Smt. Ram Kaur and Others vs Commissioner, Agra Division and Others

Satish Chandra, J.—Both parties appear to have been co-sharers in the proprietary rights. According to the Appellants, both the parties were co-sharers in the sir Khata. The Respondents'' ancestor mortgaged the proprietary rights with the Appellant''s ancestor. The question is whether, on the date of vesting, the mortgagees had any right to retain possession on the ground that, since the mortgagor did not claim ex-proprietary rights, the mortgagee-co-sharers became the exclusive sir-holder of the sir Khata and as such Section 14, UP ZA Act, was not applicable.

Section 14 applies to every mortgagee in possession of an estate or a share therein. This was the case here. Prima facie, Section 14 is applicable. Section 14 does not make any exception in the case of a mortgage in favour of a co-sharer in the Sir Khata, when the mortgage is of an estate or a share therein. Hence, the applicability of Section 14 cannot be excluded on this factual ground. Under Clause (a) of Section 14(2), land is deemed to be the sir or khudkasht of the mortgagor or his legal representative, if it was sir or Khudkasht of the mortgagor on the date of the mortgage. It is not disputed that on the date of the mortgage, the Respondents'' ancestor was the sir-holder of the land in dispute. To the extent of their share in the sir Khata, the Respondents would be deemed to be bhumidhars of the holding. The Appellants, who were mortgagees in possession, cannot any longer profess to retain the land as if it was their sir, in relation to the share of the Respondents in the sir khata. The learned Single Judge took a correct view of the legal position.

The appeal has no merits and is accordingly dismissed with costs.