JUDGMENT
B.D. Singh, J.
1. This appeal by the defendants arises out of a suit which was filed bv Dulhin Suraya Mukha Kuar, the respondent, under Order XXI. Rule 63 of the Code of Civil Procedure inasmuch as the claim of the defendants made under Order XXI, Rule 58. C. P. C. in Mis. Case
No. 78 of 1956 was allowed against the plaintiff. The suit was filed for declaration of title and recovery of possession of 3 bighas 6 kathas and 9 dhurs of land in khata No. 148, Khewat No. 1/18 situated in village Arana, District Saran. In the suit the plaintiff also prayed for a declaration that the defendants had acquired no occupancy right in the suit land.
2. The material facts giving rise to this appeal may be summarised as follows: —
One Brij Behari Sahay of the aforesaid village had a proprietary interest of 8 annas 7 pies 4 karants in the aforesaid khewat bearing old tauzi No. 1310 and new tauzi No. 8154. This proprietary interest formed a separate patti itself. In the said khewat there were 10 bighas, 13 kathas and 4 dhurs of bakasht land recorded under khata No. 148 in the R. S. Khatian. He died leaving behind three sons, namely, Harihar Prasad, Bishundeo Narayan and Govind Narayan who separated among themselves. Harihar Prasad died leaving behind his widow Mosammat Maina Kuer whereas Bishundeo Narayan died leaving behind three sons, namely, Bisheshwar Prasad (defendant No. 1), Akhileshwar and Bhuneshwar (defendant No. 2). This defendant No. 2 was subsequently adopted by Govind Narayan. his uncle, as he had no issue of his own. For easy reference, the genealogical table of the family is also noted below:–
BRIJ BEHARI SAHAY
|
_______________________________________________
| | |
Harihar Pd. Biashundeo Narayan Govind Narayan
=Mt. Maina Kuer. |
___________________________________
| | |
Bisheshwar Pd. Akhileshwar Bhuneshwar
defendant No. 1 Defendant No. 2
(adopted by Govind Narayan).
3. On 6-2-1923 Mosammat Maina Kuer, Bisheshwar Prasad (defendant No. 1) and Bishundeo Narayan for self and as guardian of Akhileshwar and Bhuneshwar (defendant No. 2) executed a zarpeshgi deed for Rs. 7.250/- in favour of Pir Moham-mad Mian, Qurban Ali and Abdul Hai in respect of their entire proprietary interest in the said village Arana including the aforesaid bakasht lands. Under the terms of the zarpeshgi deed the mortgagees were not entitled to make any settlement of the bakasht lands. On ll-G-1926, Maina Kuer, Bisheshwar (defendant No. 1) and Bishundeo Narayan for self and as guardian of Akhileshwar and Bhuneshwar executed a simple mortgage bond for Rs. 1,200/- in favour of Pir Mohammad in respect of the entire zarpeshgi property. Subsequently on 3-8-1928 Bishundeo Narayan alone executed a mortgage bond in favour of one Mukhlal Singh in respect of his own share to the extent of 2 annas 8 pies.
In 1934 Durga Singh and the other sons and the heirs of Mukhlal Singh filed mortgage suit No. 196/209 of 1934, on the basis of the simple mortgage bond of 1928 and obtained a decree against defendant No. 1 and his brother Akhileshwar after contest and thereafter started Execution Case No. 260 of 1937 and purchased 2 annas 8 pics proprietary interest including bakasht lands in Tauzi No. 8154 on 7-7-37 and obtained delivery of possession on 11-9-38. During the pendency of the execution case, tauzi No. 8154 including the patti of 8 annas 7 pies share was auction-sold on 5-6-37 in revenue sale and was purchased by Kanhaiyaji, father-in-law of defendant No. 2 who obtained delivery of possession on 27-6-39. According to the plaintiff’s case, this revenue sale was subject to the mortgage encumbrance of Durga Singh and others who auction-purchased 2 annas 8 pies interest on 7-7-37 in execution of their mortgage decree.
The plaintiff claims to have purchased 2 annas 8 pies interest out of 8 annas 7 pies, the proprietary interest of late Bri.j Behari Sahay from said Durga Singh by a registered sale deed dated 11-4-1939 (Ext. 11).
4. In 1940 Pir Mohammad instituted mortgage suit No. 74 of 1940 on the basis of the mortgage deed dated 11-6-1926 against defendants 1 and 2 and Akhilesh war and others. In that suit Kanhaiyaji, the plaintiff and others were impleaded. But according to the plaintiff no summons of the mortgage suit was served on her and according to her a collusive compromise was arrived at between Pir Mohammad and defendant Nos. 1 to 9 of that suit and some false recital was incorporated in that “compromise petition. However, in the said mortgage suit an ex parte decree was passed against the plaintiff and Gopa] Das on 25-9-40 for a total sum of Rupees 2,678-3-9. However, in 1943, the plaintiff approached Pir Mohammad and paid her share of the decretal dues and a satisfaction petition to that effect was also filed.
In the same year Pir Mohammad started an execution case for the realisation of the remaining decretal dues and put on sale 5 annas 11 pies and odd share excluding 2 annas 8 pies share purchased by plaintiff from Durga Singh and one Hafiz Khairati auction-purchased the aforesaid
5 annas 11 pies and odd share on 31-1-44. The plaintiff then filed Partition Suit No. 119 of 1953 for partitioning her shire of 2 annas 8 pies and for allotment of a separate takhta and khas possession over the bakasht land of R. S. khata No. 148. In that partition suit Sheikh Hafiz Khairati, Kanhaiyaji, Qurban Ali and heirs of Pir Mohammad and Abdul Hai were also impleaded. But the defendants did not contest the suit and the said partition suit was decreed ex parle against them.
Subsequently, four of the aforesaid zarpeshgidars filed an application under Order IX, Rule 13, C. P. C. for setting aside the ex parle decree and for the restoration of the suit. But the plaintiff paid off her share of the zarpeshgi dues to them and redeemed her share through two registered receipts dated the 22nd and 28th of April, 1955 and in the result the application under Order IX, Rule 13, C. P. C. was allowed to he dismissed. A preliminary decree was passed on 8-8-1954 in the partition suit of the plaintiff and commissioner was appointed for partitioning the plaintiff’s share for 2 annas 8 pies out of the patti of 8 annas 7 pies and odd including bakasht and gairmazrua land and the commissioner also carved out a separate takhta for the share and allotted 3 bighas
6 kathas 9 dhurs out of the bakasht of khata No. 148 to the plaintiff. The commissioner’s report was confirmed without objection and a final decree was prepared in Partition suit No. 119 of 1953. The defendants subsequently filed a claim case
under Order XXI, Rule 58. C. P. C. which was numbered as Misc. Case No. 78 of 1956, with the allegation that they were in possession of the entire lands of R. S. Khata No. 148 as occupancy raiyats on the strength of permanent settlement in their favour by the zarpeshgidar of the entire 8 annas 7 pies and odd and that claim of the defendants was allowed on 18-4-1957 and against this order the plaintiff filed Civil Revision No. 852 of 1957 before this Court but the same was dismissed summarily on 28-10-57. Hence, the plaintiff has filed the suit, which has given rise to this appeal, for the declaration noted above.
5. On the pleadings of the parties various issues were framed by the trial Court. Of them the main issue which arise for consideration in this appeal are as follows: —
(1) Has the plaintiff got any cause of action for the suit?
(2) Whether the plaintiff had acquired any title under her sale deed from Durga singh and others?
(3) Was the plaintiff entitled to khas possession over the suit land?
(4) Whether the defendants have got any right in the holding of the suit?
(5) Whether the compromise decree passed in Mortgage suit No. 74 of 1940 was valid and binding on the plaintiff? Both the courts below after considering the entire evidence on the record adduced by the parties have decided the case in favour of the plaintiff and against the defendants. Hence this appeal has been filed by the defendants.
6. Mr. Jaleshwar Prasad, learned counsel for the appellants, has urged the following three points of law:–
(1) The courts below have erred in holding that the defendants have not acquired occupancy right in the disputed land.
(2) According to learned counsel, the suit is barred by limitation as the defendants have perfected their title by adverse possession and the plaintiff had not been in possession within the period of limitation. Therefore, according to him, the courts below have also erred in holding that the plaintiff’s suit is not barred on the principle of adverse possession.
(3) The zamindari of the outgoing inter-mediaries including the plaintiff vested in the State of Bihar by the general notification dated 1st January, 1956 and she was not in possession on the date of vesting as held by the courts below and, therefore, she had no right and title left on 2-1-58 when she filed the present suit.
To support his contention on the first point learned counsel has mainly relied upon Exts. J and J (1). The latter is the compromise petition in Mortgage suit No. 74 of 1940 and the former is another compromise petition filed in Title Suit No. 259 of 1939. Ext. D (1) is the order
sheet of Mortgage suit No. 74 of 1940 and the relevant order passed after the said compromise (Ext. J/1) was filed, is as follows:–
“That the compromise be recorded and the suit be decreed in terms thereof against defendants 1 to 9 and ex parte in the same terms against defendants 10 and 11.”
In the said mortgage suit defendant No. 11 was the present plaintiff (Surya Mukha Kuer). Therefore, learned counsel has urged that the aforesaid compromise petition and the said order are binding upon the plaintiff. According to him, in the compromise petition she has clearly recognised the status of the defendants as occupancy raiyats. He has submitted that the Courts below have erred in holding that they are not binding upon the plaintiff. I do not agree with the contention of learned counsel. In my opinion, both the Courts below have given valid reasons for holding as to why these compromise petitions are not binding on her and also as to why the case of the defendants regarding their occupancy right on the disputed lands is not acceptable. The defendants’ case as contained in paragraphs 39 to 43 of the written statement was that they had been occupancy raiyats of Khata No. 148 from the year 1923 through the settlement from the zarpeshgidar, at first on a rental of Rs. 104/- a year and subsequently the rent was reduced to Rs. 40/- by compromise in Mortgage Suit No. 74 of 1940. Further on, they clarified their case by saying that by compromise aforesaid no new tenancy was created; rather it ratified and confirmed the old dormant tanancy. But at the time of trial they further made their case by leading evidence that by virtue of the compromise kaimi tenancy was created. Thus, the defendants have gone on changing their case from stage to stage. The Courts below have found that when the first mortgage was created in 1923 there was nothing in the mortgage bond creating the tenancy of the lands in question. There is nothing at all to indicate that the bakasht land was settled with the mortgagors on an annual jama of Rs. 104 so much so that the trial Court has also taken into consideration the evidence of D. Ws. 1 and 4 who have stated on oath that the zarpeshgidar (mortgagee) did not at all get possession over the zarpeshgi lands which were retained by the mortgagors and Rs. 104/- was agreed to be paid by way of rent.
Therefore, it is clear that there was no settlement or creation of any tenancy at the time, rather the mortgagors had retained the lands agreeing to pay Rs. 104 in lieu of interest. In the said mortgage deed, on the contrary, there is a clear stipulation that the mortgagees were not cntillcd to settle with other persons the
bakasht lands for more than 12 years so that he could acquire occupancy right in it. Even in those cases where there is no specific stipulation in the mortgage bond the operation of the lease cannot extend beyond the period of subsistence of the mortgage, as it has been held by the Supreme Court in Harihar Prasad Singh v. Deonarain Prasad, AIR 1956 SC 305 at 312 as follows:–
“The law is that a person cannot confer on another any right higher than what he himself possesses, and therefore, a lease created by a usufructuary mortgagee would normally terminate on the redemption ot the mortgage. Section 76 (a) enacts an exception to this rule. If the lease is one which could have been made by the owner in the course of prudent management, it would be binding on the mortgagors, notwithstanding that the mortgage has been redeemed. Even in such a case, the opera-lion of the lease cannot extend beyond the period for which it was granted.”
Similar view was taken by their Lordships of the Supreme Court in Asa Ram v. Mst. Ram Kali reported in AIR 1958 SC 183 at 185. The Courts below have also referred to the two compromise petitions, Exts. J and J (1), and they have fully discussed and given reasons as to why they are not acceptable. The recital in the said compromise petitions shows that the defendants had already got occupancy right in the land and as such no new tenancy was being created under the same. In both of them the recital is that the rental of Rs. 104/- was reduced to Rupees 40/- from the date of the compromise and further that defendant No. 2 was to continue as before (badastur sabiq) in cultivating possession of the lands as occupancy tenant. The learned courts below have held that these compromise petitions are not binding upon the plaintiff because she has not signed the compromise petitions nor they have been signed by her duly appointed lawyer.
The courts below have given additional ground for those compromise petitions not being binding upon the plaintiff as the compromise petitions so recorded were beyond the scope of the two suits in which they have been recorded. According to the courts below the creation of the tenancy in favour of the defendants was a matter entirely extraneous to the subject matter of the dispute in the two suits. Therefore, they were not valid in the absence of registration under Section 17 of the Registration Act. Mortgage suit No. 74 of 1940 was filed on the basis of the simple mortgage bond executed by Maina Kuer and others in favour of Pir Mohammad. The simple relief in the suit was that the mortgage dues, principal and interest, were to bo realised by the sale of the mortgage properly. The property mortgaged was
8 annas 7 pies and odd milkiat share appertaining to khewat No. 1/18. Therefore, the only subject matter of the suit was whether the hypothecated properties could be sold to satisfy the mortgage dues. The question whether any portion of the bakasht land appertaining to the aforesaid share had been settled with the defendants or was coming in their possession, was evidently beyond the scope of the suit and wholly extraneous to it. Similarly, the terms relating to the reduction of the rent etc. were extraneous. If the partis made any stipulation in the compromise petition (Ext. 1/1) regarding the settlement of the bakasht land or reduction of rent etc, that evidently could not form the subject matter of the suit nor could (it) be then said to relate to the matter in suit.
Similarly, Title Suit No. 259 of 1939 arose under the following circumstances; Pir Mohammad and others, the mortgagees under the zarpeshgi of 1923, had sued the mortgagors for the recovery of Rs. 520/- on account of the arrears of malguzari at the rate of Rs. 104/- per annum payable in respect of the bakasht lands and they obtained decree. In Execution of the decree they auction purchased the residential house of the mortgagors and obtained delivery of possession. Thereupon an application under Order XXI, Rule 100, C. P. C. was filed by Mosammat Ramsakhi Kuer claiming herself to be a purchaser of the house besides other properties. The application was allowed. It was against this order that the zarpeshgi-dars (mortgagees) brought Title Suit No. 259 of 1939 against Mosammat Ramsakhi Kuer for a declaration that the sale deed dated 12-2-1933, on which the defendant No. 1 (Mosammat Ramsakhi Kuer) based her title, was farzi, fictitious and also for confirmation of their own possession over the house. It is thus clear that the only matter for decision in the said suit was whether Mosammat Ramsakhi Kuer had acquired a valid title under the impugned sale deed or whether Pir Mohammad and others were entitled to a decree as claimed in that suit. Therefore, the question of settlement of bakasht land with the defendants or with any of them was absolutely extraneous to the subject matter of that suit. Besides, the appellate court has held:
“I hold that the oral evidence of the plaintiff is superior to those adduced by the defendants and the witnesses examined by the plaintiff have fully proved her case.”
Hence, I find no reason to differ from the findings of the Courts below on this point.
7. Now turning to the second point which learned counsel for the appellants has urged, I am of the opinion that in this case the question of adverse posses-
sion does not arise. Admittedly, the plaintiff redeemed her share in the zarpeshgi in the year 1955 and the present suit has been filed in the year 1958. Therefore, the question of adverse possession will arise from the year 1955 when she redeemed her share in the mortgage. Therefore, the Courts below have rightly held that the plaintiff was not entitled to come to khas possession of the bakasht land until she had redeemed the zarpeshgi either in its entirety or with the consent of the zarpeshgidars to the extent of her share in the liability. Until then the zarpeshgidars were entitled to remain in possession of the land. It was open to the zarpeshgidars either to cultivate the land themselves or to let it out to somebodv, mav be to defendants. From this fact it does not follow that the defendants were prescribing against the mortgagee much less against the mortgagors. Therefore, in my opinion, there is no merit in the contention of learned counsel so far this point also is concerned.
8. The third point raised by learned counsel is of considerable importance, based upon the interpretation of Section 6 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950 hereinafter to be referred to as ‘the Act’) and the meaning of “khas possession” given under Section 2 (k) of the Act. He has submitted in this connection that the proprietary interest of the plaintiff vested in the State of Bihar due to the general notification under the Act on 1st of January, 1956, whereas she filed the suit in the year 1958 and in the suit the admitted position is, as it has been held by the trial Court:
“The land was undoubtedly not in possession of the plaintiff but in possession of the defendants but they were holding as temporary lessees from the zarpeshgidars.”
Therefore, according to him, she was not in khas possession of the disputed land and no right and title left in her to file the present suit as held by the Supreme Court in Suraj Ahir v. Prithinath Singh reported in 1963 BLJR 1 = (AIR 1963 SC 454).
9. On the other hand, Mr. Kailash Roy, learned counsel appearing on behalf of the respondent, has contended that in Suraj Ahir’s Case 1963 BLJR 1 = (AIR 1963 SC 454) the plaintiffs accepted the position that they were dispossessed before 1946 and they were out of possession even on that date, and he has further contended that in the instant case the plaintiff had already secured a decree in partition suit No. 119 of 1953, whereby specific portion of the bakasht lands had been allotted to her share. Accordingly, she was entitled to get the possession of these lands. The lands, no doubt, were in possession of the defendants but they were holding as temporary lessees from the zarpeshgidars.
Therefore, according to him the possession of the defendants was on behalf of the zarpeshgidars who in their turn would be deemed to be in possession on behalf of the mortgagors including the plaintiff. In this way it should be deemed that the plaintiff was in possession of the bakasht land at the time of the vesting. In this connection he has relied upon the provisions contained under Section 6 (1) (c) of the Act and has contended that in the case of Suraj Ahir, 1963 BLJR 1 = (AIR 1963 SC 454) the said provisions have not been dealt with specifically, which give protection to the plaintiff in the instant case.
The relevant clause reads as follows:–“Lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof”. He has laid stress upon the words “subsisting mortgage”. In this connection he has relied upon the following observations made by their Lordships of the Supreme Court in Ram Ran Bijai Singh v. Behari Singh, AIR 1965 SC 524:–
“It would be recalled that under the terms of Section 6 (1) (c) the zeraiti land of a proprietor would be deemed to be in his ‘khas possession’ if it were the subject matter of a usufructuary mortgage subsisting on January 1, 1955 and the mortgagor had a right to recover possession of the same. The argument was that these requirements were satisfied by the appellants and that so long as the mortgagors did not obtain re-delivery of possession of the property, the rehan of 1907 was alive and ‘subsisting’ notwithstanding that the amount due as mortgage money was paid and discharged in 1941”. But in this case their Lordships held in the same paragraph:–
“We do not, however, consider it necessary to discuss these submissions further or to record any opinion thereon since on the facts of the present case the learning involved in them is not very relevant”.
Therefore, it is apparent that in this case also Section 6 (1) (c) of the Act has not been so considered and it has also not been considered what the term “subsisting mortgage” means. In this case of the Supreme Court as noted in paragraph 14, the plaintiffs stated in their plaint that the mortgagees had, so far as they were concerned, fulfilled their obligations and had put the mortgagors in possession of such property as they could and that it was the contesting defendants who putting forward claims to occupancy rights, resisted their entry into possession and, in fact continued in possession for more than 12 years from 1941, the date of redemption, to the date of vesting of the property in the State on January 1, 1955. This is, therefore, not a case of a mortgagee remaining in possession after payment of debts without anything more
but of tenants who claimed the rights to retain possession of the property by asserting a title which was as much against the mortgagees as against the mortgagors. But in the instant case we find that the mortgagees have not done their part so far they are concerned. They have not fulfilled their obligation and the disputed lands had not vet been given possession of to the plaintiff in spite of her best efforts and promptitude. She did everything that could have been done in the circumstances to obtain delivery of possession of the disputed land. As stated above, she filed the partition suit for partitioning her one-third share which was decreed. Later on she paid off her one-third share of the zarpeshghi dues to heirs of Pir Mohammad and others, the zarpeshgidars (mortgagees) so much so that a final decree was passed in the aforesaid partition suit on 25-7-56. She filed even Execution Case No. 22 of 1956 which, however, was delayed due to these defendants who put in claim under Order XXI, Rule 58, C. P. C. which gave rise to Misc. Case No. 76 of 1956 which was decided against the plaintiff against which she filed a civil revision in this Court which was also dismissed and therefore, in the circumstances she filed the said title suit of 1958. Therefore, in my opinion, in the circumstances of the case the mortgage should be deemed to be still subsisting and the redemption should be deemed to be not complete till the plaintiff gets actual possession of the disputed land and it should be held that the plaintiff is still entitled to recover khas possession of the disputed land from the defendants under Section 6 (1) (c) of the Act. The defendants should be deemed to be holding the said land on behalf of the plaintiff as temporary lessees. Under the circumstances, the contention of learned counsel for the appellants cannot be accepted on his score as well.
10. In the result, this appeal is dismissed, but in the circumstances of the case there will be no order as to costs of this Court.
Misra, A.C.J.
11. I agree.