such estate or part
thereof on the date immediately preceding the date of vesting shall, B
to the extent of the amount secured on such estate or part, be deemed,
without prejudice to the rights of the State Government under this
section, to have been substituted by a simple mortgage;
(k) no claim or liability enforceable or incurred before the date of c
vesting against or by the Zamindar or Biswedar for any money which
is charged on or in secured by a mortgage of such estate or part
thereof shall, except as provided in section 73 of the Transfer of
·Property Act, 1882 (Central Act IV of 1882), be enforceable against
his right, title or interest in such estate or part;
D
(1) Subject to any rules made in this behalf, all suits and proceedings
affecting such estate, in which, because of the same having vesting
in the State Government, the latter will be a neessary part, pending
in any court, civil or revenue, at the date of vesting and all proceeding
co~sequent upon any decree or orders passed in any such suit or E
proceeding before such date, shall not be proceeded with till, on an
application made in that behalf, the State Government is made a party
thereto;
xxx xxx xxx
F
(4) Notwithstanding anything contained in sub-section (2) the Zmnindar
or Biswedar shall, subject to the provisions of section 29, continue
to retain the possession of his Khudkasht, recorded as such in the
annual registers before the date of vesting.
G
(emphasis supplied)
Section 29 of the Act which is included in Chapter V-Miscellaneous
contains provision regarding Khatedari rights in Khudkasht land.
In sub-section ( 1) thereof it is provided that as from the date of vesting H
118 SUPREME COURT REPORTS [2000] 2 S.C.R.
A of an estate, the Zamindar or Biswedar thereof shall be a Malik of any
khudkasht land in his occupation on such date and shall, as such Malik, be
entitled to all.the rights conferred and be subject to all the liabilities imposed
on a khatedar tenant by or under the Rajasthan Tenancy Act, 1955. Sub-
section (2) of the section is not relevant for the present purpose.
B
(emphasis supplied)
Section 30 contains the provisions regarding rights of tenants in estate.
Sub-section(l) thereof provides that subject to the provisions of sections 15,
ISA, 15B and 16 of the Rajasthan Tenancy Act, every tenant in an estate,
C · other than a tenant of Khudkasht or a sub-tenant, shall, as froni the date of
vesting, be the khatedar tenant of the land comprised in his holding, unless
he has acquired Khatedari rights therein before such date, and shall, as from
the date of vesting, pay to the State Government; until rents are settled in
accordance with the provisions of the Rajasthan Land Revenue Act, 1956
D (Rajasthan Act No.15 of 1956), by way of rent therefor the same amount as
he had been paying to the Zamindar or Biswedar immediately before such
date but not exceeding twice the land revenue payable in respect thereof.
Sub-section(2) of the said section lays down that upon a Zarnindar or
Biswedar becoming a Malik of his Khudkasht land under section 29, every
E tenant of such Khudkasht shall be the sub-tenant of the land in his occupation
holding under and from such Malik.
The expression 'Khudkasht' is defined in section 5(23) of the Act to
mean " land in any part of the State cultivated personally by an estate-holder
F and shall include -
(i) land recorded as khudkasht, sir, havala, niji-jot, gharkhed in
settlement records at the commencement of this Act in accord-
ance with law in force at the time when such record was made,
and
G
(ii) land allotted after such commencement as khudkasht under any
law for the time being in force in any part of the State.
In Section 5(46) 'Zamindar' is defined to mean a person on whom a
H village or portion of a village in any part of the State is settled on the
/
BIR SINGH v. PYARE SINGH [D.P. MOHAPATRA, J.] 119
Zamindari system and who is recorded as such in the record of rights and A
shall include a proprietor as defined in clause (a) of section 2 of the Madhya
Bharat Zamindari Abolition Act, Samvat 2008 (Madhya Bharat Act of 1951),
if any, in the Sunel area.
Section 43 contains the provisions regarding mortgage. The portions of
B
the said section relevant for the purpose of the case are extracted
below:
"43. xxx xxx xxx
(3) A usufructuary mortgage under sub- section (2) shall, upon the C
expiry of the period mentioned hereinbefore, be deemed to have been
satisfied in full without any payment whatsoever by the mortgagor,
and the mortgage debt shall be deemed to have been extinguished and
the mortgaged land redeemed and the possession thereof shall be
delivered by the mortgagee to the mortgagor free from all encum- D
brances.
(4) A usufructuary mortgage of any land made before the commence-
ment of this Act shall, upon the expiry of the period mentioned in the
mortgage deed or twenty years from the date of execution thereof,
whichever period is less, be deemed to have been satisfied in full
-- without any payment whatsoever by the mortgagor and the mortgage
debt shall accordingly be deemed to have been extinguished and
thereupon the mortgaged land shall be redeemed and possession
thereof shall be delivered to the mortgagor free from all encum-
brances. F
Section 183 of the Act under which the suit was filed reads as follows:
"183. Ejectment of certain trespassers (1) Notwithstanding anything
to the contrru.y in any provision of this Act, a tresspasser who has
taken or retained possession of any land without lawful authority shall G
be liable to ejectment, subject to the provision contained in sub-
section(2), on the suit of tJ:i,e person or persons entitled to eject him,
and shall be further liable to pay as penalty for each agricultural year•.
during the whole or any part whereof he has been in such possession,
a sum which may extend to fifteen times the annual rent. H
120 SUPREME COURT REPORTS [2000] 2 S.C.R.
A (2) In case of land which is held directly from the State Government
or to .which ilie State Government acting through the Tehsildar, is
entitled to admit the trespasser as tenant, the Tehsildar shall proceed
in accordance with the provisions of section 91 of the Rajasthan Land
Revenue Act, 1956 (Rajasthan Act 15 of 1956)."
B
On a reading of the provisions of the Zamindari Abolition Act noted
above it is clear that a Zamindar who is in possession/occupation of K.hudkasht
land on the date of vesting of the estate becomes a K.hatedar tenant on
abolition of the Zamindari right under section 29 of the Zamindari Abolition
Act. Under the said section a Zamindar becomes a Malik of the K.hudkasht
c land in his occupation and as Malik he shail be entitled to all the rights
conferred and all the liabilities imposed on a K.hatedar tenant by or under the
Act. It follows as a corollary that if the Zamindar is not in occupation of the
K.hudkasht land on the date of vesting he is not entitled to claim K.hatedari
right in the land. The scheme behind this provision is that if a Zamindar or
D Biswedar is in actual occupation of cultivable land on the date of abolition
of his Zamindari right then he should continue to be in possession of such
land. This is in accordance with the object of bringing about agrarian reforms
by giving the land to the person in cultivating possession of the land. If. the
Zamindar is not in occupation of the K.hudkasht land on the date of vesting
then such 'land' vests in the State along with the other 'lands' subject to,,the
E provisions in the Zamindari Abolition Act. In respect of such land Zamindar
is not entitled to claim any right of possession and consequentially is not
entitled to maintain a suit for recovery of possession of the land from any
other person. In the case of Budha v. Amilal (supra) a Division Bench of this
Court interpreting the provisions of sections 29, 5(2)(a), (b),G), 5(4) and 2(6)
F of the Zamindari Abolition Act and sections 5(23)(1) and (25) of the Rajasthan
Tenancy Act held :
"Even if it is assumed that the lands in dispute have to be treated as
K.hudkasht lands of the appellant by virtue of clause (I) of the
inclusive part of the definition of 'K.hudkasht' contained in Section
G
5(23) of the Rajasthan Tenancy Act, the appellant cannot succeed in
his claim that he has acquired K.hatedari rights in respect of those
lands on the basis of the provisions contained in sub- section (4) of
Section 5 and sub-section (1) of Section 29 of the Act. Sub-section
(4) of Section 5 provides that notwithstanding anything contained in
H sub-section (2) of Section 5 the Zamindar or Biswedar shall subject
BIR SINGH v. PYARE SINGH [D.P. MOHAPATRA, J.] 121
- to the provisions of Section 29, continue to retain the possession of A
his Khudkasht, recorded as such in the annual registers before the date
of vesting. The words "continue to retain the possession", imply that
lands which are recorded as Khudkasht in the annual register bt:fore
the date of vesting should be in possession of the Zamindar or
Biswedar on the date of vesting. If he is in possession of such lands
B
he can continue to retain the possession of the same subject to the
provisions of Section 29. Sub-section(!) of Section 29 prescribes that
as from the date of vesting of an estate, the Zamindar or Biswedar
thereof shall be a malik of any Khudkasht land in his occupation on
such date and shall, as such malik, be entitled to all rights conferred
and the subject to all the liabilities imposed on a Khatedai tenant by c
or under the Rajasthan Tenancy Act. Under this provision Khatedari
righ~s have been statutorily conferred on a Zamindar or Biswedar as
from the date of the vesting of the estate in respect of Khudkasht lands
in the occupation of such Zamindar or Biswedar on such date. The
words "in his occupation on such date" postulates that the lands,
D
though Khudkasht, should be in the occupation of the Zamindaror
Biswedar on the date of vesting of the estate. It would thus appear
that in view of sub-section (4) of Section 5 and sub-section(!) of
Section 29 of the Act the mere fact of recording of the land as
Khudkasht in the settlement records on the date of vesting would not
be enough for a Zamindar or Biswedar to acquire Khatedari rights E
over the said lands; the Zamindar or Biswedar should be in posses-
---;;-
sion/occupation of the said lands on the date of vesting of the estate
.._ under the Act. The possession/occupation envisaged by sub-sec-
tion(4) of Section 5 and sub-section(!) of Section 29 of the Act is
actual possession/occupation and the possession of a mortgagor F
~- through the mortgagee cannot be held to be in possession or occu-
pation as postulated in sub-section(4) of Section 5 and sub-section (1)
~ of Section 29 of the Act.
"In the present case the appellant has come forward with a specific
case in the plaint that the defendant is in possession of the lands in G
' 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 vesting of the estate of the appellant under the Act. The
appellant cannot, therefore, claim Khatedari rights in respect of the
lands in dispute." H
122 SUPREME COURT REPORTS [20001 2 s.c.:R.
A On consideration of the facts and circumstances of the case as revealed
from the materials on record and the relevant provisions of the Zamindari
Abolition Act it is our considered view that the principles laid down and the
observations made in Buclha V. Amilal (supra) apply in all force to the present
case. We are also in respectful agreement with the principles laid down in the
said decision. Therefore, the appellants cannot be said to be 'khatedar tenants'
B
of the land in dispute. The first question formulated earlier is answered in the
negative and in view of that answer the further question does not arise for
consideration. The High Court was right in dismissing the suit. The appedl
is dismissed. No costs.
C N.J. Appeals dismissed.
1'
I
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