BUDHA versus AMILAL

Citation: [1990] SUPP. 3 S.C.R. 656 · Decided: 21-12-1990 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
BUDHA 
v. 
AMIL AL 
DECEMBER 21, 1990 
[KULDIP SINGH AND S.C. AGRAWAL, JJ.] 
Rajasthan Zamindari and Biswedari Abolition Act, 1959-
Section 29(1)-'Khudkashf-Whether Zamindar/Biswedar becomes 
Malik-Lands vests in government. 
C 
One piece of Agricultural land bearing khasra No. 711/531 was 
mortgaged by way of usufructuary mortgage by one Kallu Ram in 
favour of Sheo Ram, the father of the respondent, and another piece of 
agricultural land, bearing kh. No. 390, was mortgaged by the appellant 
and Kallu Ram together in the same manner In favour of Sheo Ram. 
Kalin Ram and the appellant were biswedars In respect of those lands. 
D 
Kallu Ram died and the appellant claimed that on the death of Kallu 
Ram property devolved on him. The appellant flled a suit for redemp-
tion of aforesaid mortgages against Sheo Ram before the Munsif Magis-
trate, Kishangarh Bas. The defendant contested the suit and pleaded 
that on the abolition of Biswedari, consequent on the coming into force 
of the Rajasthan Zamindar and Biswedari Abolition Act, 1959, the 
E 
rights, title and Interest in the lands in question stood transferred and 
vested in the State of Rajasthan and the appellant did not have the right 
to redeem the mortgage. It was also pleaded that on the date of the 
creation of the mortgage, the appellant and Kallu Ram were not in 
possession of the lands and the defendant was in possession of the lands 
as kashtkar since before the mortgages. An objection to the jurisdiction 
F 
of the civil court to entertain the suit was also raised. The trial magis-
trate dismissed the suit holding that in view of section 5(2)(b) of the 
Act, the lands in question stood transferred to the State and have got 
vested in the State and the appellant did not have any right to file the 
suit in respect of the same. The appellant filed an appeal against the 
said order which was allowed by the Additional Civil Judge. The Addi-
G 
tional Civil Judge, held that the name of the appellant appeared as 
holder of Khodkasht in the annual register and that he had thus 
acquired khatedari rights in respect of the lands in question and as such 
he could maintain the snit for redemption of the mortgages. The matter 
was thus remanded for trial. The defendant filed a second appeal in the 
High Coon. The ffigh Court allowed the appeal and restored the judg-
H 
656 
BUDHA v. AMILAL 
657 
'•J/I\ 
ment and decree of the Munsiff dismissing the suit of the appellant. The 
A 
High Court held that the appellant did not raise the plea with regard to 
the lands in question being his khudkasht lands in the pleadings and any 
evidence in support of the same could not he thus looked into. It further 
took the view that the appellant himself had pleaded that since the 
execution of the mortgage deeds, the possession of the lands remained 
with the defendant and that clearly showed that the appellant was not in 
B 
possession of the lands after the execution of the mortgage deeds and 
therefore the right of the appellant in the lands in dispute stood 
abolished after the coming into force of the Act. 
Hence this appeal by the appellant. 
Dismissing the appeal, this Court 
c 
HELD: Literally speaking the word 'khudkasht' means personal 
cultivation. The definition of this expression contained in Section 5(23) 
of the Rajasthan Tenancy Act, which is in two parts, indicates that it 
bas been~ in the same sence in the Act. In the main part Khudkasht D 
has been defined to mean land cultivated personally by an estate-
holder. This is further clarified by clause (25) of Section 5 of the 
Rajasthan Tenancy Act which def'mes the expression 'land cultivated 
personally' to mean land cultivated on one's own account (i) by one's 
own labour, or (ii) by the labour of any member of one's family, or (iii) 
under the personal supervision of oneself or any member of one's family E 
by hired labour or by servants on wages payable in cash or in kind but 
not by way ofa share in crops. [6{i4C-D] 
The expression 'Khudkasht' as def'med in Section 5(23) of the 
Rajasthan Tenancy Act, would, not include land .in possession of and 
cultivated by a tenant or mortgagee. [6(i4G] 
F 
In the Instant case, the appellant has come forward with a specific 
case in the plaint that the defendant is in possession of the lands in 
dispute as a mortgagee from the date of the two mortgagees. In other 
words the appellant was not in possession/occupation of the said lands 
on the date of westing of the est

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