- (1.) THIS reference has been made by a Division Bench posing the following question : - "where, before the abolition of his biswedari under the Rajasthan Zamindari and Biswedari Abolition Act 1959, a biswedar makes a usufructuary mortgage of his biswedari lands does he, after the abolition under the Act, become a khatedar tenant thereof and is entitled to institute and continue a suit for possession or redemption against the mortgagee without or on payment of mortgage money and, if yes, under what circumstances" ?
(2.) IN order to appreciate the point raised, it would be useful to recount the facts of the case. The plaintiff respondent Mangaliya was biswedar of the suit land. By a registered deed dated 3-12-52, he made a usufructuary mortgage of this land in favour of Bhore Lal for Rs. 900/- and in pursuance thereof Bhore Lal entered into possession. On 1-11-59, the Rajasthan Zamindari and Biswedari Abolition Act came into force. IN due course, in exercise of its powers under section 4 of the Act, the State Government abolished all zamindari and biswedari estates, including that of the plaintiff, who thereupon filed a suit for redemption and possession of the mortgaged land in the court of the Sub-Divisional Officer, Kishangarh Bas. The plaintiff contended that under sec. 5 (j) of the Act the usufructuary mortgage had been converted into a simple mortgage and he had become khatedar tenant of the land and the defendant number 1 Bhore Lal was now a trespasser. As far as the mortgage money was concerned, it was a charge on the compensation amount payable by the State Government to him and no money under the mortgage remained due from him to Bhore Lal. It was, therefore, contended that he was entitled to get back the land from the defendants, and in the alternative he said that if it was found that he was liable to pay the mortgage money he was prepared to pay. Since the name of Chhota appeared in the khasra girdawari, he too was made a defendant to the suit. The mortgage was admitted by the defendants. They contended that upto St. 2013 defendant number 1 alone cultivated the land and thereafter he and his brother defendant number 2 each cultivated half. With the abolition of the estate, the ownership of the land vested in the State Government and all the rights of the plaintiff therein came to an end while the defendants became khatedar tenants by virtue of their possession. The trial court framed three issues, the second of which was whether the plaintiff was entitled to maintain the suit This was taken up as a preliminary issue and by a judgment dated 15-5-67 the suit was dismissed. In appeal, the Revenue Appellate Authority, Jaipur remanded the case to the trial court for dis-posal after framing and deciding an issue as to whether the plaintiff hade made a usufructuary mortgage of his light to cultivate the land and whether he was entitled to redeem the mortgage and get back possession on account of its being his khudkasht. When the case came up for hearing before the Division Bench in second appeal, the attention of the learned Members was drawn by the respondent to two rulings of the Board reported in 1967 R. R. D 110 Gajanand Vs. Rameshwar Lal and 1969 R. R. D. 59 Mana Vs. Kalyan, in which it has been held that proprietary and khudkasht rights are separable, and it was argued that a biswedar is entitled to bring a suit for redemption of a mortgage and possession in respect of his khudkasht land. On the other hand, the defendant-appellants cited 1970 R. R. D. 492 Bhav Singh Vs. Khawasi in which the Rajasthan High Court has held that after the abolition of an estate a biswedar is not entitled to maintain a suit for redemption of a usufructuary mortgage made by him before the commencement of the Abolition Act. The Division Bench felt that it was difficult to reconcile these rulings and since an important question of law was involved it directed that the papers be laid before the Hon'ble Chairman for constituting a Larger Bench to make an authoritative pronouncement on this issue. Hence the case has come up before us. Shri Jatan Chand, appearing on behalf of the defendant appellants, says that sec. 5 of the Rajasthan Zamindari and Biswedari Abolition Act deals with the consequences of the abolition of the estates According to sub-sec. (2) of this section, as from the date of abolition an estate shall stand transferred to and shall vest in the State Government free from all encumbrances. Sub-sec. 4 says that notwithstanding anything contained in sub-sec. (2) the zamindar or biswedar shall, subject to the provisions of sec. 29, continue to retain the possession of his khudkasht recorded as such in the annual registers before the date of vesting Sec. 29 lays down that as from the date of vesting of an estate the zamindar or biswedar thereof "shall be a malik of any khudkasht land in his occupation on such date and shall, as such malik, be entitled to all the rights conferred and be subject to all the liabilities imposed on a khatedar tenant by or under the Rajasthan Tenancy Act 1955".
(3.) IN other words, says counsel, while the zamindar or biswedar has been permitted to retain his khudkasht, such retention is only in respect of khudkasht land in his occupation on the date of vesting. He contends that the plain meaning of the word "occupation" is actual physical possession and that in this case, since it was an admitted fact that a usufructuary mortgage had been made in favour of the defendant-appellant Bhore Lal, the plaintiff an ex-biswedar Mangaliya could not claim to have been in occupation of the land on the date of vesting. Even if the land were recorded as his khudkasht, in view of the provisions of sec. 29 this land could not be retained by him but would vest in the State. Shri Jatan Chand has also drawn attention to sec. 43 of the Rajasthan Tenancy Act and says that if it was the intention of the legislature to preserve the rights of a biswedar mortgagor by creating a legal fiction as to his possession on the date of vesting, a clause to this effect would have been added in this section or at any rate in sec. 5 (2) (j) of the Zamindari and Biswedari Abolition Act. On behalf of the respondent it is stated by Shri Jyoti Swaroop Mathur that in view of sec. 5 (2) (j) of the Abolition Act every mortgage with possession existing on an estate on the date immediately preceding the date of vesting shall be deemed to have been substituted by a simple mortgage. A simple mortgage is one without possession. The mortgagee thus cannot legally retain possession and becomes a trespasser and if any payment is due him for redemption of the mortgage it would be a charge on the compensation for the estate. As regards the effect of sec. 29 of the Zamindari Act, Shri Jyoti Swaroop say9 that this does not envisage actual physical possession. He has cited several rulings which we consider below. ;