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Haridwar Singh Vs. Ghirrau Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1679 of 1960
Judge
Reported inAIR1964All311
ActsTenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 3(8), 6, 14(1), 14(2), 18, 18(1) and 240B; Uttar Pradesh Supplementary Act, 1952 - Sections 3
AppellantHaridwar Singh
RespondentGhirrau Singh
Appellant AdvocateSripat Narain, Adv.
Respondent AdvocateUma Kant Misra, Adv.
DispositionAppeal dismissed
Excerpt:
tenancy - a share in the estate - sub-section(8) of section 3, sub-section(1) and sub-section(2a) of section 14, sub-section(1) of section 18 and section 6(g)(i) of the u. p. zamindari abolition and land reforms act, 1951 - an usufructuary mortgage entered in regard to a cultivatory plot when the mortgagee has the possession of the said land - held, the mortgagor will be said to have acquired the bhumidari rights of cultivatory significance.  - - it was agreed between the parties that the mortgage would be satisfied from the usufruct in 10 years and that thereafter the appellant would restore the respondent to possession. i do not understand what good it would do to the usufructuary mortgagee to convert his mortgage into a simple mortgage except that he would have the benefit of a.....desai, c.j.1. this appeal has been filed by a defendant against whom a decree for possession, has been passed in the following circumstances. the respondent was a co-sharer in a village. he and some co-sharers of the village had a joint sir-holding which included the land in dispute in this appeal. by a private arrangement among the joint sir-holders the land in dispute was in the exclusive occupation of the respondent. thus though he and some co-sharers jointly owned the land in dispute it was by private arrangement among them in the sole cultivation of the respondent. on 12-10-1944 he mortgaged it with possession with the appellant for 10 years; it was agreed between the parties that the mortgage would be satisfied from the usufruct in 10 years and that thereafter the appellant would.....
Judgment:

Desai, C.J.

1. This appeal has been filed by a defendant against whom a decree for possession, has been passed in the following circumstances. The respondent was a co-sharer in a village. He and some co-sharers of the village had a joint sir-holding which included the land in dispute in this appeal. By a private arrangement among the joint sir-holders the land in dispute was in the exclusive occupation of the respondent. Thus though he and some co-sharers jointly owned the land in dispute it was by private arrangement among them in the sole cultivation of the respondent. On 12-10-1944 he mortgaged it with possession with the appellant for 10 years; it was agreed between the parties that the mortgage would be satisfied from the usufruct in 10 years and that thereafter the appellant would restore the respondent to possession. The appellant entered into cultivatory possession of the land in dispute and continued to be in possession till the date on which the present suit was instituted against him by the respondent. The suit was instituted on the contentions that the usufructuary mortgage was substituted by a simple mortgage under Section 6 (g) (i) of the Zamindari Abolition and Land Reforms Act and that consequently the appellant was not entitled to remain in possession. The appellant resisted the suit pleading that he had been admitted as a tenant by the respondent after the execution of the mortgage, that he had acquired sirdari rights under the Zamindari Abolition and Land Reforms Act and the respondent was not entitled to recover possession from him and that the suit was barred by Section 180 (2), U. P. Tenancy Act and also by time. The suit Was decreed by the lower appellate Court on the finding that Section 14 of the Zamindari Abolition and Land Reforms Act deprived the appellant of a right to remain in the possession after 30-6-1952, that he did not acquire any rights either as a sirdar or as a bhumidar under the Act, that the respondent acquired rights of a bhumidar and that he was entitled to be restored to possession.

2. In Suresh Dutta v. Chhanga Lal, 1962 All LJ 612, to which' I was a party, it was 'held, thatthe words 'snare therein' in Section 14 (1) of the Act do not mean specific plots in an estate-and mean a fractional portion of an estate and that when a proprietor has mortgaged specific sir plots with possession, Section 14 would not apply and the mortgagor would not be entitled to claim bhumidari rights under Section 18 on the ground that the land was his sir. This appeal came up for hearing before Mithan Lal, J., who thought that the decision in Suresh Dutta's case, 1962 All LJ 612 required reconsideration and referred it to a larger Bench and so it has been laid before us.

3. When the respondent mortgaged the sir plots U. P. Tenancy Act of 1939 was in force. Under Section 9 of it sir right was not transferable except by gift or exchange and under Section 11 land ceased to be sir when the sir-holder became an exproprietary tenant but if the ex-proprietor regained his proprietary rights in it it again became his sir. Section 26 was as follows:

'26 (1) When the landlord of the whole of a mahal or of a specific area in a mahal transfers the whole of his proprietary right in such mahal or area ......... the landlord shall become an ex-proprietary tenant of his sir .........

(2) When the landlord of a share in a mahal or in a specific area in a mahal so transfers the whole of such share ......... the landlord shall become an ex-proprietary tenant of his sir ......... and which in the case of joint sir or joint khudkasht is demarcated by the officer empowered to fix the rent of the holding under the provisions of Section 36 of the United Provinces Land Revenue Act, 1901.

(3) When the landlord of the whole or of a share of a mahal ......... so transfers a part of such whole or of such share, or such area ........ the landlord shall become an ex-proprietary tenantof so much of his sir ......... as appertains or corresponds to such part and is demarcated by theofficer empowered to fix the rent of the holdingunder the provisions of Section 36 .........

(5) Every person who becomes, an ex-proprietary tenant under the provisions of this section ......... shall be entitled to all the rights conferred ......... on ex-proprietary tenants by this Act and ......... the rent ....... shall be fixed in accordance with the provisions of this, Act by the officer empowered to do so under the provisions of Section 36 .........

(6) A mortgage shall be deemed to be a transfer within the meaning of this section when it has the effect of transferring proprietary possession of the mortgaged property from the mortgagor ............'

Section 36 of the U. P. Land Revenue Act provided that when ex-proprietary rights accrued under the U. P. Tenancy Act the Collector would in the course of mutation proceedings pass an order specifying, and if necessary demarcating, the land in which such rights accrued and fixing the rent payable therefor and that if for any reason an order specifying and demarcating the land and fixing the rent payable had not been passed the land-holder or tenant could at any time during the, continuance of the ex-proprietary tenancy apply for the issue of such order. Section 27 renderednull and void an agreement for the relinquishment of ex-proprietary rights, whether it was entered into before or after they accrued; in other words ex-proprietary rights accrued by operation of law and it was not open to the mortgagor of sir land to prevent their accrual.

When a sir-holder mortgaged the sir land with possession it only meant that possession over the proprietary rights of the sir land was transferred to the mortgagee and not the cultivatory possession over them; he became an ex-proprietary tenant liable to pay rent to the mortgagee. On account of the possession over the proprietary rights being transferred to him the mortgagee became entitled to realise rent, as proprieto, and the sir-holder became liable to pay rent and that is why the law compulsorily made him an ex-proprietary tenant and fixed the rent to be paid by him to the mortgagee. The mortgage was of only the proprietary rights and the mortgagee was entitled, on account of the mortgage being a usufructuary one, to possession only over the proprietary rights. The sir-holder had also the right of exclusive possession on account of the land being his sir, but this right was not mortgaged by him and, therefore, the mortgagee could not claim that he had a right to be in cultivatory possession. In order that a proprietor is in possession of the land owned by him it is not essential that he must cultivate it himself; he is in possession even though the land is cultivated by a tenant, if he realises rent from him and, therefore, a usufructuary mortgage by a sir-holder of the sir land meant only this that the mortgagee came in possession of the proprietary rights over it and that the sir-holder became an exproprietary tenant liable to pay to him the rent fixed under Section 36 of the Land Revenue Act. The sir-holder could not relinquish the ex-proprietary rights that accrued to him. He could certainly relinquish the cultivatory possession by putting the mortgagee in cultivatory possession but he remained an ex-proprietary tenant of the same. On account of his being an ex-proprietary tenant he was entitled to remain in possession and, therefore, as soon as he put the mortgagee into cultivatory possession he became entitled to recover it back from him under Section 183 of the U. P. Tenancy Act, which laid down that

'Any tenant ......... preyenterl from obtaining possession of his holding ......otherwise than in accordance with the provisions of the law for the time being in force by -

(a) his land-holder ......... may sue the person ......... keeping him out of possession -

(i) for possession of the holding.'

The period of limitation for such a suit was three years commencing on the date on which he was prevented from obtaining his possession.

4. The respondent put the appellant into possession of the land in dispute on 12-10-1944 even though he became an ex-proprietary tenant by operation of law, He was not the sole sir-holder of the land in dispute; it was owned by him along with others. By virtue of the private arrangement he was only allowed to cultivate it exclusively prior to the mortgage. His sir rights had, therefore, to be demarcated and 'ex-proprietary renthad to be fixed, but this was not done. Though it was not done he became an ex-proprietary tenant and, since the appellant took cultivatory possession, he became entitled to recover it back from him under Section 183 within three years, i.e., by a sut instituted prior to 12-10-1947. He did not institute such a suit and, therefore, lost his right to recover possession as an ex-proprietary tenant. Under Section 45 the interest of a tenant was extinguished 'where the tenant has been deprived of possession and his right to recover possession is barred by limitation''. The result is that on 12-10-1944 the respondent lost sir rights and on 12-10-1947, he lost ex-proprietary rights and that on 30-6-1952 he was a mere intermediary of, possessing no sir rights in, and not being in cultivatory possession of, the land in dispute.

5. With effect from 1-7-1952 the Zainindari Abolition and Land Reforms Act came into force. All rights of the respondent intermediary in the land in dispute vested free from all encumbrances in the State under Section 6 (a) of it. Under Section 6 (g) (i)

'every mortgage with possession existing on. any estate or part of the estate on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such estate or part be deemed, without prejudice to the rights of the State Government under Section 4, to have been substituted by a simple mortgage.'

Therefore, the usufructuary mortgage under consideration was substituted by a simple mortgage with effect from 1-7-1952. The mortgagor's rights vested in the State and the usufructuary mortgage was converted into a simple mortgage subject to this fact. I do not understand what good it would do to the usufructuary mortgagee to convert his mortgage into a simple mortgage except that he would have the benefit of a longer period of limitation for filing a suit for recovery of the money. He cannot proceed against the mortgaged property on account of the rights in it vesting in the State and he cannot proceed against whatever rights the mortgagor gets under the Zamindari Abolition and Land Reforms Act because they cannot be said to be substituted security. Though the mortgage is converted into a simple mortgage, no property of the mortgagor can he proceeded against as charged property and saying that the creditor is a mortgagee is meaningless. This is, however, by the way; I am at present concerned with the question what right has been acquired by the respondent under the Zamindari Abolition and Land Reforms Act. Section 18 provides that land

'in possession of or held or deemed to be held by an intermediary as sir, khudkasht ......... on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary .......... who shall, subject to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof'.

The respondent could not claim to be a bhumidhar of the land in dispute under this provision because, as explained above, he was not in possession of, and did not hold, it as sir on 30-6-1962. The land cannot be deemed to have been held byhim as sir land on 30-6-1962 because only that land can be deemed to have been held as sir land which by an express provision contained in the Act is deemed to be held by him. For instance, Sections 14 (2) (a) and 15 (2) (a) mention what land is to be deemed to be held by an intermediary as sir land. Land held once by an intermediary as sir land but in which ex-proprietary rights accrued and were subsequently determined is not declared by any law to be land deemed to be held by the ex-sir-holder on 30-6-1952. A legal fiction can be created by the Legislature and not by a Court.

6. Under Section 19 land held or deemed to have been held on 30-6-1952 by a person as an ex-proprietary tenant is deemed to be settled by the State Government with him and he, subject to the other provisions of the Act, is entitled to take or retain possession as a sirdar. The respondent did not hold, and cannot be deemed to have held, the land in dispute as an ex-proprietary tenant on 30-6-1952 for the reasons given above; he, therefore, cannot claim to be a sirdar. If he had been in possession on 30-6-1952 it would have been as an ex-proprietary tenant and he would have become a sirdar; when he was not in possession it would be anomalous if he became a bhumidhar whose rights are higher than those of a sirdar, this is another ground for holding that he did not become a bhumidhar on 1-7-1952.

7. There is no other right that can be, or was, claimed by the respondent before us. He was a mere intermediary on 30-6-1952 and on all his rights vesting in the State with effect from 1-7-1952 he was left with no right. For the loss of his intermediary's rights he got compensation. Therefore, he cannot claim anything even on the ground of equity. When he had no right under the Act he could not succeed in the suit and it was liable to be dismissed on this ground alone regardless of whether the appellant retained or acquired any right under the Act or not. Still the question whether he retained or acquired any right under the Act is an issue that does arise in the suit and can be determined. This case has been referred to a Full Bench for determination of this question and I think we should determine it so as to settle the law. The appellant was a mortgagee in possession of the sir land and was in cultivatory possession of it on 30-6-1952. With effect from 1-7-1952 he became a simple mortgagee and as a simple mortgagee he had no right to be in possession of the mortgaged property, i.e., the proprietary rights in the land in dispute. But he did not lose cultivatory possession, which he had on 30-6-1952, unless Section 14 applied. Section 14--the material part of it--is as follows:

'(1) Subject to the provisions of Sub-section (2), a mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate.

(2) Where any such land was in the personal cultivation of the mortgagee on the date immediately preceding the date of vesting -

(a) if it was sir ......... of the mortgagor on the date of the mortgage, the same shall, for purposes of Section 18 be dismissed to be the six ..................... of the mortgagor .........;

(b) if it was not sir ............. the mortgagee shall, subject to his paying to the State Government ........... , be deemed, for purposes of Section 19, to have held such land on the date aforesaid as a hereditary tenant thereof ............

Provided that if the mortgagee fails to pay the amount aforesaid ......... , he shall thereupon lose all rights in such land which shall be deemed to be vacant land and he shall be liable to ejectment on the suit of the Gaon Sabha. .........'

This provision is supplementary to Section 6 (g) (i), which converts a usufructuary mortgage into a simple mortgage but does not say anything about the mortgagee's right to remain in possession or acquiring any right on account of his possession. The conversion of the usufructuary mortgage into a simple mortgage does not automatically deprive him of possession; there must be somebody who is entitled under the Zamindari Abolition and Land Reforms Act to take possession from him or to whom the right to possession is transferred on 1-7-1952; hence the necessity for a provision like Section 14.

8. Section 14 deals only with a mortgagee in possession of an estate or a share therein. An 'Estate' is defined in the Act to mean 'the area included under one entry in any of the registers described in clause (a) ............ of Section 32 of the U. P. Land Revenue Act, 1901, as it stood immediately prior to the corning into force of this Act, ......... and includes share in, or of an 'Estate'. The register described in Clause (a) of the Land Revenue Act that was in force on 30-6-1952 is a register of all the proprietors in the Mahal including the proprietors of specific areas specifying the nature and the extent of the interests of each, called Krewat in the Land Records Manual, which contains rules for the preparation of the registers mentioned in Sections 32 and 33. 'Share' has in the commercial world the meaning 'a definite portion of a property owned by a number in common', vide Murray's New English Dictionary. In this sense both the prepositions 'in' and ''of' are used with 'share', as would be clear from the instances of the use of the word given in the dictionary ('share of stock', 'share in a ship', 'share in river water', 'share of a new company'). Therefore, it cannot be said that because both the prepositions are used in Section 14 the word does not mean only a fractional share and includes a part, and no importance is to be attached to the use of the two prepositions before the word 'estate'. The meaning of 'share' does not change merely because they are used. I must confess my inability to understand the difference between 'share in an estate' and 'share of an estate'; most probably they mean the same thing and the conjunction 'or' serves only to connect the two synonyms. When 'share' does not mean 'part', the word used in the phrase 'share in or of an estate' does not mean 'part in or of an estate'.

When according to the definition 'estate' includes a share in an estate, why in Section 14 (1) the legislature spoke of 'share therein' is beyond comprehension. A share in a share in or of an estate doesnot mean anything more than a share in or of an estate and the words 'or share therein' are nothing but tautology. Such a defect is only a negligible part of defects to be expected in the Act which has been so badly and unintelligibly drafted and is full of so many lacunae. Another meaning of 'share' given in the dictionary is 'a part taken in (an action, experience, etc.)'; this is obviously not the sense in which the word is used in the provision. A third meaning is 'part, piece or portion (of anything) such as 'share of a Fariatick', ''a share of 'tomorrow'', this meaning is also not applicable to the word used in the provision. It is the first meaning given above that is to be adopted when considering Section 14, i.e., a 'share in an estate' means 'a fractional share in an estate' and not 'a part or specific area of an estate'. Since we are concerned with a share in 'the area included under one entry' in a Khewat we have to understand it in the sense in which it is understood by one preparing, or dealing with, a Khewat, i.e., to adopt the meaning given to it in the Land Records Manual.

In the language of the Land Records Manual 'share' means, and is always understood to mean, a fractional share and not a specific part. When A and B own land jointly so that each has an interest in every square inch of it they are said to have shares in it and are known as co-sharers in the Manual. If A owns a specific area and B owns another specific area, A alone is the proprietor of one area and B alone is the proprietor of the other area and neither of them can be said to have a share in the aggregate of the two areas for the simple reason that B has no interest at all in the land owned by A and vice versa and neither has an interest in every square inch of the aggregate of the two areas. 'Share' may mean 'Part' when dealing with intangible property having no quantity, but when dealing with an area, 'share' means share in the whole of it and if a person has no interest at all in a part of it he cannot be said to have a share in the whole of it.

Section 32 of the Land Revenue Act and the Land Records Manual both make a clear distinction between 'share' and 'part' in or of the area covered by an entry in the Khewat. If a Mahal is undivided and the whole area of it is owned by two persons A and B jointly, whether their shares are equal or unequal, the whole area is shown under one entry and the nature and the extent of the interests of the co-sharers are shown by specifying their shares in terms of biswas or annas. In the Khewat the first column is of the name of thok and patti with the name of the lambardar, the second column is of 'serial number of share '(Khata)', the third column is of amount of share, the fourth column is of area of share, the fifth column is of revenue of share and the sixth column is of the name of proprietors with the nature and extent of the interest of each. 'Serial number of share (khata)' is the entry referred to in the definition of 'estate'. All the area entered in col. 4 against each khata is an estate, as also a share in it. There cannot arise any question of proprietorship over a specific area in such an entry; if the area is owned by two 'or more persons they have a share in everysquare inch of it. Thus what is meant by 'share' in the preparation of a Khewat is a fractional share and not a part. A 'part' may include a 'share', but a 'share' does not include a 'part' and the concept of a share is quite different from that of a part.

Entries regarding proprietors of specific area are dealt with in paragraph 178 of the Manual and the question of such an entry arises when mutation has been ordered 'not in respect of a share but in respect of a specific area'. This provision confirms the distinction between a share and a part consisting of a specific area. If a mutation has been ordered in respect of a share the name of the person in whose favour it is ordered will be simply added to the existing list of co-sharers; but if it has been ordered in respect of a specific area an entry about it will be made separately from the main entry under the heading 'haqiyat-mutafarriqua' below the principal Khewat-Khata. Paragraph 179 deals with entries of 'mortgages in possession of specific plots not being fractional shares'; they are to be made not in the Khewat itself but on loose sheets in a certain form and the loose sheets are to be attached to the Khewat. The loose sheets are described in paragraph 179 as a supplement to the Khewat and are to be filed along with the Khewat. Being something in addition to the Khewat they are not a part of it; therefore, entries made in them are not entries in a Khewat. Only the Khewat is referred to in Section 32 of the Land Revenue Act and not the sheets containing list of mortgagees in possession of specific plots. Entries in the sheets are made not entrywise or khatawise as in a Khewat but mortgage-wise; vide form P-19 given in paragraph 179. Therefore, an area entered under a serial number in a sheet prepared in form P-19 is not an estate.

When a co-sharer mortgages with possession his share or a portion of it an entry in respect of the mortgagee is made in the Khata of the Khewat in which an entry of the co-sharer is made; this entry is quite different from an entry made in form P-19 in a sheet to be attached to the Khewat. A Khewat includes proprietors of specific areas but does not include mortgagees in possession of specific areas; an area included in a Khata of haqiyat-mutafarriaqa is an estate but not an area included in an entry in a sheet prepared in form P-19 and attached to the Khewat. The serial numbers in the sheet being simply serial numbers of mortgages are not Khatas.

9. Persons who own a share in a mahal are known as co-sharers. Only a co-sharer has a share in the mahal; it is on account of his having a share along with one or more persons that he and the others are all called co-sharers. A proprietor of a specific area carved out of the area of a mahal, the remaining area continuing to be owned jointly by the co-sharers of the Mahal, is not a co-sharer under the U. P. Tenancy Act and the Land Revenue Act. He is the exclusive proprietor of the area and has no interest at all in the remaining area of the mahal. Though this specific area is a part of the mahal, since his interest is confined exclusively to it and does not extend to every square inch of the area of the mahal, he isnot a co-sharer and is a mere proprietor of a specific area. When Section 246 of the U. P. Tenancy Act refers to 'two or more co-sharers in any right, title or interest' it refers, with regard to a mahal, to persons who have a share in it and not to proprietor of a specific area carved out of the area of the mahal.

10. The Legislature had the distinction between 'share' and 'part' in mind when it used one word in the definition of 'estate' and Section 14 (1) and the other word in Section 6 (g). It was by design and not by accident that one word was used in one context and the other word in another context; the Legislature made its design clear by using the word 'bhag' as equivalent to ''part'' and the word 'ansh'' as equivalent to 'share''. The scopes of Sections 6 (g) and 14 (1) are quite different; as I said earlier the scope of Section 6 (g) was wider, it being to convert every usufructuary mortgage into a simple mortgage. As the object was to convert every usufructuary mortgage into a simple mortgage it used the wide phrase 'estate or part of the estate'. This would include an estate and also a specific area included in an estate.

The Legislature was alive to the fact that proprietors used to mortgage with possession not only shares but also specific areas and the wide phrase 'any estate or part of the estate' includes mortgages of both kinds. When it came to the question whether it should deprive a usufructuary mortgagee of his possession and transfer it to the mortgagor it made a distinction by enacting Section 14 to apply only to a mortgagee in possession of an estate or a share therein. It is immaterial to consider whether this was by design or accidental; we have to take the fact as it is, it is not open to this Court to redraft Section 14 because legislating is beyond its jurisdiction. It can interpret or construe but cannot re-construct. Once it finds that 'share' does not include 'part' it is beyond its power to read 'share' as if it were 'part', even if it is of the view that the legislature used 'share' accidentally for the intended word 'part'. If there is any mistake in the enactment of Section 14 (1) it can be corrected by the Legislature and not by the Court even' ii it were left with no doubt that there is a mistake.

Under Section 14 (1) a mortgagee in possession of only a share in an estate is deprived of his right to remain in possession, a mortgagee in possession of a specific area is not deprived of his right to remain in possession. The distinction between the two is not attacked as unconstitutional and, therefore, we are not called upon to decide whether there is any rational basis for it. That there may be no rational basis for it is no justification whatsoever for our saying that it does not exist at all. So many enactments are struck out by Courts in India on the ground that they make a discrimination without rational basis that it cannot be argued that the absence of rational basis disproves the existence of discrimination itself.

It was not argued before us that the discrimination would offend against Article 14 of the Constitution and that we must interpret Section 14 (1) in such a way as to avoid this result. But even if it had been argued I would have found itdifficult to accept it because firstly I am not satisfied that there is no rational basis for the distinction and secondly once a discrimination is established as a fact it is impossible to avoid it as the Court's duty is not to avoid discriminations at all cost. A Court cannot avoid a discrimination by a process amounting to judicial legislation. The ban on a usufructuary mortgagee's right to remain in possession as such of 'any Land' in an estate in his possession assumes that otherwise he would have a right to remain in possession of any land in it. As a mortgagee in possession of a share in an estate he would have a right to be in possession of any land in the whole estate. A usufructuary mortgagee of a specific area can have a right to be in possession of any part of the area but cannot have a right to be in possession of any land not included in the area and there would be no occasion for banning his right to be in possession of any land in the whole estate. Even without the ban he would have no right to be in possession of any land other than the specific land mortgaged with him. The assumption involved in the ban that he has a right to be in possession of any land in the whole estate means that as a usufructuary mortgagee he has no interest in every land, in other words that he is a usufructuary mortgagee of a fractional share and not of any specific area of the estate.

11. I am not at all impressed by the argument that the interpretation that I have placed would cause an anomaly or absurdity. An anomaly that must be avoided by a Court by placing a particular interpretation upon words used by a legislature is an anomaly arising in reality from another interpretation; a Court usurps legislative jurisdiction if it imagines that an anomaly would arise from one interpretation and uses the fake anomaly as a justification for placing another interpretation. If what a Court imagines to be an anomaly is a result intended by the legislature itself the Court cannot substitute its own judgment for the legislature's judgment and hold that the law is what it thinks it should be and not what the legislature has intended it to be. An anomaly is not to be created or imagined by a Court as a plank on which to rest its own idea, of what should be the law. A Court cannot, because a certain result naturally flowing from the words used by a legislature and intended by it is not in accordance with its own concept of justice and reasonableness, avoid that result by arguing that it is anomalous and place another interpretation, upon the words, because that would be nothing but judicial legislation.

I find that no anomaly arises at all from the interpretation that I have placed and I say this because a good and intelligible reason can be advanced for the legislature's making a distinction between a usufructuary mortgagee of a fractional share and a usufructuary mortgagee of a specific area in Section 14. A usufructuary mortgagee of a fractional share has a right to be in possession of the mortgagor's fractional share in the proprietary rights, but this possession can only be a symbolical possession to be exercised through receipt of a share in the rents and profits of the proprietary rights. There cannot be what is called physical or actual possession of a fractional sharebecause it is not a tangible property. One cannot see a fractional share in a property, one can only conceive of it and, therefore, possession of it can only be conceived and cannot be visible. On the other hand possession over a. specific area, which is a tangible property, can be physical or actual possession which is visible. When a person usufructuarily mortgages his fractional share he thereby gives the mortgagee a right of being only in symbolical possession of the mortgaged property through receipt of rents and profits and does not confer upon him a right to be in physical possession of any specific area which right did not vest in himself. But when he usufructuarily mortgages a specific area which was in his physical possession he confers upon him a right to be in physical possession of it. Consequently as regards actual possession, the status of a usufructuary mortgagee of a specific area is higher than that of usufructuary mortgagee of a fractional share, and it is because of the former's having a right to be in physical possession of a specific area, which right is denied to the latter, that the legislature gave the former a right not given to the latter.

Under the Act all the proprietary rights have vested in the State free from all encumbrances and when the legislature through the Act gave fresh rights to persons it was not bound by any law either to give fresh rights of a particular nature or to give fresh rights to a particular person. It was at its absolute discretion to decide what kind of rights should be granted and upon whom. One principle, and it is an intelligible principle, that seems to have been at the back of its mind was that some right should be given to a person who was in actual possession on 30-6-1952, and, therefore, a usufructuary mortgagee of a specific area was granted a right under the Act, though it was not given to a mortgagee of a fractional share.

12. The words 'any such land' in Section 14 (2) do not make any sense because no particular land is referred to in Sub-section (1). The provision that a usufructuary mortgagee shall have no right to be in possession of 'any land' in an estate is not a provision with regard to any particular land. When all land of the estate is declared to be free the provision in Sub-section (1) can be said to refer to all the land of the estate and the word 'such' would be absolutely out of place. Sub-section (2) would make sense if the word were left out and reading it this way I find the meaning of Sub-section (2) to be this. If a usufructuary mortgagee of a fractional share was on 30-6-1952 in possession of what was previously sir of the mortgagor, it would be deemed to be his sir for purposes of Section 18 and if it was not, the mortgagee would be entitled to acquire hereditary tenant's rights by paying a certain amount to Government within a certain time and on his failing to do so it would be deemed to be vacant land and he would be liable to be ejected at the instance of the Gaon Sabha. If the land was on 30-6-1952 in possession of a usufructuary mortgagee, not of a fractional share but of a specific area, be would not be deprived of his right to remain in possession, the mortgagor would not acquire bhumidhari rights even if the land was his sir previously and the mortgagee would beable to acquire hereditary tenant's rights by paying the required amount to the Government and would not be liable to be ejected at the instance of the Gaon Sabha even if he did not acquire hereditary tenant's rights, in other words he would continue to be in possession. He does not acquire any right under any provision of the Act though he remains in possession without any right. It may be that the State can eject him but even if it cannot it does not follow that he can be ejected by his mortgagor. It might be an omission on the part of the legislature not to have laid down anything about him but it is impossible for this Court to fill up the omission.

13. The view that I expressed in the case of Suresh Dutta 1962 All LJ 612 has not been shown to be erroneous.

14. In the end I find that if the appellant is liable to be ejected he is not liable to be ejected under Section 14 of the Zamindari Abolition and Land Reforms Act or on a suit by the respondent. The appeal, therefore, should be allowed, the decree of the lower appellate Court should be set aside and the decree of the trial Court should be affirmed. The appellant should get his costs of the lower appellate Court and this Court.

Oak, J.

15. I have read the judgment prepared by the learned Chief Justice. I agree that at one stage the plaintiff became an exproprietary tenant, that he lost Sir rights, and that later he lost rights as an ex-proprietary tenant also. That was the position under the U. P. Tenancy Act. I now proceed to consider how the situation was altered under the U. P. Zamindari Abolition and Land Reforms Act (hereafter referred to as the Act).

16. The main question for consideration in this second appeal is whether a mortgage of a specific plot is covered by Section 14 of the Act. In 1962 All LJ 612 it was held by a Division Bench of this Court that, the words 'share therein' in the expression 'an estate or share therein' in Sub-section (1) of Section 14 do not mean specific plots in an estate, but a fractional portion of the estate. Section 14 of the Act will not apply to a mortgage of specific plots. In such a case the mortgagor will not be entitled to claim Sir rights in the mortgaged property so as to be entitled to acquire Bhumidhari rights therein under Section 18 of the Act. I regret that I am unable to agree with that view.

17. Section 14 of the Act states :-

'(1) Subject to the provisions of Sub-section (2), a mortgagee in possession of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate.

(2) Where any such land was in the personal cultivation of the mortgagee, on the date immediately preceding the date of vesting -

(a) If it was Sir or Khudkasht of the mortgagor on the date of the mortgage, the same shall for purposes of Section 18, be deemed to be the Sir or Khudkasht of the mortgagor or his legal representative;

.....'

18. The term 'estate' has been defined in Clause (8) of Section 3 of the Act:

' 'Estate' means and shall be deemed to have always meant, the area included under one entry in any of the registers described in Clause (a), (b) (c) or (d) ............ of Section 32 of the U. P.Land Revenue Act, 1901 as it stood immediately prior to the coming into force of this Act ......... and includes share in or of an estate.'

Clause (a) of Section 32 of the U. P. Land Revenue Act was in these terms:-

'A register of all the proprietors in the Mahal including the proprietors of specific areas specifying the nature and extent of the interest of each.'

19. Chapter XI of the Land Records Manual, 1944 Edition (hereafter referred to as the Manual) contains provisions for preparation of the Khewat. Paragraph 173 of the Manual described the nature of the Khewat:-

'The proprietary Khewat is a register of all the proprietors in a Mahal, including proprietors of specific areas and must specify the nature and extent of the interest of each.'

Paragraph 178 dealt with proprietors of specific areas. According to sub-paragraph (1) of paragraph 178:-

'Where mutation has been ordered, not in respect of a share but in respect of a specific area, the proprietor of such area shall be shown separately from the main body of co-sharers in a sub-Khata.'

Paragraph 179 provided for a list of mortgagees of specific plots. According to sub-paragraph (1) of paragraph 179:-

'For any Mahal in which there are mortgagees in possession of specific plots not being fractional shares, the Patwari shall attach to the Khewat one or more pages in the following form ...... in which he shall enter all such mortgagees ......'

In sub-paragraph (2) of paragraph 179, those additional pages were described as a supplement to the Khewat.

20. Now, a mortgage is a transfer of property. A mortgage involves division of ownership. Equity of redemption vests in the mortgagor; while the remaining portion of the ownership vests in the mortgagee. Both the mortgagor and the mortgagee are proprietors of the land. A register of all proprietors in a Mahal was prescribed by Clause (a) of Section 32 of the Land Revenue Act. Entries made under paragraphs 178 and 179 of the Manual were in pursuance of that direction. Entries prepared under paragraph 178 of the Manual are undoubtedly a part of the Khewat. Entries made under paragraph 179 of the Manual are also a part of the Khewat-register of proprietors. According to the Land Records Manual, the Patwari had to allot a separate entry for a specific plot owned by a proprietary co-sharer both before and after a mortgage. A specific plot, therefore, constituted an 'estate' as defined by Act No. I of 1951.

21. This view finds further support from the closing words of the definition. The definition of 'estate' ends with these words: 'and includes share in or of an estate'. These words cover two separate expressions--(i) 'share in an estate', and (ii) 'share of an estate'. If the expression 'share in an estate' is understood in the sense ofa fractional share, it is possible to bring a specific plot under the description 'share of an estate'.

22. Section 6 of the Act enumerates consequences of the vesting of an estate in the State. Clause (g) of Section 6 deals with usufructuary mortgages. According to Sub-clause (i) of Clause (g) of Section 6, a mortgage with possession was substituted by a simple mortgage. Section 6 (g) (i) mentions mortgage of an estate or part of an estate. Admittedly, a specific plot is a part of an estate. It was conceded for the appellant that, the mortgage in question got converted into a simple mortgage under Section 6 (g) (i) of the Act. The question remains whether the mortgage in question falls under Section 14 also.

23. The marginal note to Section 14 is: 'Estate in possession of a mortgagee with possession.' Sub-section (1) of Section 14 mentions 'an estate or share therein.' The question arises whether the property involved in the present case falls under that description. The expression used in Section 6 (g) (i) is, 'part of an estate'; while the expression used in Section 14 (1) is, 'share therein'. It is true that the expression 'zamindari share' is often understood in the sense of a fractional share. But neither the word 'part' nor the word 'share' is a term of Article If a mortgage' of a specific plot is to be excluded from Section 14, the position would be anomalous. On one hand, the mortgage with possession got converted into a simple mortgage under Section 6 (g) (i). Yet the mortgagee need not part with possession under Section 14 (1) of the Act. This anomaly can be avoided by assuming that Section 6 (g) (i) and Section 14 (1) are co-extensive. If a mortgage with possession got converted into a simple mortgage under Section 6 (g) (i), the mortgagee ceased to have any right to hold the land under Section 14 (1).

24. In the first place, a specific plot under mortgage constitutes an estate as defined by the Act. Secondly, the rule of harmonious constructions requires that, Section 6 (g) (i) and Section 14 (1) should be understood in the same sense. In view of these considerations, I have come to the conclusion that a mortgage of a specific plot is covered by Section 14 (1) of the Act.

25. Sub-section (2) of Section 14 mentions 'any such land.' That expression means land covered by Sub-section (1) of Section 14. We have seen that the land involved in the present case is covered by Section 14 (1). So the present case attracts Section 14 (2) also. The land was in the personal cultivation of the mortgagee on 30-6-1952. So Clause (a) of Sub-section (2) becomes applicable. According to Clause (a), if the land was Sir of the mortgagor on the date of the mortgage, the same shall, for purposes of Section 18, be deemed to be the Sir of the mortgagor. In the present case the plaintiff lost Sir rights in the land under Section 11. u. P Tenancy Act But Section 14 (2) (a) of Act No. 1 of 1951 introduces a legal fiction. The land should he deemed to be the Sir of the plaintiff for purposes of Section 18.

26. Section 18 of the Act provides for acquisition of Bhumidhari rights. Section 18 states :-

'(1) ..................... an lands --

(a) in possession of or held or deemed to be held by an intermediary as Sir, Khudkasht or an intermediary's grove,

(b) ... ... ... ... ... ... ... ... ... ...

(c) ... ... ... ... ... ... ... ... ... ...

(d) ... ... ... ... ... ... ... ... ... ...

on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary ...... who shall ............ be entitled to take or retain possession as a Bhumidhar thereof.'

27. Clause (a) of Sub-section (1) of Section 18 contemplates three alternatives. The land was not in cultivatory possession of the plaintiff on 30-6-1952. The land was not actually held by the plaintiff as Sir. We have seen that, by virtue of Section 14 (2) (a) of the Act, the land is to be deemed to be the Sir of the mortgagor for purposes of Section 18. Since the land is to be deemed to be held by the plaintiff as Sir on 30-6-1962, he became a Bhumidhar under Section 18 of the Act.

28. It may be pointed out that the two lower Courts agreed that the plaintiff is Bhumidhar of the land in dispute. There are five grounds in the second appeal. There is no specific ground against the finding of the lower Courts that the plaintiff is a Bhumidhar.

29. Now we have to consider whether the defendant acquired the rights of an Adhivasi or a Sirdar. Sripat Narain Singh, appearing for the defendant-appellant, did not seriously press the appellant's claim to Adhivasi rights. According to ground No. 1, the appellant was recorded as an occupant in 1356 F. The appellant probably relies upon Section 20 (b) of the Act. According to the judgment of the trial Court, the defendant's name was recorded as a sub-tenant in the Khasra of 1356 F. According to the Full Bench decision in Ram Dular Singh v. Babu Sukhu Ram, 1963 All LJ 667, such an entry did not qualify the defendant for acquisition of Adhivasi rights under Section 20 (b) of the Act.

30. The appellant also relies upon his possession during the year 1359 F. According to Section 3 of the U. P. Act No. XXXI of 1952 (hereafter referred to as the Supplementary Act), if a person was in cultivatory possession during the year 1359 F., he became either an Asami or an Adhivasi. But there is an Explanation to Sub-section (1) of Section 3 of the Supplementary Act. According to the Explanation, a person shall not be deemed to be in cultivatory possession of the land, if he was cultivating it as a mortgagee with possession. The year 1359 F. corresponds to the period from 1-7-1951 to 30-6-1952. That was just before the date of vesting under Act No. 1 of 1951. During that period the defendant was a mortgagee. It is true that the defendant cultivated the land during 1359 F. But he was cultivating it as a mortgagee with possession. In view of the Explanation to Sub-section (1) of Section 3 of the Supplementary Act the defendant is not to be deemed to be in cultivatory possession of the land during 1359 F. He did not become either an Asami or an Adhivasi under Section 3 of the Supplementary Act. Since the defendant failed to establish Adhivasi rights, there is no questionof acquiring rights as a Sirdar under Section 240-B of Act No. 1 of 1951.

31. The net result is this. The plaintiff became a Bhumidhar under Section 18 of the Act No. 1 of 1951. The defendant did not acquire any rights as an Asami, Adhivasi or Sirdar. The defendant occupied the land in 1944 as a mortgagee. It was agreed that the mortgage money would be satisfied by the usufruct of the property for ten years. The defendant remained in possession for ten years. The mortgage money has been paid oft. The defendant has no longer any right to occupy the land. The suit was instituted in the year 1955. The suit for possession was rightly decreed by the learned Additional Civil Judge.

32. In my opinion, the Second Appeal should be dismissed with costs.

Gyanendra Kumar, J.

33. I have had the advantage of reading the learned judgments of My Lord, the Chief Justice and my brother Oak. With the greatest respect to the learned Chief Justice, I agree with the conclusions arrived at by Oak, J., although for somewhat different reasons.

34. Bereft of details and side-issues, the three real questions for determination in this case are:-

'(1) Whether an isolated or specific plot is a part of 'estate' as defined in Section 3 (8) of the U. P. Zamindari Abolition and Land Reforms. Act?

(2) Whether an isolated or specific Sir plot falls within the meaning of the words 'an estate or share therein' as used in Section 14 (1) of the U. P. Zamindari Abolition and Land Reforms Act?

(3) To what rights and reliefs, if any, is the plaintiff entitled?

35. Taking the first question first, let us se& what was the position before the commencement of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act). At that time under Section 31 of the U. P. Land Revenue Act the Collector had to maintain two types of Registers--one for revenue paying Mahals and the other for revenue-free Mahals. In the province of Agra, in respect of revenue paying Mahals, there were three kinds of khewats: (1) those in which the entire land was in possession of tenants and the zamindars had only a right to realise rents, but they were not in actual possession of any particular area. The entry in the khewat in respect of that kind of zamindari used to mention fractional share of each zamindar and further gave his corresponding area in the entire mahal; (2) those in which the co-sharers were each in possession of a particular area in the Khewat. In that kind of zamindari also the Khewat entry was either in respect of the shares giving the corresponding area or in respect of specific area alone, and (3) those in which persons were proprietors of specific or isolated plots, without any other co-sharers. Inasmuch as land revenue was payable in respect of those plots as well, there used to be an entry in the Khewat about it, mentioning the amount of land revenue payable as also the area of these plots. These owners of isolated or specific plots were of two kinds: those who hadno share in the joint land or in the general administration of the village (popularly known as plot-proprietors), and those who had a share in the joint land also and could take part in the administration of the village. Owners of the specific plots of both kinds were, however, zamindars, who had an entry in the khewat and were liable to pay land revenue. Being proprietors, they are also included in the definition of intermediaries under the U. P. Zamindari Abolition and Land Reforms Act. It was not the intention of the legislature to leave out their land, and to maintain these intermediaries in spite of the abolition of the zamindari. To take another instance, an owner of a specific or isolated plot who was originally a Muafidar, (i.e., a revenue free proprietor) but whose muafi had been resumed and land revenue fixed thereon was still the completeowner of his erstwhile muafi plot, he was liable to pay land revenue after resumption and his name was then entered in the revenue paying Khewat. It is, therefore, not correct to say that specific or isolated plots would not be included in the term 'estate' as defined in Section 3 (8) of the Act.

36. There can be no two opinions that the very object of the Act is to abolish the proprietary rights of all intermediaries. Sections 4 and 6 of the Act clearly provide that all estates situate in the Uttar Pradesh shall vest in the State, except as provided by the Act itself. In the Act there is no provision for preserving a specific plot from vesting in the State. If an isolated or specific plot was not a part of 'estate', it would evidently not vest in the State and its proprietor will continue to be an intermediary. This could never be the intention of the legislature; in fact it would be in utter violation of the mandatory provisions of Sections 4 and 6 of the Act.

37. As already noted in the judgments of the learned Chief Justice and Oak, J., the w(sic) 'estate' as defined in Section 3 (8) of the Act means '......... the area included under one entry in any of the registers described in ......... Section 32 ......... or Section 33 of the U. P. Land Revenue Act ............ and includes share in, or of an estate'.

38. It is the cardinal principle of interpretation of statutes that no word or words used by the Legislature can be deemed to be redundant, superflous or tautological. Keeping this principle in view, we find that the word 'estate' has been defined with reference to the area included under one entry, and not with reference to the area under one entry. Evidently a part of the area was also intended to be covered therein, that is why the legislature also used the words 'share of in addition to the words' 'share in' while defining the term 'estate'. In other words, an estate includes a fractional share in the area as well as defined share of an estate, such as a specific plot. The dictionary meaning of the word 'share' is also 'portion or part'. Therefore, when we speak of a share of an estate, we mean nothing more than a portion or part of an estate. Thus the words 'share of and 'share in' are not used merely by way of tautology. On the other hand, the words 'share in' mean fractional share in an estate, while the words 'share of mean part or portionof an estate, which will have reference to areas apart from the fractional share, e.g., a specific plot. Every entry in the khewat would necessarily relate to a particular area big or small and the shares noted in the entry will correspond to the area proportionate to that share. I, therefore, answer the first question in the affirmative and hold that an isolated or specific plot is a part of 'estate' as defined in Section 3 (8) of the U. P. Zamindari Abolition and Land Reforms Act.

39. Before embarking on the second question, it would be useful to consider the nature of the rights and interest which the plaintiff had vis-a-vis the plot in suit. In the first place we find that the plaintiff-respondent was not the complete owner of plot No. 182 in suit. This was his Sir plot. 'Sir' rights, as defined in the U. P. Tenancy Act 1939 (which is applicable in the present case as the mortgage was made in the year 1944) consisted of two kinds of rights, i.e., proprietary rights and cultivatory rights. Thus the plaintiff has a proprietary share in that plot corresponding to his share in the Khewat. The plaintiff being not the complete owner of the plot, all the other co-sharers also had a share in it. In addition to his fractional share in the plot, however, the plaintiff as Sir-holder had acquired the right to be in sole possession of the plot and to cultivate it exclusively. That is how the entire plot had become his Sir. But this right of cultivation was subject to his liability to account to the other co-sharers.

40. When the plaintiff-respondent usufructuarily mortgaged the plot in 1944, he passed on the mortgagee his fractional proprietary share in the plot and also gave him, by mutual consent, the right to cultivate it and be in exclusive possession thereof. It was open to the plaintiff, under the U. P. Tenancy Act, not to part with this cultivatory right and retain the same. In that event he would have become ex-proprietary tenant of the plot. In this case, however, he does not appear to have claimed that right, but had chosen to put the mortgagee in actual possession of the plot. He thus gave to the mortgagee not only his fractional proprietary share in the plot but also his cultivatory right therein. In the present case, therefore, the mortgage was in respect of a fractional share of the proprietary rights, coupled with delivery of cultivatory possession of a particular area comprising the sir plot in suit.

41. Now coming to the second question, wefind that under Section 6 (g) (1) of the Act, everymortgage with possession existing on any estate orpart of an estate on the date immediately preceding the date of vesting, shall be deemed to havebeen substituted by a simple mortgage. It issignificant to note that in Section 6 (g) (1) onlythe words 'existing on any estate or part ofan estate' have been used. The words 'share-in an estate' have not been used. Therefore,if the words 'share' and 'part' were not synonymous or co-extensive in sense, it would meanthat usufructuary mortgage of a fractional sharein an estate would not become, a simple mortgage, but would still continue as mortgage withpossession. This could never be the intention ofthe legislature.

42. On the other hand, in contradistinction with the words used in Section 6 (g) (i) of the Act, Section 14 (1) provides that 'a mortgagee in possession of an estate or share therein' shall cease to have any right to hold or possess as such any land in such estate. Section 14 (1) does not in terms refer to 'part of an estate'. Thus if the words 'share' and 'part' were not co-extensive the result would be that while mortgagees in possession of an estate or a fractional share therein shall cease to have any right to hold and possess such land, the usufructuary mortgagees of defined areas or specific plots shall continue to have a right to hold and possess their lands, in spite of the vesting of the estate. Another incongruous result which will follow would be that if a person had mortgaged 1/100th share of his sir property, he would become its Bhumidhar under Section 14 read with Section 18 of the Act and would toe entitled to regain its possession; while if he had mortgaged 49 out of 50 specific plots constituting his sir land, he would be deprived of this benefit in respect of such a large portion of his property. This would be most anomalous and would also be in utter contravention of the latter part of Section 14 (1) itself, which clearly covers all types of land in such estate including a fractional share, a defined area and a specific plot. Thus it is another reason for holding that the words 'share in' and 'part of an estate denote one and the same thing. This is the only way how the illdrafted provisions of Sections 3 (8), 6 (g) (i) and 14 (1) of the Act can possibly be reconciled and harmonised. It is a well recognised principle of interpretation of statutes that, as far as possible, the different provisions of an Act should be read in harmony with one another. Therefore my answer to the second question is that an isolated or specific sir plot also falls within the meaning of the words 'an estate or share therein' as used in Section 14 (1) of the U. P. Zamindari Abolition and Land Reforms Act.

43. For determining the third question it is noteworthy that Clause (2) of Section 14 of the Act only refers to such land as is mentioned in the first clause and not to any share in or part of an estate. In order that a mortgagor of Sir may be able to derive the benefit of Sub-clause (a) of Clause (2) of Section 14 of the Act, there are only two termini co (sic) or final points of time for determining the same: the first is that on the date of the mortgage the Sir land must be in actual cultivatory possession of the mortgagor. Even it was his Sir, yet if the land was not in his cultivatory possession on the date of the mortgage, he will not get the benefit of Sub-clause (a) of the second clause of Section 14. The second condition necessary for the application of the clause is that the land must be in the personal cultivatory possession of the mortgagee on the date immediately preceding the date of vesting. If these two conditions are fulfilled, the mortgagor or his legal representative shall get the benefit of Section 14 (2) (a) by becoming a bhumidhar of the land as envisaged by Section 18 of the Act. What had happened to the land or t6 the rights of the mortgagor in between the date of the mortgage and the date of vesting will, from this point of view, become wholly immaterial. That beingso, whether the mortgagor could claim ex-proprietary rights but did not claim the same or whether after getting the same he lost them by limitation will therefore also become immaterial.

44. While enacting Section 14 of the Act, the legislature should have known that the mortgagee in question must have got possession over the Sir land, as a result of the usufructuary mortgage. It, therefore, follows that the mortgagee could be in personal cultivation of the Sir land only if ex-proprietary rights had not been claimed or had been given up by the mortgagor. If the ex-proprietary rights had been claimed by him, the Sir land could not have been in the cultivatory possession of the mortgagee on the date of vesting. The second clause was therefore enacted for the benefit of those Sir-holders who were actually cultivating the plot on the date of the mortgage, but had put the same into cultivatory possession of the mortgagee and the mortgagee continued to be in possession till the date of vesting. The question of retention or loss of the ex-proprietary rights in the plot is therefore not relevant at all for the purposes of claiming the benefit of Sub-clause (a) of the second clause of Section 14.

45. In view of the fact that the legislature must have known that possession over the usufructuarily mortgaged land could not possibly be with the mortgagor and could only be with the mortgagee, and further, in view of the fact that the mortgagor could not possibly claim bhumidhari rights in the land under Section 18 on account of his being out of possession, it employed a fiction of law and used the following relevant words in Section 18 (1) of the Act:

'............ All lands ...... deemed to be held by an intermediary as Sir ...... on the date immediately preceding the date of vesting shall be deemed to be settled by the State Government with such intermediary ......... who shall ...... be entitled to take or retain possession as bhumidhar thereof.'

46. Extending the corresponding legal fiction to the provisions of Section 14 (2) of the Act, the legislature has again used similar words in that context, viz., '.......,.... if it was Sir ...... of the mortgagor ......... the same shall, for the purposes of Section 18, be deemed to be the Sir of the mortgagor or his legal representative.' In other words, if the aforementioned two conditions of Clause (2) of Section 14 are fulfilled, that is, the mortgagor was in cultivatory possession of his Sir on the date of the mortgage and the mortgagee was in cultivatory possession on the date of vesting (irrespective of the fact that the mortgagor was not in possession on the date of vesting) the mortgagor will be deemed to hold the land as Sir and will acquire bhumidhari rights under Section 18 read with Section 14 of the Act.

47. For the above reasons, I regret that I cannot agree with the findings and conclusions to the contrary arrived at in 1962 All LJ 612. Therefore, my answer to the third question is that the plaintiff had acquired bhumidhari rights under Section 18 (1) read with Section 14 (2) (a) of the U. P. Zamindari Abolition and Land Reforms Act and was as such entitled to take possession of the plot in suit.

48. For the reasons recorded above, I am of the view that the suit of the plaintiff-respondent (Chirrau Singh) for possession of the land was rightly decreed by the learned First Additional Civil Judge in appeal before him. The instant second appeal must, therefore, be dismissed with costs.

BY THE COURT.

49. In accordance with the majority opinion, the second appeal is dismissed with costs.


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