Syed Shah Mohammed Quadri - (1.) , J.-
(2.) THESE appeals from various judgments and orders of High Court of Judicature at Allahabad arise out of the same factual matrix and raise a common question of law viz.. how are the rights of the mortgagors and the mortgagees of the suit land affected by the provisions of the U.P Zamindari Abolition and Land Reforms Act? The search for the answer to the ques tion takes us back a century and a quarter and obliges us to examine the nature of the tenure under different Acts. The undisputed facts give ing rise to the above question lie in a narrow compass. The object of controversy is certain plots of land in village Chaura Kalan, Taluka Konrh, Pargana Bhadohi, District Varanasi of the State of U.P. (hereinafter referred to in this judgment as 'the suit land'). In 1923 one Ram Nath Singh, who was said to be sub-proprietor, granted the suit land as 'Krishnarpan' to one Prayag Dutt Tiwari who passed away in 1947 leaving behind him his L.Rs. Respondent Nos. 5 to 10, who (hereinafter referred to as 'the mortgagors') executed usufructuary mortgage in favour of Thakur Prasad and Shitla Prasad (Appellants in Civil Appeal Nos. 865-866 of 1984 - hereinafter referred to as 'the mortgagees') on November 3, 1947. The mortgagors sold the suit land in different bits. They sold l/6th share in favour of the mortgagees and l/6th share to Jadunath (respondent in Civil Appeal No. 866 of 1984). The remaining 2/3rd share in the suit land was sold under two sale deeds in favour of Raj Karan (appellant in Civil Appeal No. 868 of 1984). On October 7, 1960, Raj Karan, who had entered into shoes of the mortgagors (hereinafter referred to as such in this judgment) filed the suit, out of which these appeals arose, for ejectment of Thakur Prasad and Shila Prasad (mortgagees) by depositing the mortgage money. The suit could not proceed due to the issuance of Notification of consolidation in the said village. The case was. however, tried under Section 9 of the U.P. Consolidation of Holdings Act by the Consolidation Officer who dismissed the suit. On appeal by Raj Karan, the Settlement Officer decreed the suit on August 12, 1965. The mortgagees filed revision before the Deputy Director of Consolidation who allowed the revision petition and restored the order of the Settlement Officer (Consolidation) on December 21. 1965. The said order was impugned in writ petitions before the High Court of Judicature at Allahabad by different parties. From the judgments and orders of the High Court the above appeals came to be filed in this Court by special leave. Mr. E.G. Agarwala, the learned counsel appearing for the appellants - mortgagees contended as follows: the Deputy Director of Consolidation found that the suit land was donated by the sub-proprietor. Ram Nath Singh. in favour of Prayag Dutt Tiwari which was not disturbed by the Maharaja of Banaras after pur- chasing the village. Prayag Dutt Tiwari and his successors continued in possession for more than fifty years and thus acquired the status of an owner under Section 158 of the N.W. Prov- inces Tenancy Act of 1901 (later termed as the Agra Tenancy Act - for short, 'the Agra Act'); under Section 6 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, 'the Z.A. Act'), the rights of a mortgagor had come to an end and he became entitled to recover the mortgage amount as a simple mortgagee; however, Section 14(2) con ferred the right of ownership/bhurnidar on such a mortgagor who held land as 'Sir' or under 'Khudkasht' on the date of the mortgage but the suit land was not so held and some other mortgagees were in possession so it could not have been under the Khudkasht of the mort- gagors on the relevant date as such their right got extinguished; the mortgagees would have become hereditary tenant, had they deposited five times the rent but they failed to do so and therefore Gaon Sabha became entitled to eject them under Section 209 within three years from the date of the vesting in view of Section 210 of the Z.A. Act and Rule 338 of the U.P. Zamindari Rules read with Appendix III (Item 30) but no suit was brought by Gaon Sabha till date and so they had become sirdar or asami and would be deemed to be a tenant from year to year; even assuming the mortgagors become bhumidar, they could not evict the mortgagees after the limitation of three years as they perfected their title by adverse possession; in the written submission it is added that the mortgagors, not having acquired the right under Section 14(2)(a). had no right to bring the suit for eviction.
(3.) MR. V.K.S. Chaudhary, the learned senior counsel appearing for the mortgagors, ar gued that: in the Namanzuri village, the mortgagors could not claim any right under Section 158 of the Agra Act; by the 1954 Notification the Z.A. Act was applied to the suit land village duly deleting Sections 4 to 112 thereof the mortgagees were entitled only to mortgage money which was already deposited in the court; even in the sale deed obtained by mortgagees the position of the mortgagors as bhumidars was accepted which could not be permitted to be denied now; the mortgagors became bhumidars under Section 130 and under Section 133 of the Z.A Act the mortgagees became asamis so the suit for ejectment of the mortgagees was required to be decreed; Raj Karan and others were given possession of the suit land by the Consolidation Officer accepting them as bhumidars and the mortgagees possession was confined only to the l/6th share which they had purchased ; they could not deprive the mortgagors of their land. It is a common ground that the suit land formed part of erstwhile Banaras State before its merger in the State of U.P. on January 26. 1950. The Maharaja of Banaras was the absolute owner of the Banaras State which, it was stated, was formed out of Banaras family Domain in 1911-1912. In the Banaras State there were two types of villages called (i) Manzuri villages and (ii) Namanzuri villages. Where a village was granted by the Maharaja to an intermediary, it was termed as 'Manzuri' village; the other villages in respect of winch no grant was made by him were referred to as 'Namanzuri' villages.;