Mukhram Singh And Others vs The D.D.C. Jaunpur And Others

Heard Sri K.R. Sirohi, Senior Advocate, assisted by Sri U.B. Singh, for the petitioners and Sri Vishnu Kumar Singh, for the respondents.

The writ petition has been filed against order of Deputy Director of Consolidation dated 27.05.1974, allowing the revision and setting aside the orders of Consolidation Officer and Assistant Settlement Officer Consolidation, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the Act").

The dispute between the parties relates to the land recorded in khatas 37 and 38 of village Begrawa, tahsil Kerakat, district Jaunpur. In basic consolidation year, khata 37 was recorded in the names of Mukhram and others (the petitioners) and khata 38 was recorded in the names of Kalika and others. 19 objections were filed in respect of land of khata 37 and 7 objections were filed in respect of khata-38. After order of Consolidation Officer, only two appeals were filed by Ram Adhar Singh and others (respondents-2 to 60) (hereinafter referred to as the respondents), as such details of other objections are not required for the purposes of this writ petition.

Ram Adhar Singh and others (the respondents) filed their objections claiming 1/2 share in both the khatas. The respondents stated that disputed land belonged to mohal Ram Singh, patti Kishore Singh and Harnam Singh and Sarnam Singh, who were real brothers, were sir and khudkast holders of disputed land. Basti Singh, the only son of Harnam Singh died during his life time. After death of Harnam Singh, his widow Smt. Talasi Kuer executed a mortgage deed dated Quar badi-2, Sambat 1892 (corresponding to the year 1835) in respect of 3/4 share of her 1/2 share in the disputed land in favour their predecessors. After her death, her daughter-in-law Smt. Launga Kuer widow of Basti Singh executed a mortgage deed dated Quar badi-4, Sambat 1899 (corresponding to the year 1842) in respect of 1/4 share of her 1/2 share in the dispute land in favour their predecessors. Smt. Launga Kuer executed another usufructuary mortgage deed dated Quar sudi, Sambat 1904 (corresponding to the year 1847) in respect of her 1/2 share in the dispute land in favour their predecessors, acknowledging earlier mortgage deeds of Sambat 1892 executed by her mother-in-law and Sambat 1899 executed by her and handed over possession to them. Since then, they were in possession of the disputed land. Right of redemption of the mortgagors Kalika Singh and others (collateral of Harnam Singh) has become time barred. After date of vesting they have acquired bhumidhari right over it. Sale deed executed by Kalika Singh and others in favour of the petitioners dated 21.07.1954 was valid for their 1/2 share only. On these allegations, they claimed 1/2 share in both the khatas.

The petitioners contested the objection of the respondents and filed an objection, for recording their names over land of khata 38, on the basis of sale deed dated 21.07.1954, executed by Kalika Singh. They claimed land of khata-37, (over which their names were recorded in basic consolidation year), on the basis of mortgage deed executed by Sarnam Singh, who had 1/2 share in the entire land, in favour of their ancestors and their continuous possession over it since then. They denied execution of mortgage deeds by Smt. Talasi Kuer and Smt. Launga Kuer in favour of predecessors of the respondents as alleged by them. They took plea that mortgage, if any, had already been redeemed and the predecessors of the respondents did not claim any right on its basis for at least last 80 years nor they were in possession of any part of the disputed land.

Consolidation Officer, by order dated 30.03.1965, held that the respondents filed some objections on the basis of their cultivatory possession and in some objections, they claimed 1/2 share in entire disputed land on the basis of mortgage deeds dated Quar badi-2, Sambat 1892, Quar badi-4, Sambat 1899 and dated Quar sudi, Sambat 1904. They were not sure in respect of their right and their objections are vague and baseless. The petitioners derived 1/2 share in disputed land on the basis of mortgage executed by Sarnam Singh, who was co-sharers of 1/2 share and their names were recorded on its basis in basic consolidation record of khata-37. They claimed 1/2 share on the basis of sale deed dated 21.07.1954, executed by Kalika Singh and others, who were sir and khudkast holders and after date of vesting they had become its bhumidhar and recorded as such in revenue record. On these findings, he dismissed the objections of the respondents and allowed the objections of the petitioners and determined shares of the petitioners among them. The respondents filed two appeals (registered as Appeal Nos. 989 and 1063) from the aforesaid order. The appeals were consolidated and heard by Assistant Settlement Officer Consolidation, who by order dated 25.06.1965 held that in 1864 A.D., names of Durga Singh and Devi Singh (predecessors of the respondents) were recorded as the mortgagees over the disputed land. But in second Settlement year 1309 F, there was no entry of mortgagees although on several plots, the predecessors of the respondents were recorded either as sajhi or as qabiz. A report was made by patwari on 30.06.1941, to record the names of the respondents as mortgagee. On its basis their names were directed to be recorded as mortgagee by Sub-Divisional Officer. The predecessor of the petitioners filed a suit for deleting the entry of their names, which was later on dismissed as withdrawn as entry of the names of the respondents had already been deleted in the meantime. The names of respondents were not recorded as the mortgagee for about 80 years continuously, which shows that the mortgages might have been redeemed. Smt. Talasi Kuer and Smt. Launga Kuer had life interest only as such they could have mortgaged only for their life time. No right can be granted to the respondents on the basis of these mortgages. On these findings, he dismissed the appeals. The respondents filed two revisions (registered as Revision Nos. 557 and 559 of 1965) from the aforesaid orders. Both the revisions were consolidated and heard by Deputy Director of Consolidation, who by order dated 17.02.1966, held that the names of Durga and Devi, predecessors of the respondents were recorded as mortgagee in khatauni 1271 F. But their names were not recorded in settlement khatatuni 1290 F, 1309 F and 1334 F i.e. for last 80 years, which raised presumption that mortgage had already been redeemed. The respondents were liable to adduce strong evidence to rebut this presumption. They could not prove that their mortgagee''s right continued till date of vesting. After abolition of zamindari, they did not claim compensation as given to zamindars. On these findings, he dismissed both the revisions.

The respondents filed a writ petition (registered as Civil Misc. Writ petition No. 1916 of 1966) against the aforesaid orders. This Court, by judgment dated 23.08.1972, held that the names of the respondents or their predecessors were recorded in khatauni 1341 F and continued up to 1355 F as such consolidation authorities were not justified in holding that the names of the respondents were not recorded for last 80 years. Deputy Director of Consolidation ought to have considered the case of the respondents on the basis of mortgage deeds, properly. On these findings, writ petition was allowed and the order of Deputy Director of Consolidation was set aside and the matter was remanded to Deputy Director of Consolidation to decide the revision afresh. After remand, Deputy Director of Consolidation, by his judgment dated 27.05.1974, held that from the evidence on record, it was proved that the respondents were descendants of Durga and Devi, the original mortgagees of Smt. Talasi Kuer and Smt. Launga Kuer, who admittedly had 1/2 share in disputed land. The names of Durga and Devi were recorded in khatauni of the year 1864 AD corresponding to 1271 F. The mortgage deeds executed by Smt. Talasi Kuer and Smt. Launga Kuer were prior to coming into force of Indian Registration Act, 1864 as such it cannot be ignored on the ground of being unregistered. On various plots, the ancestors of the respondents were recorded as sub-tenants in subsequent years and these entries were corrected in 1341 F and their names were recorded as the mortgagees. It is only on the basis of ex-parte decree of Civil Court in O.S. No. 34 of 1944, their names were deleted but on its basis it cannot be said that their right had come to an end. There is no evidence on record to prove that mortgage deeds dated Quar badi-2, Sambat 1892, executed by Smt. Talasi Kuer and Quar badi-4, Sambat 1899 and Quar sudi, Sambat 1904, executed by Smt. Launga Kuer were ever redeemed or mortgage money was returned to ancestors of the respondents. From the revenue receipts also possession of the respondents is proved. After date of vesting the respondents have become bhumidhar of the disputed land. On these findings, the revisions were allowed and the names of the respondents were directed to be recorded over 1/2 share of disputed land of both the khatas. Hence this writ petition has been filed.

The counsel for the petitioners, without disputing findings of Deputy Director of Consolidation that the respondents were mortgagees of 1/2 share in disputed land, submitted that Deputy Director of Consolidation has illegally held that after date of vesting the respondents had become bhumidhar of disputed land. He submitted that right of the mortgagee of sir and khudkast holdings had been extinguished, under Section 14 and sir and khudkast holders had been conferred bhumidhari right under Section 18 of U.P. Act No. 1 of 1951 as held by Supreme Court in Thakur Prasad Vs. Raj Karan AIR 2003 SC 1365. He submitted that even if right of redemption of mortgage has become time barred then also status of the mortgagees will remain as mortgagees as held by Full Bench of Punjab & Haryana High Court in Ram Kishan Vs. Sheo Ram, AIR 2008 P & H 77 (FB). Full Bench of this Court in Balwant Vs. DDC and others, AIR 1975 All 295 (FB) held that possession of the mortgagee whose right has been extinguished under Section 14 of U.P. Act No. 1 of 1951, on or after date of vesting is not adverse but is permissive and period of limitation for suit for his ejectment under section 209 of the Act would commence to run from the date of demand for possession and not from the date of vesting. Right of the respondents, having been extinguished under Section 14 of U.P. act No. 1 of 1951, their names were liable to be deleted from the land in dispute in consolidation operation. The order of Deputy Director of Consolidation is illegal and liable to be set aside.

In reply to the aforesaid arguments, the counsel for the respondents submitted that this Court in Lakshmi Narain Vs. DDC and others, 1985 RD 435, held that if right of redemption had become time barred on the date of vesting, then right of mortgagee would not extinguished under Section 14 of U.P. Act No. 1 of 1951. They being in possession over the disputed land acquired sirdari right.

I have considered the arguments of the counsel for the parties and examined the record. It is not denied that Kalika Singh and others were recorded as sir and khudkast holders over 1/2 share of the disputed land and after date of vesting they had become its bhumidhar under Section 18 of U.P. Act No. 1 of 1951. In the absence of any male lineal descendant to Smt. Launga Kuer, Kalika Singh and others would inherit share of Launga Kuer, being collateral of Harnam Singh as well as by way of survivorship under Hindu law as applicable to the parties as such they inherited mortgagor''s right of Smt. Launga Kuer in disputed land. Kalika Singh and others executed a sale deed dated 21.07.1954 in favour of the petitioners, whose names were recorded on its basis over land transferred to them. The petitioners claimed 1/2 share in disputed land on the basis of sale deed dated 21.07.1954, executed by Kalika Singh and others and remaining 1/2 share on the basis of mortgage executed by Sarnam Singh in favour of their predecessor and their names were recorded in basic consolidation year over khata-37. Kalika Singh and others did not set up any claim either in khata 37 or in khata 38, i.e. disputed land during consolidation. As such the petitioners are on better footing than of the respondents as no one was claiming land of the share of Sarnam Singh of whose the petitioners were mortgagees and land of Harnam Singh was claimed on the basis of sale deed dated 21.07.1954, executed by his collateral who were his heirs.

First of all the arguments raised by the counsel for respondents that right of redemption of the mortgagor has become time barred, is being considered. While approving Full Bench decision of Punjab & Haryana High Court in Ram Kishan'' s case (supra) a three Hon''ble Judges Bench of Supreme Court in Singh Ram v. Sheo Ram, (2014) 9 SCC 185, after considering Section 60 and 62 of Transfer of Property Act,1882 and Article 61 of Limitation Act, 1963, held as follows:- "Section 60. Right of mortgagor to redeem.-At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to retransfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:

Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a court.

Right of usufructuary mortgagor to recover possession.-In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee-

(a) where the mortgagee is authorised to pay himself the mortgage money from the rents and profits of the property, - when such money is paid;

(b) where the mortgagee is authorised to pay himself from such rents and profits or any part thereof a part only of the mortgage money, when the term (if any) prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in court hereinafter provided."

Limitation Act, 1963.-

"Article 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.

We, thus, hold that special right of usufructuary mortgagor under Section 62 of the TP Act to recover possession commences in the manner specified therein i.e. when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by the mortgagor. Until then, limitation does not start for the purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage."

A three Hon''ble Judges Bench of Supreme Court in Achaldas Durgaji Oswal v. Ramvilas Gangabisan Heda, (2003) 3 SCC 614, after reviewing earlier judgments on this subject held that the protection of a mortgagor against all attempts to defeat or clog his right of redemption involved the creation of subsidiary rules of equity, invalidating the various contrivances which ingenious conveyancers devised. These rules are sometimes summed up in a maxim of equity ''once a mortgage always a mortgage''. This means that once a contract is seen to be a mortgage no provision in the contract will be valid if it is inconsistent with the right of the mortgagor to recover his security on discharging his obligations. Provisions offending against the maxim may either touch the contractual terms of redemption, rendering the right to redeem illusory, or they may touch only the equitable right to redeem after the passing of the contract date, hampering the exercise of the right. Provisions of the latter kind are termed ''clogs'' on the equity of redemption. The provisions touching the contractual right to redeem are not properly to be classed as clogs on the equity of redemption. But it is evident that such provisions are in substance clogs on the equity of redemption, since they tend to defeat it altogether."The right of redemption of a mortgagor being a statutory right, the same can be taken away only in terms of the proviso appended to Section 60 of the Act which is extinguished either by a decree or by act of parties. Admittedly, in the instant case, no decree has been passed extinguishing the right of the mortgagor nor has such right come to an end by act of the parties.

Section 14 of U.P. Act No. 1 of 1951 is quoted below:- 14. Estate in possession of a mortgagee with possession.-(1) 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 vesting, cease to have any right to hold or possess as such any land in such estate.

(2) Where any such land was in the personal cultivation of the mortgagee on the date immediately proceeding the date of vesting-

(a) if it was sir or khudkasht of the mortgagor on the date of the mortgage,the same shall, for purposes of Section 18 be deemed to be the sir or khudkasht of the mortgagor or his legal representative;

(b) if it was not sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee shall, subject to his paying to the State Government within six months from the date of vesting an amount equal to five times the rent calculated at hereditary rate applicable on the date immediately proceeding the date of vesting, be deemed, for purposes of Section 19, to have held such land on the date aforesaid as a hereditary tenant thereof at the said rate of rent;

Provided that if the mortgagee fails to pay the amount aforesaid within the time allowed, he shall thereupon lose all rights in such land which shall be deemed to be vacant land and he shall be liable to ejectment 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.

Explanation(I).- For the purposes of this section a mortgagee in possession includes a thekedar of his rights as mortgagee in the land.

Explanation(II).-Where any land has been mortgaged with possession and the mortgagor makes a second or subsequent mortgage of such land in favour of the same or different person, the expression "on the date of the mortgage" shall mean the date of the mortgage in pursuance of which the mortgagor first transferred possession to mortgagee."

A Full Bench of this Court in Balwant Vs. DDC and others, AIR 1975 All 295 (FB) held that possession of the mortgagee whose right has been extinguished under Section 14 of U.P. Act No. 1 of 1951, on or after date of vesting is not adverse but is permissive and period of limitation for suit for his ejectment under section 209 of the Act would commence to run from the date of demand for possession and not from the date of vesting. This view has been affirmed by Supreme Court in Pratap Singh v. Dy. Director of Consolidation, (2000) 4 SCC 614, holding that 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. 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.

Supreme Court in Thakur Prasad v. Raj Karan, AIR 2003 SC 1365, held that 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 aforementioned 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.

The respondents specifically denied that mortgage money was ever returned to them or their predecessors. In the absence of satisfaction of mortgage money, limitation for redemption of mortgage would not start to run. As such the arguments that right of redemption of the mortgagors had become time barred, is not liable to be accepted. View taken by single Judge of this Court in Lakshmi Narain Vs. DDC and others, 1985 RD 435, is not liable to be accepted in view of judgment of Full Bench of this Court in Balwant''s case(supra). The claim of the petitioners during consolidation operation is neither barred by limitation under Transfer of Property Act, 1882 read with Limitation Act, 1908 nor it is barred under U.P. Act No. 1 of 1951 or Rules, 1952 framed therein.

In view of the aforesaid discussions, the writ petition succeeds and is allowed. The order of Deputy Director of Consolidation dated 27.05.1974 is set aside. The orders of Consolidation Officer dated 30.03.1965 and Assistant Settlement Officer Consolidation, dated 25.06.1965 are upheld.