RAJ NARAIN PANDEY & ORS. versus SANT PRASAD TEWARI & ORS.

Citation: [1973] 2 S.C.R. 835 · Decided: 31-10-1972 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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835 
RAJ NARAIN PANDEY & ORS. 
v. 
SANT PRASAD TEWARI & ORS. 
October 31, 1972 
[H. R. KHANNA, Y. V. CHANDRACHUD AND C. A. 
VAIDIALINGAM, JJ.] 
U.P. Tenancy Act (17 of 1939) ss. 33, 44, 45, 8·2· and 180-Scope of 
Stare Decisis-Application by Supre1ne Court with respect to decisiom 
of High Court interpreting /occ./ Statutes. 
In interpreting ss. 33, 44, 45, 82 and 180 of the U.P. Tenancy Act, 
1939, the High Court, in two Full Bench decisions. namely ChasS11 v. 
Babu R"m [A.l.R. (31) 1944, Allahabad 25] Mahaha/ Singh 
v. Ram 
Raj (A.l.R. (37) 1950 Alkihabad 604), held: 
(1) That the usufructuary mortgage of an occupancy holding by a ten-
ant is void and not ~dable; (2) that a !"ortgagor after _giving_ possession 
to the mortgagee cannot recover possession of the holding without pay-
ing the money which he had taken from the mortgagee; (3) that a mort-
gagee of an occupancy holding by remaining in possession for over 12 
year uoes Mt extinguish the rights of the mortgagor to redeem him and 
by such possession the mortgagee only prescribes for mortgagee rights; ( 4) 
that it is open to the· mortgagor to seek possession of the holding 
by 
tendering the consideration which he had received and he may do so by a 
redemption suit; (5) that the relationship which comes into existence as 
a result of the mortgage of an occupancy holding and its possessioµ -being 
transferred to the mortgagee, is analogous to that of a mortgagOi" and 
mortgagee and the action to recover possession is analogous to red em p_tjon 
u.nd ( 6 J such a suit is maintainable suit in a civil court. 
In the present case, the occupancy tenant of the land in dispute exe-
cuted a mortgage deed in respect of the land in favour of the appellants 
and put them in possession. 
Respondents !' to· 6 were 
subsequently 
accepted as the occupancy tenants by the landlords in place of the previous 
occupancy tenant and have also been declared to bo lhe Bhumidars of the 
land. 
Respondents I to 6 filed a suit for possession of the land. after 
depositing the mortgage money in court. 
The suit was decreed in appeal. by the High Court, following the ear-
lier Full Bench decisions. 
Dismissing the appeal to this Court, 
HELD : (!) in the matter of the interpretation of a local statute, the 
view tal:en by the High Court over a number of years should normally 
be adhered to and not disturbed. 
A different view would not only intro-
duce an element of uncertainty and confusion, it would also have the efrect 
of unsettling transactions which might have been ente:-.d into on the 
faith of those decisions. The doctrine of stare decisis can be aptly in-
voked in such a situation by a superior court not strictly bound by the 
decision. 
[840 B·E] 
Brownsaa Haven Properties v. Poole Corpn. (1958] Ch. 574 (C.A.) 
referred to. 
(2) The status of the appellants was analogous to that of the mort-
gagees and the successor of the origim1J mortgagor would be entitled to 
2-L521Sup.C.I.173 
836 
SUPREME U>URT REPORTS 
(l 973] 2 S.C.R. 
recover possession of the land on payment of the mortgage money. 
As 
respondents 1 to 6 were 
the 
occupancy 
tenants of the 
land 
and 
as they were declared to be the Bhumidars, 
they 
had sufficient 
inter 
est in the land, to institute the suit under s.91 (a) of the Transfer of 
Property Act, 1882. [841 A-El 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1308 of 
1967. 
Appeal by special leave from the judgment and decree dated 
December 7, 1966 of the Allahabad High Court in Appeal No. 
5252 of 1960. 
C. B. Agarwal and K. P. Gupta, for the appellant. 
G. N. Dikshit and S. K. Bisaria, for the respondents. 
The Judgment of the Court was delivered by 
KHANNA, J. This appeal by special leave is directed against 
the judgment of Allahabad High Court whereby that Court re-
versed the decisions of the trial Court and the first appellat!< court 
and awarded a decree for the possession of the land in dispute in 
favour of the plaintiff-respondents against the 
defendant-appel-
lants. The appellants were further held to be. e:ititled to withdraw 
the mortgage amount which had been deposited by the respon-
dents. 
On January 16, 1923 Ganga Prasad Rai, father of Lachhman 
Singh plaintiff-respondent No. 7, executed a mortgage deed in 
respect of land in dispute for Rs. 600 in favour of Ram Cheej 
Pandey and put him in possession thereof as a mortgagee. Ram 
Cheej Pandey, who was impleaded as defendant No. I in the suit, 
is now dead and

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