Full Judgment Text
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PETITIONER:
MISHRI LAL (DEAD) BY LRS.
Vs.
RESPONDENT:
DHIRENDRA NATH (DEAD) BY LRS. & ORS.
DATE OF JUDGMENT: 06/04/1999
BENCH:
Umesh C. Banerjee, M. Jagannadha Rao
JUDGMENT:
BANERJEE,J.
This appeal is directed against the order of the
Madhya Pradesh High Court confirming the preliminary decree
passed by the trial court and allowing the plaintiffs’ claim
for redemption in respect of mortgaged houses and khudkasht
land. 2. The contextual facts record that the
defendant-mortgagee has challenged the right of the
plaintiff-mortgagor to redeem assorted items of property
which were mortgaged prior to the enactment of the Madhya
Bharat Zamindari Abolition Act, 1951 (Samvat 2008). The
learned trial judge decreed the suit and the appeal
therefrom however before the learned single judge resulted
in an order of reference before a Division Bench by reason
of expression of a view contra, by another Single Judge of
Indore Bench in second appeal No.498 of 1965, (Yakub son of
Kasamji v. Yakub son of Fakir Mohammad & Ors.) 3. On
however a detail analysis of facts it appears that the
plaintiff- respondent being the Zamindar of village
Kamalpur, during the subsistence of the Zamindari, executed
two mortgage-deeds dated 4.8.1947 and 5.1.1948 in favour of
the defendant-appellant for securing thereunder a loan
against movable property and houses, Zamindari and Khudkasht
lands. The possession of the mortgaged property as the
record shows was delivered to the mortgagee-defendant and in
a suit filed for redemption of the mortgage, the trial court
as noted above decreed the suit with an express finding that
the plaintiff was entitled to redeem the mortgage. 4. Be
it noted here that the Madhya Bharat Zamindari Abolition Act
has been engrafted into the statute book for acquisition of
rights of proprietors in villages, Muhals, Chaks or blocks
settled on Zamindari system so as to subserve the public
purposes of the improvement of agriculture and financial
condition of agriculturists and came into force on 25th
June, 1951. 5. Section 2c, defined "Khudkasht land"
meaning thereby land cultivated by Zamindar himself or
through employees or hired labourers and includes ‘sir’
land. Section 3 of the Act provides for vesting of the
proprietary rights in the State and Section 4 records the
consequence of vesting of an estate in the State. Section 4
(27) provides that notwithstanding anything contained in
sub-section (1) the proprietor shall continue to remain in
possession of his Khudkasht land so recorded in the annual
village papers before the date of vesting. 6. It,
therefore, appears that that there is a categorical
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expression of statutory intent that the land which has not
been recorded as Khudkasht land is liable to vest in the
State. Conversly thus, the intent of the legislature is
loud enough to indicate that while Zamindari or intermediary
interest was being abolished, due care has been taken to
protect the Khudkasht land and allowed the subsisting
interest of the Zamindar to continue so as to enable the
Zamindar either to cultivate himself or through employees or
hired labourers and in that event the same would be out of
contemplation of the statute. The statute has put an
embargo even on the mortgagee of Khudkasht land. As a
matter of fact the Act read as a whole suggests that the
mortgagee would not be able to upgrade his entitlement or
status and the possession of Khudkasht land stands
transferred from him to the Zamindar by operation of law.
Section 4 and various sub-sections thereunder read with
Sections 5 and 6 categorically depict the same and it is on
this aspect of the matter we lend our concurrence to the
observation of the High Court to the following effect:- "A
mortgagee’s interest in the mortgaged Khudkasht land is not
allowed to blossom into larger interest of ownership or of
indefeasible right to possess the land in virtue of the
advent of the new land tenure system.".
7. The definition section as noticed above and in
particular the definition of the word "Proprietor" means a
person as respects a village, muhal or land settled on
Zamindari system owning whether in trust or for his own
benefit, such village, muhal or land. The definition of
"Khudkasht" under Section 2c referring therein land
cultivated by the Zamindar himself or through employees or
hired labourers, read with section 4(2), makes it abundantly
clear that Section 2 (a) cannot but mean that it is the
Zamindar or Proprietor only who has been allowed by the
statute to obtain the benefit. The mortgagee cannot be
allowed to claim a better title by reason of the provisions
as noted above than he has prior to the enactment of the
statute. 8. As regards the Yakub’s case the High Court in
paragraph 13 of the Judgment observed:- "True, for the view
taken in Yakub’s case (supra) reliance is placed mainly by
the learned single judge, on a decision rendered by another
learned single judge of this court in Bhagwant v.
Ramchandra (1961 JLJ 286). In that decision also, a
simplistic view of the definition was taken and relying on
Section 2(a)(a) read with sub-clause (2) of section 2 of
Qanoon Mal, Gwalior State, the rights of Zamindar/proprietor
were subrogated to that of his mortgagee and the latter was
even held entitled under Section 38 to claim to be a "Pakka
tenant" and thereby to keep alive his interest in the
mortgaged "Khudkasht" land in direct opposition to the
object and purpose of Section 4(1)(f). Reference was also
made in Yakub’s’ case (supra) to a Bench decision of this
Court in Khumansingh v. Dhansingh (1971 RN 351), but, in
our opinion, reliance thereon was misconceived. In that
case, it was held that in "Z.A. Act" emphasis was on actual
cultivation of the "Khudkasht" lands and not on entry ("so
recorded") in the revenue record, while construing Sections
2(c) and 4(2) of the said Act. The scope and object of
Section 4(1)(f) did not come up for consideration of their
Lordships in that case. Although reference was also made in
Yakub’s case to another Bench decision of this Court,
Chaturbhuj v. Mohanlal (1961 RN 182), that was also not a
case of a mortgagee versus Zamindar and in that case,
construction of the provisions merely of Sections 4(2) and
2(c) has to be read."
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9. This aspect of the matter, however, has been dealt
with by this Court in the case of Meharban Singh v. Naresh
Singh (AIR 1971 SC 77) wherein this Court in paragraph 8
observed:- "8. A plain reading of these sections would show
that all rights, title and interest of the proprietors in
the area notified were to cease and were instead to vest in
the State free from all encumbrances with effect from all
encumbrances with effect from the date of notification and
after such vesting in the State every mortgage with
possession existing on the property so vested or part
thereof on the date immediately preceding the date of
vesting, to the extent of the amount secured on such
property or part, thereof, is to be deemed, without
prejudice to the right of the State under Section 3 to have
been substituted by a simple mortgage. The proprietor,
however, notwithstanding other consequences of the vesting
in a State, is entitled to continue to remain in possession
of his khudkasht land which is so recorded in the annual
village papers before the date of vesting. Now it was
clearly open to the plaintiffs to show that the land in
question was khudkasht and, therefore, in accordance with
Section 4, they were entitled to remain in possession
thereof."
10. Mr. S.K. Jain, appearing in support of the
appeal however contended that subsequent to the decision in
Meharban Singh’s case this Court in the case of Budha v.
Amilal (1990 (4) JT, 804) expressed a different view and by
reason of divergence of views this matter ought to be
referred to a larger Bench for resolution and enunciation of
the law on the subject. For convenience sake the
observation of this Court in Budha’s case (supra) is set out
herein below:-
"14. Even if it is assumed that the lands in dispute
have to be treated as Khudkasht lands of the appellant by
virtue of clause (i) of the inclusive part of the definition
of ‘Khudkasht’ contained in Section 5(23) of the Rajasthan
Tenancy Act, the appellant cannot succeed in his claim that
he has acquired Khatedari rights in respect of those lands
on the basis of the provisions contained in sub- section (4)
of Section 5 and sub-section (1) of section 29 of the Act.
Sub-section (4) of Section 5 provides that notwithstanding
anything contained in sub-section (2) of Section 5 the
Zamindar or Biswedar shall subject to the provisions of
Section 29, continue to retain the possession of his
Khudkasht, recorded as such in the annual registers before
the date of vesting. The words "continue to retain the
possession", imply that lands which are recorded as
Khudkasht in the annual register before the date of vesting
should also be in possession of the Zamindar or Biswedar on
the date of vesting and if he is in possession of such lands
he can continue to retain the possession of the same subject
to the provisions of of Section 29. Sub-section (1) of
Section 29 prescribes 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
subject to all the liabilities imposed on a Khatedar tenant
by or under the Rajasthan Tenancy Act. Under this provision
Khatedri rights have been conferred on a Zamindar or
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Biswedar as from the date of the vesting of the estate in
respect of Khudkasht lands in the occupation of such
Zamindar or Biswedar on such date. The words "in his
occupation on such date" postulates that the lands, though
Khudkasht, should be in the occupation of the Zamindar or
Biswedar on the date of vesting of the estate. It would
thus appear that in view of sub-section (4) of Section 5 and
sub-section (1) of Section 29 of the Act the mere fact of
recording of the land as Khudkasht in the settlement records
on the date of vesting would not be enough for a Zamindar or
Biswedar to acquire Khatedari rights over the said lands and
it is further required that the Zamindar or Biswedar should
be in possession/occupation of the said lands on the date of
vesting of the estate under the Act. The
possession/occupation envisaged by sub- section (4) of
Section 5 and sub-section (1) of Section 29 of the Act is
actual possession/occupation and the possession of a
mortgagor through the mortgagee cannot be held to be
possession or occupation as postulated in sub-section (4) of
Section 5 and sub-section (1) of Section 29 of the Act.
15. In the present 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 vesting of the estate of the
appellant under the Act. The appellant cannot, therefore,
claim Khatedari rights in respect of the lands in dispute."
11. Incidentally, be it noted that the decision in
Budha’s case (supra) was on interpretation of Rajasthan
Zamindari and Biswedari Abolition Act, 1959 whereas Madhya
Bharat Zamindari Abolition Act, 1951 came up for
consideration in Meharbansingh’s case. The later decision
of this Court in Budha’s case (supra) however has not
noticed the judgment of this Court in Meharban Singh’s case
(supra) and by reason of the observation of this Court in
paragraph 15 of the judgment in Budha’s case, it can not but
be said that the decision in the later judgment was on the
peculiar facts of the case. It is further to be noted that
Meharban Singh’s case came to be decided as early as 1970
and has been followed for last three decades in the State of
Madhya Pradesh and innumerable number of matters have been
dealt with on the basis thereof and in the event, a
different view is expressed today, so far as this specific
legislation is concerned, it would unsettle the situation in
the State of Madhya Pradesh and it is on this score also
that reliance on the doctrine of ‘stare decisis’ may be
apposite. While it is true that the doctrine has no
statutory sanction and the same is based on a Rule of
convenience and expediency and as also on ‘Public Policy’
but in our view, the doctrine should and ought always to be
strictly adhered to by the courts of law to sub-serve the
ends of justice. 12. This Court in Muktul v. Mst.
Manbhari & Ors. (1959 SCR 1099), explained the scope of the
doctrine of stare decisis with reference to Halsbury’s Laws
of England and Corpus Juris Secundum in the manner
following:- "The principles of ‘Stare Decisis’ is thus
stated in Halsbury’s Laws of England: "Apart from any
question as to the Courts being of co-ordinate jurisdiction,
a decision which has been followed for a long period of
time, and has been acted upon by persons in the formation of
contracts or in the disposition of their property, or in the
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general conduct of affairs, or in legal procedure or in
other ways, will generally be followed by courts of higher
authority than the court establishing the rule, even though
the court before whom the matter arises afterwards might not
have given the same decision had the question come before it
originally. But the supreme appellate Court will not shrink
from overruling a decision, or series of decisions, which
establish a doctrine plainly outside the statute and outside
the common law, when no title and no contract will be
shaken, no persons can complain, and no general course of
dealing be altered by the remedy of a mistake".
The same doctrine is thus explained in Corpus Juris
Secundum:- "Under the stare decisis rule, a principle of law
which has become settled by a series of decisions generally
is binding on the courts and should be followed in similar
cases. This rule is based on expediency and public policy,
and, although generally it should be strictly adhered to by
the courts, it is not universally applicable."
13. Be it noted however that Corpus Juris Secundum,
adds a rider that "previous decisions should not be followed
to the extent that grievous wrong may result; and,
accordingly, the courts ordinarily will not adhere to a rule
or principle established by previous decisions which they
are convinced is erroneous. The rule of stare decisis is
not so imperative or inflexible as to preclude a departure
therefrom in any case, but its application must be
determined in each case by the discretion of the court, and
previous decisions should not be followed to the extent that
error may be perpetuated and grievous wrong may result." 14.
The statement though deserves serious consideration in the
event of a definite finding as to the perpetration of a
grave wrong but that by itself does not denude the time
tested doctrine of Stare Decisis its efficacy. Taking
recourse to the doctrine would be an imperative necessity to
avoid uncertainty and confusion. The basic feature of law
is its certainty and in the event of there being uncertainty
as regards the state of law - the society would be in utter
confusion resultant effect of which would bring about a
situation of chaos - a situation which ought always to be
avoided.
15. In Raj Narain Pandey & Ors. v. Sant Prasad
Tewari & Ors. (1973 (2) SCR 835 , H.R. Khanna, J. (as he
then was) observed at page 840 of the Report as follows:-
"In the matter of the interpretation of a local statute, the
view taken by the High Court over a number of years should
normally be adhered to and not disturbed. A different view
would not only introduce and element of uncertainty and
confusion, it would also have the effect of unsettling
transactions which might have been entered into on the faith
of those decisions. The doctrine of stare decisis can be
aptly invoked in such a situation. As observed by Lord
Evershed M.R. in the case of Brownsea Haven Properties v.
Poole Corpn., there is well established authority for the
view that a decision of long standing on the basis of which
many persons will in the course of time have arranged their
affairs should not lightly be disturbed by a superior court
not strictly bound itself by the decision."
16. Recently in Bishamber Dass Kohli v. Satya Bhalla
(1993 (1) SCC 566) J.S. Verma, J. (as he then was)
observed in respect of a provision of the East Punjab Urban
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Rent Restriction Act, 1949 as follows:-
"This is how this provision appears to have been
understood at least ever since then and the people in the
State have arranged their affairs on that basis. Apart from
the fact that this view commends to us as the correct view,
the desirability of continuing the settled view is also a
reason in its favour."
17. More recently in Gangeshwar Limited v. State of
U.P. & Ors. (1995 (6) SCC 84 this Court observed :- "We
would have appreciated this attractive argument had there
not been two decisions of the Allahabad High Court in the
way, which are to the contrary. These are - State of U.P.
v. Har Bilas Goel and Jai Ram Singh v. State of U.P. The
understanding of section 6 of the Ceiling Act by the High
Court reflected in these two decisions, when none has been
placed before us to the contrary, would require upholding on
the principle of stare decisis, for if we go to reinterpret
the provision contrarily, it would upset the settled
position in the State insofar as this area of law is
concerned."
18. Paripoornan, J. in a similar vein in Kattite
Valappil Pathumma & Ors. v. Taluk Land Board & Ors. 1997
(4) SCC 114 observed:- "We are further of the view, that
even if another view is possible, we are not inclined to
take a different view at this distance of time.
Interpretation of the law is not a mere mental exercise.
Things which have been adjudged long ago should be allowed
to rest in peace. A decision rendered long ago can be
overruled only if this Court comes to the conclusion that it
is manifestly wrong or unfair and not merely on the ground
that another interpretation is possible and the court may
arrive at a different conclusion. We should remember that
the law laid down by the High Court in the above decision
has not been doubted so far. The Act in question is a State
enactment. These are weighty considerations to hold that
even if a different view is possible, if it will have the
effect of upsetting or reopening past and closed
transactions or unsettling titles all over the State, this
Court should be loathe to take a different view. On this
ground as well, we are not inclined to interfere with the
judgment under appeal."
19. In this context reference may also be made to two
English decisions: (a) In Admiralty Comrs. V. Valverda
(Owners) (1938 Appeal Cases 173 at 194) wherein the House of
Lords observed that even long-established conveyancing
practice, although not as authoritative as a judicial
decision, will cause the House of Lords to hesitate before
declaring it wrong and (b) In Button v. Director of Public
Prosecution, Swain v. Director of Public Prosecutions (1966
AC 591) House of Lords observed:- "In Corpus Juris Secundum,
a contemporary statement of American Law the stare decisis
rule has been stated to be a principle of law which has
become settled by a series of decisions generally is binding
on the courts and should be followed in similar cases. It
has been stated that this rule is based on expediency and
public policy and should be strictly adhered to by the
courts. Under this rule courts are bound to follow the
common law as it has been judicially declared in previously
adjudicated cases and rules of substantive law should be
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reasonably interpreted and administered. This rule has to
preserve the harmony and stability of the law and to make as
steadfast as possible judicially declared principles
affecting the rights of property, it being indispensable to
the due administration of justice, especially by a court of
last resort, that a question once deliberately examined and
decided should be considered as settled and closed to
further argument. It is a salutary rule, entitled to great
weight and ordinarily should be strictly adhered to by the
courts. The courts are slow to interfere with the principle
announced by the decision, and it may be upheld even though
they would decide otherwise were the question a new one, or
equitable considerations might suggest a different result
and although it has been erroneously applied in a particular
case. The rule represents an element of continuity in law
and is rooted in the psychologic need to satisfy reasonable
expectations, but it is a principle of policy and not a
mechanical formula of adherence to the latest decision
however recent and questionable when such adherence involves
collision with a prior doctrine more embracing in its scope,
intrinsically sounder and verified by experience.
20. The law as settled by this court in
Meharbansingh’s case (supra) has stood the test of time and
if at this juncture a contra opinion is expressed, it will
open up a series of conflicts and consequent litigation and
thereby disturbing settled position of law in the State of
Madhya Pradesh. This Court’s decision on the Rajasthan
legislation has been decided in the peculiar facts of the
matter in issue therein. There is neither any co-relation
nor any identity of subject, between the two enactments and
as a matter of fact the legislations speak differently. As
such, we are not able to record our concurrence with the
submission of Mr. Jain that the law needs to be enunciated
more fully by reason of a different view as expressed by
this Court in Budha’s case. Budha’s case (supra) as noticed
above, has been decided on its own merits and has no
applicability in the contextual facts. The doctrine of
stare decisis therefore, prompt us to reject the contention
of Shri Jain. In that view of the matter and since the High
Court has proceeded on the basis of Meharbansingh’s case ,
we do feel it convenient to record that the High Court has
decided the issue in its proper perspective and we see no
reason to express any different view at this point of time.
21. The appeal, therefore, fails and is dismissed with no
order as to costs.