VISHWANATHA DEAD Vs. CHANDRA BHAN

JUDGEMENT

(1.) The only question in this appeal is whether the High Court in its order dated 12-1-1976 made in Civil Misc. Writ No. 7483/71 is correct in law. The admitted position is that one Hanuman singh, the brother in law of Gulab Singh (sister's husband), as a guardian had executed a mortgage of the lands in plot Nos. 120,122,145/1 and 145/2 situated in village Kanjauli Uparhar and village Janjauli Kachhar, Tappa Chaurasi, P. O. Khairagarh, Distirict Allahabad in favour of the respondent. After the U.P. Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Act was brought into force with effect from with effect from 26-1-1951. The appellant laid the suit under Section 209 of the Act for ejectment of the respondent. All the courts including the Board of Revenue concurrently held, which was also upheld by the High Court, that Hunuman Singh is neither a natural guardian nor a property guardian appointed to manage the estate of the minor Gulab Singh. Therefore, the mortgage is a void mortgage.

(2.) The respondent contended that he had perfected his title by adverse possession. The contention was rejected. He also counted that he became an 'asami' under the Act and there by he is not liable to be ejected. That contention too was rejected. When he filed the writ petition, the High Court, for the first time, held that since the respondent came into possession of the aforesaid lands in his title as a mortgagee, until a suit for redemption of the mortgage and eviction of the respondent is filed in the civil Court, the proceedings(sic) Section 209 of the Act is not maintainable. Therefore, the learned Judge allowed the writ petition with the above order and set aside the orders passed by all the tribunals referred to hereinbefore. The, this appeal by special leave.

(3.) The only question is whether the tribunals have jurisdiction to have respondent ejected from the lands. This Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd., Allahabad, (1962) 2 SCR 441 had held that after the Act has come into force, the mortgage stood extinguished and the bhumidari rights acquired under the Act cannot be burdened with any liability to redeem the mortgage debt which was statutorily extinguished creating an encumbrance on the land. It was held: