LexVISWANATH (DEAD) BY LR. versus CHANDRA BHAN AND ORS.
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VISWANATH (DEAD) BY LR.
v.
CHANDRA BHAN AND ORS.
DECEMBER 13, 1995
(K. RAMASWAMY AND B.L. HANSARIA JJ.)
U.P. Zamindari Abolition and Land Refonns Act, 1951>-Sections 209,
A
B
331, (1) Schedule II-Courts constituted under the Act-Jurisdiction of Land
mortgaged by the guardian, plior to the enactment of the Act-Suit for eject-
ment-Held, Courts constituted under the Act get exclusive jurisdiction exclud-
C
ing jurisdiction of Civil court-Mortgage statutorily extinguished after
enforcement of the Act, therefore redemption of Mortgage, not required, Civil
Procedure Code, 190~Section 9.
"H", brother in law of Minor "G" as a guardian mortgaged the land
in dis1m<< to the respondent. After enforcement of U.P. Zamindari Aboli- D
tion and Land Reforms Act, 1950, appellant filed suit for ejectment of the
Respondent under the Act.
The Assistant Collector and the Board of Revenue held the mortgage
as void holding that "H" was neither natural nor property guardian of "G".
The High Court allowing the writ petition of the Respondent held
that since the Respondent came into possession of the land in his title as
a mortgage, until a suit for redemption of the mortgage and the eviction
of the respondent is filed in the civil Court, the proceedings under Section
E
209 of the Act is not maintainable. Hence this appeal.
F
Allowing the appeal, this Court :
HELD : 1.1. The appellant is not obliged to file a suit for redemption
of the mortgage. Since, after the Zamindari Abolition and Land Reforms
Act, 1950 has come into force, the mortgage stood extinguished and the G
Bhumidhari rights acquired under the Act cannot be burdened with any
liability to redeem the mortgage debt which was statutorily extinguished
creating an encumbrance on the land. [ 636-A, 635-C]
Rana Shea Ambar Singh v.Allahabad Bank Ltd. Allahabad, [1962] 2
SCR 2141, referred to.
H
633
634
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A
1.2. The jurisdiction of the Civil Court to take cognizance of the
cause of action, under Section 9 of the C.P.C. stands excluded and the
Courts constituted under the Act, get exclusive jurisdiction to take cog·
nizance and deal with the matters referred to under the Act. Since Section
209 of the Act expressly referred to a person taking or retaining possession
B of land from a Bhumidhar otherwise than in accordance with the provision
of law. Any other person who has taken possession of the land without his
consent is liable to be ejected. Schedule II of the Act clearly mentions in
item 24 that cognizance could be taken in respect of Section 209 and the
competent Court has been enumerated in the schedule as Assistant Col·
c
D
E
lector. (637-A-B]
·
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 157 of
1978.
From the Judgment and Order dated 14.1.76 of the Allahabad High
Court in C. Misc. W. No. 7483 of 1971.
J.P. Goyal, M.R. Bidsar and R.P. Goyal for the Appellants.
Ms. Rani Chhabra and R.B. Misra, {NP) for the Respondents.
The following Order of the Court was delivered :
The only question in this appeal is whether the High Court in its
order dated 12.1.1976 made in Civil Misc. Writ No. 7483nl is correct in
law. the admitted position is that one Hanuman Singh, the brother in law
of Guiab Singh (sister's husband), as a gnardian had executed a mortgage
of the lands in plot Nos. 120, 122, 145/l and 145/2 situated in village
F Kanjauli Uparhar and village janjauli Kachhar, Tappa Chaurasi, P.O.
Khairagarh, District Allahabad in favour of the respondent. After the U.P.
Zamindari abolition and Land Reforms Act, 1950 (for short, 'the Act') was
brought into force with effect from 26.1.1951. The appellant laid the suit
under Section 209 of the Act for ejectrnent of the respondent. All the
G courts including the Board of Revenue concurrently held, which was also
upheld by the High Court, that Hanuman Singh is neither a natural
guardian nor a property guardian appointed to manage the estate of the
minor Guiab Singh. Therefore, the mortgage is a void mortgage.
The respondent contended that he had perfected his title by adverse
H possession. That contention was rejected. He also contended that he
I
VISWANATii v. CHANDRABHAN
635
became an 'asami' under the Act and thereby he is not liable to be ejected. A
That contention too was rejected. When he filed the writ petition, the High
Court, for the first time, held that since the respondent came into posses·
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