Decided on January 27,1967

GAJANAND Appellant


- (1.)THIS is a second appeal against appellate order dated 14. 6. 64 of Revenue Appellate Authority, Udaipur. The facts of the case are that Gajanand, appellant here, filed a suit on 14. 12. 59 under sec. 43 of the Rajasthan Tenancy Act in the court of Assistant Collector, Bhilwara for redemption of mortgage. It was stated that Rameswar & Sohanlal sons of Mathuralal (defendants No. 1 and 2 in the court of A. C. , Bhilwara) were in Gokul's line, who was entered as holder of mafi Sasnik of 5 bighas 12 biswas in village Banera and in Smt. 1956 (A. D. 1899) mortgaged this land on behalf of himself and others, with possession, in favour of Daluram and Khemraj. It was further stated that Rameswar and Sohanlal aforesaid were the only survivors in the line of mortgagors and they had sold the mortgaged land to Gajanand on 7. 2. 57 for Rs. 1000/ -. It was further stated that Madanlal and Sohanlal sons of Laluram Baldeva defendant No. 3 and 4 in the court of A. C. Bhilwara were the descendants of Laluram Khemraj and present possessors of the mortgaged land. They had been asked to give the land back free of charge as they had realised the mortgage money many times over but had not complied with this demand and so Gajanand, as successor in interest of Rameswar and Sohanlal sons of Mathuralal, prayed that the land be got handed over to him free of charge after redemption from mortgage. In me alternative it was declared that the plaintiff was prepared to pay back if any part of mortgage money was found payable. After framing issues and taking evidence the Assistant Collector ordered on 12. 5. 62 that the land in dispute should be redeemed and given to Gajanand without repayment of mortgage money but Gajanand should pay Rs. 300/- to Madanlal and Sohanlal (defendants No. 3 and 4) on account of expenditure incurred by them on the proper upkeep (lqj{kk) of the land. Madanlal and Sohanlal aforesaid, went in appeal to the Revenue Appellate Authority Udaipur and succeeded and hence this second appeal by Gajanand.
(2.)COUNSEL for the parties have been heard and we have perused the record. COUNSEL for the appellant argued that mafi as well as Khadam (Khatedari) rights had been mortgaged, that the lower appellate court was wrong in holding that the mafidar had no separate and separable rights of khadam and that the rights of Khadam had been merged in mafi rights. It was pointed out that respondents nos. 3 and 4, Madanlal and Sohanlal, had in their written statement at paras 3 and 4 taken the ground that all rights along with khatedari had been mortgaged and this very tact had been stated by Madanlal in his deposition. The finding of the lower court that a landholder cannot be a tenant and he cannot be a landholder of the same land at the same time was contended to be unfounded. ILR 1954 Raj. 1, 1958 Patna 589 (Brijnandan Singh vs. Sahu and others), 1957 RLW, p. 203 (Hansraj vs. Pyarchand), 1963 RRD p. 188 (Mogji vs. Indrajeet Singhji), 1964 RRD 137 (Panna and others vs. Khet Singh) were cited. It was argued on behalf of the respondents (really respondents No. 3 and 4) as respondents No. 1 & 2 Rameshwar and Sohanlal sons of Mathuralal have throughout admitted the plea of the appellant), that the mafidar could not have khadam rights had mortgaged his mafi rights and when these came to an end in the resumption of Mafis he had nothing more to do with the land and the khatedari remained with his clients. It was argued that the proposition of law laid down by the lower appellate court was well-founded. Mortgage as well as lease require two parties and are bilateral acts and the mafidar cannot create a tenancy which is a lease, in his own favour. The following authorities were cited - RLW 1955 p. 411 (Daulatsingh vs. State of Rajasthan) RLW 1961 p. 369 (Bhagwan Sahai vs. State of Rajasthan) AIR 1958 p. 941 (Puri vs. Sona) and Secs. 58 and 105 of the Transfer of Property Act AIR 38, 1951 S. C. p. 186 (Jha and others vs. Singh and other)
Ilr 1954 Rajasthan 1 defines Khadamdaris and holds that they are transferable rights. 1958 Patna 589 holds that the word 'khas' in relation to possession over lands in a zamindari estate connotes a possession of the proprietor without the intervention of the tenant and not an actual or physical possession. 1957 RLW p. 203 holds that under R. 19 of Mafi Rules of Mewar State permanent transfer of Mafi Sasnik was invalid. 1963 RRD 188 lays down that an ex jagirdar can maintain a suit of ejectment against his tenants or trespassers regarding "khudkast land. 1964 RRD 137 holds that it is possible for an estate holder to have two capacities, one as an estate-holder and the other as khatedar or khudkast holder. For the first he could get compensation under the Jagir Resumption Act and for the second as khatedar he could get compensation under sec. 90 of the Rajasthan Tenancy Act. Of the authorities cited by the respondents RLW 1955 p. 411 holds that when a jagir is resumed not only the jagirdari interest but every right, title and interest of Jagirdar and of every person claiming through him shall cease and determine. We may note that does not include rights as a khudkasht holder or a tenant. 1961 RLW p. 369 holds that lease is an encumbrance and comes to an end with resumption of Jagirs. AIR 1958 S. C. p. 941 holds that in a mafi there is a relation of creditor and debtor between the parties. Transfer of Property Act sec. 48 is to the effect that in a mortgage there must be a transferor and transferee. Mulla's Transfer of Property Act, p. 732 cl. (d) reads : Thus if the lessor purchases the lessee's interest the lease is extinguished as same man cannot be at the same time landlord and a tenant. AIR 38, 1951 S. C. 186 is to the same effect. Sec. 105 of the Transfer of Property Act defines lease and says that there must be two parties, lessor and lessee.

We may first of all note that the issue of the case will turn on the proposition propounded by the lower appellate court that landholder cannot be a tenant for same land at the same time. The Revenue Appellate Authority has specifically discussed the findings of fact of the trial court and held that Rameswar and Sohanlal (respondents No. 1 and 2) were the surviving descendants of the mortgagor's line and the heirs. He has not dissented from most of the other findings of fact of the Assistant Collector. He says, however, that when original mortgagor had not the right of khadam and even if he had it it was not separate and separable from mafi rights and the mafi rights which were proprietary included tenancy rights. The first appellate court has further held that as the mafi rights could not be separated from tenancy rights, supposing the mortgagor had them, when the mafi was resumed in 1958 the mortgagor had no right to redeem the khadam because it was part of the mafi rights.

The following observations will dispose of the contentions of the learned counsel for appellant as also the finding of the lower appellate court. In the ruling and sections cited by the respondents there are transactions of mortgage and lease and it is quite correctly held that these could not take place unless there are two parties. In other words, such transactions must be bilateral. But when a man lives in his own house or cultivates his own property it is neither mortgage nor lease. In the same property a man cannot be landholder and tenant but these conceptions are not attracted at all to the instant case. When a man lives in his own house he is neither landlord nor tenant but surely a proprietary tenancy rights are nationally separable and if it happens that the house is acquired, (not outright but for use only) the tenancy rights are gone but the proprietary rights remain and vice versa. Secondly we find that the terms landlord and proprietor have no where been used in the Land Revenue Act and Tenancy Act. Land owner, S. 5 (25) of Rajasthan Tenancy Act, has been defined as ex-ruler holding an estate under and in accordance with the settlement of his personal properties. All such estates are being wiped off under the Rajasthan Land Reforms & Acquisition of Land Owners Estates Act. Landholder has been defined as the receiver of rent and includes an estate holder and even a tenant vide S. 5 (26) (iii) of the. Tenancy Act. Thus even a khatedar can be an estate-holder if he has sub-let or mortgaged. An estate has been defined sec. 5 (10) (ibid) as jagir land or interest in jagir land, land or interest of zamindar or biswedar or land owner. There are numerous rulings of the Board of Revenue that a khatedar is not proprietor in respect of his khata. A mafidar holds a mafi interest. There is nothing to bar his holding tenancy interest too. Where the mafidar cultivates his mafi land his name is entered in the column for mafi as also in the column for khatedari. This was done in the instant case vide p. 36 of the lower court's file and this is always the case in settlement parches. The mafidar does not thereby become his own tenant. In fact the theory propounded by the Revenue Appellate Authority would work havoc with all khudkasht holdings and cannot be regarded as applicable to agricultural lands in Rajasthan at all. Whenever Jagirs are resumed the khudkasht holders become khatedars.

The appellant's predecessor's interest when he mortgaged his land, was both as Mafidar and Khadamdar, namely, Khatedar. This has been admitted in paras 3 and 4 of the written statement of the respondents and the statement of one of them Madanlal states that mafi rights were also mortgaged. The mafi having been resumed during the pendency of the mortgage the khadam or khatedari continued unimpaired.

The result of the above discussion is that the proposition laid down by the Revenue Appellate Authority, namely, that a person cannot be both landlord and tenant at the same time is inapplicable to the present case. The Revenue Appellate Authority had based his acceptance of appeal from the judgment of the trial court on this dictum of law and as it does not apply the only prop of his order in taken away.

In the result the appeal succeeds. We quash the order of the Revenue Appellate Authority and restore that of the Assistant Collector, Bhilwara.

Per Shri Kakar - I entirely agree with the finding of my learned colleague as also the reasons given for the same. I, however, would like to add a few supplementary observations. The learned Revenue Appellate Authority while applying to this case the proposition that a landlord cannot be at the same time a tenant seems to have made the mistake of identifying a lease-holder with a Kharamdar or a khatedar tenant. A tenant in the ordinary parlance and as used in the Transfer of Property Act is only a lease-holder, but under the Mewar Tenancy Act or the Rajasthan Tenancy Act, 1955, a kharamdar has rights which no lease-holder can claim. For instance, as has been clearly brought out by my learned colleague kharamdar rights are transferable and inheritable, whereas such would not be the case in an ordinary lease. Though there should be no quarrel that the landlord cannot be, at the same time, a tenant in the sense of a mere lease-holder yet to apply this principle in the case of a kharamdar would be absolutely unwarranted. The rights of a muafidar and kharamdar are therefore separate and separable rights. If a muafidar also holds the rights of a kharamdar, it cannot be said that the latter were also extinguished as a result of resumption of the muafi. Kharam rights would be analogous to those of the rights of a khudkasht holder or a jagirdar. A khudkasht holder who is also a jagirdar automatically becomes a khatedar tenant under sec. 13 of the Rajasthan Tenancy Act, 1955. Similarly, rights of a kharamdar who is also a muafidar could not be extinguished as a result of resumption.

The appellants were, therefore, entitled to get the land redeemed as their kharam rights still remain in tact. .

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