JUDGMENT Satish Chandra, J.
1. It appears that a zamindari share including Sir and khudkasht plots was usufrucruarily mortgaged. The mortgagee continued in possession even after the date of vesting. Subsequently the mortgagor, who had become a bhumidhar, filed a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act for the ejectment of the mortgagee from the bhumidhari plots, which, prior to the date of vesting, were sir and khudkasht. The defence, inter alia, was that the suit was barred by time, because the defendants were in possession after the date of vesting, as trespassers, and the period of limitation commenced to run from the date of vesting. The plaintiff's case was that the retention of possession by the mortgagee was, after the date of vesting, permissive. The time will begin to run from the date of demand for possession, if any: otherwise from the date of the institution of the suit. The suit was within time.
2. The suit was under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act, which reads:--
"209. Ejectment of persons occupying land without title:--
(1) A person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and-
(a) where the land forms part of the holding of a bhumidhar, sirdar or asami without the consent of such bhumidhar, sirdar or asami,
(b) Where the land does not form part of the holding of a bhumidhar, sirdar or asami without the consent of the Gaon Sabha.
shall be liable to ejectment on the suit, in cases referred to in Clause (a) above, of the bhumidhar, sirdar or asami concerned, and in cases referred to in Clause (b) above, of the Gaon Sabha and shall also be liable to pay damages.
(2) To eveiy suit relating to a land re-to in Clause (a) of Sub-section (1) the State Government shall be impleaded as a necessary party".
3. Clause (a) of Sub-section (1) of this section authorised a bhumidhar, sirdar or asami, while Clause (b) entitled the Gaon Sabha, to sue for the ejectment of a person taking or retaining possession otherwise than in accordance with the provisions of the law for the time being in force, and without their consent.
4. This provision lays down two conditions, first, that the person takes or retains possession to contravention of the law, and, in the next place, without the consent of the plaintiff, be he a bhumidhar, sirdar or asami or the Gaon Sabha.
5. In Radhey Shyam v. Rama 1969 All LJ 1095 Gangeshwar Prasad, J., speaking for the Bench, held that in view of Section 14 (1) of the Act the mortgagee's right to remain in possession after the date of vesting extinguished. His retaining possession thereafter was otherwise than, in accordance with law. So the first condition was satisfied. The same view was taken by a Division Bench in Ram Chet v. State of U. P, Civil Misc. Writ No. 2733 of 1963, D/- 29-7-1968 (All), None of the learned counsel appearing for the rival parties even whispered that the possession of the erstwhile mortgagee of Sir or khukasht land was, after the date of vesting, in accordance with law. It can, therefore, be taken as beyond controversy that the possession of the erstwhile mortgagee after the date of vesting was unlawful, that is, otherwise than in accordance with the provisions of law for the time being in force, within meaning of the Section 209.
6. A difference of opinion arose on the construction of the phrase 'without the consent' occurring in Section 209. In Radhey Shyam's case 1969 All LJ 1095 (supra) it was held that the possession of the mortgagee of sir or khudkasht land being permissive in its origin, its continuance even after the date of vesting will be permissive till the demand for possession is made by the bhumidhar. If the mortgagee continues to remain in peaceful possession, his possession is not necessarily without the consent of the bhumidhar. In C. M. W. No. 2733 of 1963, D/ 29-7-1968 (All) (supra) B. Dayal and Lokur, JJ. took the view that the possession of the mortgagee after the date of vesting would be, per se, adverse. In Badri v. Ram Pyare I had taken a similar view, and held that the possession of mortgagee in the context of Section 14 of the U. P. Zamindari Abolition and Land Reforms Act would be without the consent of the mortgagor. The mortgagee could not be a Hcencee. His possession after the date of vesting would per se be adverse to the bhumidhar, sirdar or asami or to the Gaon Sabha.
7. It is thus apparent that in both sets of decisions the concept of consent was treated as equivalent to permission in the sense of a licence. In one case it was held that the continued possession would be deemed to be permissive or as a Hcencee, while in the others it was ruled that it will not be so, but will be adverse. In order to resolve this conflict, the following questions of law have been referred to a Full Bench:--
"(1) Whether the possession of the mortgagee whose rights have extinguished under Section 14 (1) of the U. P. Zamindari Abolition and Land Reforms Act is on or after the date of vesting per se adverse or permissive?
(2) Does the period of limitation for a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act commence to run from the dale of vesting or on the date of demand of possession?"
or unauthorised occupants of agricultural land. They would be sued for ejectment or damages only in the Civil Courts. Section 127 of the Oudh Rent Act, 1886, was titled as "Rent payable for land occupied without consent of the landlord." It provided that an unauthorised occupant could, at the option of the landlord, be treated as the tenant and thereupon he became liable to pay rent for the land.
10. Dealing with this provision, the Board of Revenue in Indarkumar v. Ram Nath 34 S. D. 1891 held that the object of Section 127 is to enable a landlord, if he so chooses, to treat as tenants and not as trespassers to be proceeded against in the civil Courts for mesne profits or damages for trespass, persons occupying his land without his consent. The plaintiff landlord in that case was found to have collected rent from the defendant during the three years preceding the suit. It was held that under Section 127 the landlord's consent may be express or implied and that the collection of rent constituted implied consent.
11. In Lala Singh v. Hazari Singh 1 OLJ 574 = (AIR 1914 Oudh 417) it was held that an occupation which began by consent cannot be included under Section 127 merely by the spasmodic withdrawal of that consent. It is evident that consent is not leave or licence which may be revoked at will.
12. In the North-Western Provinces Tenancy Act, 1901, a similar provision was added by Section 34. It provided:--
"34. Rent payable in absence of agreement. A person occupying land without the consent of the landholder, shall be liable for the rent of the land at the rate payable in the previous year, or if rent was not payable in the previous year, at such rate as the court may determine to be fair and equitable, but he shall not be deemed to hold the land within the meaning of Section 11 until he begins to pay rent therefor."
13. Section 34 came up for consideration in Sat Narain Prasad v. Ram Kurnar 8 S. D. of 1910. It was held that:--
'Under Section 34, as has frequently been ruled in connection with Section 127 of the Oudh Rent Act, a person who has cultivated land without the consent of the landholder, becomes a tenant when the landholder chooses to acknowledge him to be so, either by suing for rent or by suing for ejectment. It is at the option of the landlord to treat such a person either as a trespasser and sue him in the Civil Courts, or as a person liable to pay rent and sue him in the Revenue Courts, but until the landlord has exercised this option, such a person cannot be considered to be a tenant."
14. In Mata Baksh Singh v. Murli Dhar Dube, 8 S. D. of 1912 the landlord plaintiff sued the defendant for declaration of rent for a holding which was originally given to him as rent free grove, but which, because of the disappearance of a large number of trees, was no longer a grove and which the defendant had started cultivating. It was held that Section 34 applied to land formerly grove but which has been brought under cultivation. The grove-tenure ended when the grove-holder used the land for purposes of cultivation without the consent of the landholder. Rent was, therefore, payable under Section 34.
15. This decision shows that when a particular tenure comes to an end, the holding over is without consent, until the landholder chooses to treat the person as a tenant by requiring him to pay rent.
16. In Murlidhar Singh v. Gyasi Ram, 15 S. D. of 1919 the findings were that the defendant had held the plots for over forty years without payment of rent, but with the knowledge of the landholder. Harrison J. M. held-
"A recent examination of a large number of decisions bearing on the point has shown that in such circumstances it has been consistently ruled, with no important exception, that knowledge for any period, however long, cannot be held to imply consent in the case of ordinary cultivated land. From these decisions I am not prepared to differ. In this particular case also occupation even for forty years cannot be held to raise a legal presumption of consent."
Ferad S. M. agreed and held-
"It is quite possible that the zamindar may have become aware of the squatting, but this does not connote that he consented to it. I agree with the view expressed by the Board in Chaudhari Ghanshiam Singh v. Mohan Singh (2 R. D. 228) that the presumption is that the occupier holds without consent unless he can produce strong rebutting evidence to prove consent."
17. The presumption in law is that the possession of a trespasser or of a person whose tenure has come to an end, is without consent. This is from the date that the landholder is proved to have exercised his option to treat him as a tenant, that the occupier's possession is with consent. Till then he is mere squatter or trespasser.
18. The decision in Murlidhar Singh's case, 15 S. D. of 1919 was affirmed in Gulzari v. Mohammad Ali Husain Khan 1 S. D. of 1924. In that case the settlement records of 1902 showed that the defendant held the plots for four years without rent. The question was whether such an entry amounts to the zamindar's consent within meaning of Section 34 of the Tenancy Act, 1901. It was held-
"Section 57 of the Land Revenue Act raises a presumption that the settlement entry is correct but all that it amounts to in this case is that a certain man is holding certain land and that no rent has been agread upon. It does not follow that the zemindar has consented to his holding the land.
Moreover proceedings at attestation have not beep held in other matters to mean that the zamindar is bound by the entries made in the settlement record, nor if they are adverse to the zamindar has it been held that the latter is bound to take action to correct them or will be considered to have given his consent to them...... On full consideration I cannot think that an entry of a plot as unrented in the settlement papers, even if attestation takes place, is sufficient to constitute an admission of consent by the zamindar ........ It has been laid down in the Selected Decision mentioned that from the mere fact of knowledge no consent can be presumed and the settlement papers can do no more than show that the zamindar had knowledge of the holding. That decision provides that though the zamindar may have had this knowledge for many years yet his consent cannot be presumed from his taking no action on that knowledge."
19. It will thus be seen that phrase "without the consent of the landholder" was treated as having a special significance. Mere knowledge that a trespasser was occupying land coupted with inaction was not sufficient to raise the presumption of consent. This point of view was put more directly by a Division Bench of this Court in Jagardeo Singh v. Ali Hammad, ILR 40 All 300 = (AIR 1918 All 177 (2). Walash, J. held-
"The words in the section are not "without permission'. I am satisfied that the words 'a person occupying land without the consent of the landlord, mean one who enters into occupation without express consent or without any previous arrangement with him."
20. In Balli v. Naubat Singh, (1912) 9 All LJ 771 RDM, J. held that a person who, under Section 34 of the Tenancy Act, is occupying land without the consent of the landholder, if he is liable for the rent of the land, is liable to the consequences which follow his non-payment of rent. He is liable to ejectment as a non-occupancy tenant.
21. The Agra Tenancy Act, 1926, made the scheme more clear. Section 44 provided for ejectment of persons occupying land in contravention of the Act and without consent of the landholder and to pay damages. Section 45 made persons, admitted to occupy or permitted to retain possession of land with the intention that a contract of tenancy should thereby be effected but without any rent being fixed, liable to fixation of rent. Such persons became tenants and were liable to ejectment for default in paying rent under Section 81 of the Act. Section 45 clarifies the significance of "without consent" mentioned in Section 44. If a landholder permits a person to take or retain possession with the intention that a contract of tenancy should thereby be effected, such person is in possession with the consent of the landholder. He can defend a suit for ejectment trader Section 44 by pleading that he is liable for fixation, of rent and ejectment for non-payment of rent under Section 81, But he is in possession with consent and so he cannot be ejected or made liable to pay damages under Section 44.
22. Section 44 applies to those who are liable to pay damages. Those to whom Section 45 does not apply are liable for damages within Section 44. The phrase 'without consent of the landholder' in Section 44 hence will cover even, those who may take or retain possession with express or implied permission, but without any intention that a contract of tenancy should be effected. Their possession will be without consent.
23. This view is in consonance with the interpretation, of the phrase "without the consent of the landholder" occurring in the earlier Tenancy Acts that the consent is the exercise of the option to treat as a tenant. Mere knowledge of squatting or inaction was not consent.
24. Entry No. 2 of Group B of the IV Schedule of the Agra Tenancy Act, 1926, provided a period of limitation of 12 yeajrs tor a suit for ejectment under Section 44. Time began to run "when the landholder first knew of the unauthorized occupation". The landholder was given 12 years' time to exercise his option to treat the occupier as a tenant. The occupier was also at liberty to enter into an arrangement with his landholder so as to be covered by Section 45 within this period. Further demand for possession was no part of the cause of action. The decisions holding that knowledge and inaction, did not imply consent were given statutory recognition, K knowledge and inaction were equivalent to consent, then the cause of action for a suit of ejectment under Section 44 could never arise, because since the date of knowledge the defendant's possession will be with consent. Clearly knowledge is not consent. The consent of the landholder has to Be a positive act of treating the trespasser as tenant. Even if knowledge and inaction may imply leave or licence, it would not be "consent" within meaning of this provision.
25. The U. P. Tenancy Act, 1939, carried the same scheme. Section 45 was re-enacted in the same terms, as Section 94. Section 81 became section. 1969 (sic). Section 44 was enacted as Sec. 180. Here also "without consent of the landholder" was continued. Sub-section (2) provided that on expiry of the period of limitation foi the suit for ejectment under Section 180 (1), the occupier will become a hereditary tenant.
26. Entry No, 18 of Group B of the IV Schedule of this Act provided a period of limitation of six years or 12 yeais in certain specified cases and in alt other cases two yeais. The period of limitation was to begin in the first two categories from the time when die landholder knew of the unauthorised occupation and in the third from the 1st July following the date of the unauthorised occupation. In those cases where the period of limitation was two years even the knowledge of the landholder was made redundant. The cause of action arose from the date of the unauthorised occupation. Demand for possession was irrelevant to the accrual of the cause of ad ion.
27. This provision came up for consideration in Sita Rain v. Abhey Ram. 1944 R. D. 118. There the occupancy tenancy of one Shyam Lal was mortgaged to one Shri by a mortgage deed dated April 19, 1922. The Lambardar Tikain Singh gave his consent to the mortgage of the holding. On September 19, 1941, Shyam Lal, the mortgagor-tea-ant, surrendered his tenancy rights in favour of Sita Ram, the then Lambardar. Sita Ram filed a suit for ejectment of the mortgagee under Section 180 of the U. P. Tenancy Act The suit was dismissed by the trial Court on the finding that as the then Lambardar gave his consent to the mortgage, the present Lambardar was estopped from suing for ejectment of his mortgagee. This decree was upheld in appeal. The matter then came before the Board of Revenue in second appeal. The Board held that the question for consideration was whether the consent given by the then Lambardar in 1922 could, in any way, prevent the present Lambardar from suit for the ejectment of the mortgagee, when the rights of the mortgagor had definietly come to an end. It was urged that the plaintiff had derived his interest in the proprietary title from Tikarn 'Singh, who was the Lambardar and who gave his consent to Shyam Lal ex-
ecuting the mortgage deed in 1922, and so the plaintiff was bound by the action of Tikam Singh and estoppel could operate against him under Section 115, Evidence Act, to the same extent as it would have operated against Tikam Singh. Sathe, S. M. (Boss. A, M. concurring) observed-
"But in my opinion the belief which was created by the consent given by Tikam Singh can only amount to a belief in the minds of the mortgagor and the mortgagee that they woidd not be liable to ejectment on the ground of the illegal transfer effected by that mortgage. There is no evidence on record to show that the belief then created went further and held out a hope to the mortgagee that even if the rights of the mortgagor should ever extinguish owing to any circumstance the zamindar would not eject the mortgagee nevertheless. In my opinion therefore the principle of estoppel lias no application whatsoever to the present case."
28. The learned Member then went tin to hold-
"There is another possible view of the case, viz., that the then Lambardar by giving his consent to the mortgage may be deemed to have contracted himself out of the right which the then law conferred on him of having the mortgage declared void. But even so the only assurance which the Lambardar can be said to have given to the parties to the contract of mortgage was to the effect that those parties would not be liable to ejectment for the illegal trans fer. There is nothing on the record to show that the Lambardar's assurance went any further and held out any hope to the mortgagee that even if the mortgagor's right ever came to an end the mortgagee would continue to be in possession. Under the circumstances, I think that the action of the then Lambardar in giving his consent to the mortgage executed by Shyam Lal in favour of Shri cannot in any way protect the mortgagee from ejectment now when the rights of their mortgagor have come to an end by surrender."
29. In substance, the presumption was held to be that the consent of the land-lord to the mortgagee remaining in possession lasted only so long as the contract of the mortgagor to which consent was given. When the mortgage came to an end, the consent ended with it. Thereafter the possession of the mortgagee was without consent.
30. The Zamindari Abolition and Land Reforms Act abolished intermediaries. It extinguished the various kinds of tenancies recognised by the earlier Acts. It conferred fresh tenure-holder's rights upon tenants. It created three classes of tenure-holders: bhumidhars, Sirdars and asamis. Section 156 prohibited a bhumidhar, sirdar or asami to let out his holding except in cases provided for in Section 157 or to a recognised educational institution. Section 157 permitted a disabled bhumidhar or sirdar or asami holding land in lieu of maintenance allowance under Section 11 to let out the land. The person to whom the land was so let out by a bhumidhar or sirdar became an asami under Section 133 (b). Section 215 of the Act provided for fixation of rent where any person has been admitted to the occupation, of any land or permitted to retain possession of any land as an asami thereof without fixation of rent. This was equivalent to Section 45 of 1901 Tenancy Act and Section 94 of the 1939 Tenancy Act. An asami could be ejected under Section 202 (h) for non-payment of rent. Section 209 of the Zamindari Abolition and Land Reforms Act was equivalent to Section 180 (1), while Section 210 was equivalent to Section 180 (2) of the U. P. Tenancy Act, 1939, whereunder a person in occupation became a sirdar. Under Section 209 (1) one of the conditions is that a person is taking or retaining possession without the consent of such bhumidhar, Sirdar or asami or the Caon Sabha.
31. The significance of the phrase "without the consent" occurring in Sec. 209 is in accord with its legislative history. The bhumidhar, sirdar or asami should have exercised his option. There should be an arrangement between the bhumidhar, sirdar or asami and the person in possession before such person can claim to be in possession with his consent.
32. Serial No. 30 of the Appendix to the Zamindari Abolition and Land Reforms Rules provides six year's period of limitation for a suit under Section 209. Time begins to run from the 1st of July following the date of occupation. Here, again, the event of knowledge which was kept in the Agra Tenancy Act and in certain cases under the U. P. Tenancy Act, 1939 as furnishing the cause of action was abandoned. Demand for possession was not material.
33. One of the conditions of these various provisions for ejectment of occupiers of land is "without consent". Normally if the plaintiff says that the defendant is in possession without his consent, that would be sufficient, because law cannot insist upon proving the negative. This condition, however, provides a defence. The defendant can succeed in a suit for ejectment if he proves that he was in possession with the consent of the plaintiff. The question of consent is independent of the cause of action for a suit under Section 209, which is based upon taking or retaining unauthorised possession.
34. As already seen, mere taking of possession with the knowledge of the plain-tiff will not constitute consent. Similarly, continuance of possession after the right to remain in possession has come to an end either by act of parties or by operation of law will not be with consent simply because the plaintiff has knowledge of the continuance of possession. In other words, when the right or title to remain in possession has come to ap end or extinguished, the presumption would be that the retention of possession thereafter is without consent.
35. Under Section 4 of the U. P. Zamnindari Abolition and Land Reforms Act all estates vest in the State from the beginning of the date of vesting free from all encumbrances. Under Section 6 (g) (i) every mortgage with possession existing on an estate is substituted by a simple mortgage, but without prejudice to the rights, of the State Government under Section 4. Thus the mortgage with possession extinguishes and a simple mortgage comes into existence in its place, but still the mortgaged estate vests in the State free from all encumbrances under Section 4. It is evident that the mortgaged land became totally free from the encumbrances. On the date of vesting it could not be said that the usufructuary mortgagee was in possession with the consent of the State Government because the State Government had neither privity of estate nor privity of contract with the mortgagee. The mortgagee was, prior to the date of vesting, in possession with the consent of the mortgagor, which was evidenced by the contract of mortgage. That consent will not enure to the mortgagee as against the State Government. He will be in possesr sion without the consent of the State Government.
36. Section 18 of the Zamindari Abolition and Land Reforms Act conferred rights of a bhumidhar on intermediaries in respect of their sir or khudkasht land. In Sheo Amber Singh v. Allahabad Bank Ltd., AIR 1961 SC 1790 it was declared that the proprietary rights in sir and khudkasht land which was mortgaged stood extinguished with effect from the date of vesting. Section 18 of the Act conferred fresh sepcial rights in respect of sir and khudkasht land. The mortgagee of such laud canpot enforce the mortgage against bhumidhari rights created by the Act. Bhumidhari rights could not be followed as substituted security.
37. A Bhumidhar is a new entity oa whom the Act conferred fresh rights, independent of his previous encumbrance. In respect of the land of which the becomes the bhumidhar there is no relationship of mortgagor and mortgagee between him and the erstwhile mortgagee,
38. As already seen, the mortgagee's continuance in possession could not be with the consent of the State Government. Evidently, it could not possibly be with the consent of a person to whom land, which has vested in the State Government free of encumbrances, is given and in respect of which fresh rights of bhumidhar as conferred. The erstwhile mortgagee cannot hence be deemed to be in possession with the consent of the bhumidliar merely because he has continued to remain in possession peacefully but without any fresh arrangement with the bhumidhar.
39. Section 6 (g) (1) converts a usufructuary mortgage into a simple mortgage. Sub-clause (ii) of Section 6 (g) provides that notwithstanding anything contained in the mortgage deed or any other agreement, the amount declared due on a simple mortgage substituted under Sub-clause (i) shall carry such rate of interest and from such date as may be prescribed. Under Clause (h) of Section 6 a claim or liability which is charged on or is secured by a mortgage of an estate is enforceable only as provided in Section 73 of the Transfer of Property Act, 1882, and not against the interest of the mortgagor in the estate. Under Section 73 the mortgagee has a right to recover his claim only from the compensation payable for the acquired property. It is evident that the only security for the simple mortgage is the compensation. Thus the relationship of mortgagor and mortgagee does not subsist qua bhumidhari land. There is neither privity of contract nor privity of estate between the bhumidhar and the erstwhile mortgagee in respect of the bhumidhari plots. In this situation it could not possibly be said that the continuance of the mortgagee in possession of the bhumi-dhari land will be presumed to be with the consent of the bhumidhar. The presumption will be that he was in possession without his consent and the burden will be upon the person in possession to prove that the bhumidhar had accorded his consent. This event could happen only after the person had become bhumidhar because he could not, as bhumidhar, give consent till he had become a bhumidhar. The defendant will have to prove some transaction, or arrangement with the bhumidhar after the date of vesting.
40. In 1969 All LJ 1095 (supra) Gangeshwar Prasad, J. observed-
''It will be noticed that the right that ceased by operation of this provision was the right of the mortgagee to hold or possess the mortgaged land as such, i. e., as mortgagee, but neither the mortgage debt stood discharged nor did the mortgage itself come to an end. The debt secured by the mortgage still remained payable, the mortgaged property continued to be a security for the debt and the relationship not only of debtor and creditor but also of mortgagor and mortgagee was left subsisting between the parties to the mortgage ....."
41. Later, in paragraph 11 his Lordship observed that the mortgage debt remained realisable from the mortgaged property even after the enforcement of the Act.
42. With respect, as shown above, neither the mortgaged property continued to be the security for the debt, nor was the debt realisable from it. There was no relationship of mortgagor and mortgagee in regard to the sir or khudkshat plots which became bhumidhari. The debt, instead of being secured on the land, became secured on the compensation and rehabilitation grant and was realisable only from them.
43. It was argued that the mortgage with possession is converted into a simple mortgage. As defined in the Transfer of Property Act, a simple mortgage can only be in respect of some immovable property, This, therefore, suggests that the interest of a simple mortgagee continues in relation to the mortgaged land.
44. The submission is misconceived. Section 6 (g) (i) creates a simple mortgage. Section 6 (h) provides that the claim under such mortgage shall be enforceable only as provided in Section 72 of the Transfer of Property Act, 1882. Under that provision when land is acquired the mortgagee has a right to enforce his claim against the compensation payable. It is in this sense that the usufructuary mortgage is converted into a simple mortgage, so that the usufructuary mortgagee may, as a secured creditor, enforce his claim against the compensation, as provided in Section 73 of the Transfer of Property Act.
Section 6 (g) (ii) provides that-- "Notwithstanding anything contained in the mortgage deed or any other agreement, the amount declared due on a simple mortgage substituted under Sub-clause (i) shall carry such rate of interest and from such date as may be prescribed."
45. The Zamindaii Abolition Act did not provide any machinery for declaring the amount due on such mortgage. The U. P. Zamindari Debt Reduction Act, 1952, which came into force on 25th May, 1953, was an Act to provide for scaling down of debts of Zamindars whose estates had been acquired under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, 1950. Section 2 (a) defined the "amount due" to mean the amount which would be due if this Act had not been passed. Clause (m) defined "secured debt" to mean a debt secured by mortgage of an estate. Sections 3 and 4 provided for reduction of debt at the time of the passing of decree or after passing of decree in relation to secured debt. Under Section 8 (1) a decree relating to a secured debt is executable to the extent of three-fourth amount only against compensation and rehabilitation grant payable in respect of the mortgaged estate. Under Sub-section (2) of Section 8 the reduced amount found due in relation to mortgaged estates shah not be legally recoverable otherwise than out of the compensation and rehabilitation grant payable to such mortgagor or judgment-debtor in respect of such estates.
46. Even if by some line of reasoning it may be inferred that because of the existence of a simple mortgage some link continues between the mortgage and the land, such link is shattered by section 8 (2) of the Zamindari Debt Reduction Act, which makes it clear that no part of that debt can be recovered from anything else except the compensation, and rehabilitation grant. In the case of decrees passed before the Act, the amounts due whereunder were reduced under Section 4, the decree to the extent of the reduction so effected will be deemed for all purposes and on all occasions to have been duly satisfied -- vide Sec. 7. After the coming into force of1 the Zamindari Debt Reduction Act, no room was left for any doubt that the bhumidhari land was not security in any sense of the term for the simple mortgage. The simple mortgage was only in relation to the compensation and rehabilitation grant.
47. It was suggested that the vesting under Sections 4 and 6 is "except as hereinafter provided" and "save as otherwise provided in the Act". It was also suggested that Section 14 was intended to permit a mortgagee in possession to retain, his possession even though not "as such" over the land till the mortgagor considered it to be in his interest to take back possession and accordingly revoked his consent. It would be a provision which would squarely fall within the phrases "except as hereinafter provided and "save as otherwise provided in, the Act."
48. Section 4 provides for vesting of estates in the State free from all encumbrances 'except as hereinafter provided'. The phrase "except as hereinafter provided" refers to those provisions of the Act which deal with the vesting of the estate. It lias nothing to do with the possession of the intermediaries or tenure-holders or their transferees or the continuance of possession. Section 6 lays down the consequences of vesting of the estates in the State. It provides for extinguishment of all rights, title and interest of intermediaries in the estates. It extinguishes the usufructuary mortgages over the estates. The phrase "save as otherwise proivded in the Act" occurring in Section 6 refers to those provisions which deal with the right, title or interest of the intermediaries or their transferees and not with the nature of their possession before or after the date of vesting. Section 14 provides-
"14. Estate in possession of a mortgagee with possession. (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 a 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;
(b) if it was not sir or khudkasht of the mortgagor on the date of the mortgage, the mortgagee shall, subject to his paying to the State Government, within six months from the date of vesting an amount equal to five times the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting, be deemed, for purposes of Section 19, to have held such land a the date aforesaid as a hereditary tenant thereof at the said rate of rent:
Provided that if the mortgagee fails to pay the amount aforesaid within the time allowed, 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 or the Collector under Section 209 as if he were a person in possession thereof otherwise than in accordance with the provisions of this Act.
Explanation I. For the purposes of this section a mortgagee in possession includes a thekadar of his rights as mortgagee in the land.
Explanation II. Where any land has been mortgaged with possession and the mortgagor makes a second or subsequent mortgage of such land in favour of the same, or a different person, the expression on the date of the mortgage' shall mean the date of the mortgage in pursuance of which the mortgager first transferred possession to mortgagee."
49. In 1969 All LJ 1095 (supra) it was held that the phrase 'as such' means that the person is not entitled to retain, possession as a mortgagee. This is precisely what subsection (1) says. In my view the words "as such" occurring in Sub-section (1) had in mind the provisions of Clause (b) to Sub-section (2). in Clause (b) the mortgagee is deemed to be in possession as a hereditary tenant on the date immediately preceding the date of vesting, if he satisfies the conditions mentioned to that clause. In such cases the erstwhile mortgagee has a right io remain in possession as a hereditary tenant although the right to remain in possession as a mortgagee has ceased under Sub-section (1). The occurrence of the words "as such" does not have any relevance to tie phrase "except as hereinafter provided" or the phrase "save as otherwise provided in the Act" occurring in Sections 4 and 6.
50. I am unable to read Section 14 (1) as a provision which permits a mortgagee in possession to retain his possession till the mortgagor considered to be in his interest to take back possession and accordingly revoked his consent. Section 14 (1) does not speak about any one's consent at all. It straightway categorically provides that the mortgagee in possession shall not have any right to possess the land. It was urged that clauses (g) and (h) to Section 6 did not provide that the mortgagee with possession would, as a consequence of vesting, cease to be entitled to retain possession over the land in any capacity whatsoever. I find it difficult to appreciate the reasoning. Clauses (g) and (h) expressly provided for the extinguishment of the usufructuary mortgage and its substitution by a simple mortgage. The claim under the mortgage is not realisable from the estate at ail, but only from the compensation payable for it according to Section 73 of the Transfer of Property Act, This provision does not deal with possession or its retention. To expect that these provisions should have provided that the mortgagee with possession would cease to be entitled to retain possession in any capacity whatsoever is begging the question. When these provisions clearly extinguished the usufructuary mortgage because of which the mortgagee had a right to remain in possession and when Section 14 expressly provides that the mortgagee will cease to have any right to remain in possession because of his usufructuary mortgage, no room is left for any inference about any capacity whatsoever in which the erstwhile usufructuary mortgagee may be entitled to retain possession. Clause (b) of Section 14 (2) provides for a situation where the erstwhile mortgagee has been conferred a right to retain possession but as hereditary tenant. That capacity is expressly mentioned.
51. When a person's right or title to remain in possession is taken away, his possession normally is without any right or title, that is, unauthorised or adverse to whosoever has the right to possession. To urge that there should have been some provision that the man is not entitled to retain possession in any capacity whatsoever is asking for something which is foreign to the normal rules of legislation.
52. Cases where the Courts have recognised the possession of a person in lieu of interest are neither apposite nor relevant. In all those cases there is a definite agreement, whereby possession is transferred on an understanding that the transferee will remain in possession so long as the loan is not paid back. Though the mortgagee ID possession, after becoming a simple mortgagee under Section 6 is entitled to interest, as provided by the rules, there is no provision that the continued possession of the simple mortgagee would be in lieu of interest. As already discussed, under the Zamindari Debt Reduction Act, the entire mortgage money, including the accrued interest, is recoverable from the compensation and the rehabilitation grant. It is not recoverable otherwise. It is hence not correct to say that the retention of possession is in lieu of interest.
53. The first question refers to possession being after the date of vesting, adverse or permissive. The word "permissive" is likely to cause confusion. The problem raised by the first question is whether it will be with or without consent within meaning of Section 209. I would, therefore, reframe the first question as follows-
"Whether the possession of the mortgagee, whose rights have extinguished under Section 14 (1) of the U. P. Zamfndari Abolition and Land Reforms Act, is, on or after the date of vesting, per se with or without consent?
54. My answer to this question is that the retention of possession by such, mortgagee is per se without consent.
55. My answer to the second question is that the period of limitation for a suit under Section 209 commences to run from the date of vesting, the date of demand for possession being immaterial.
N.D. Ojha, J.
56. I have gone through the opinion of brother Sattsh Chandra J. but I regret my inability to agree with the conclusion reached by him. The necessary facts are contained in the opinion of brother Satish Chandra and as such without repeating them here I propose to deal with the questions of law straightway.
57. In view of a conflict of opinion between the decisions of two Division, Benches in (1969 All LJ 1095) and Ham Chet v. State of U. P. (Writ Petition No. 2733 of 1968 decided on 29-7-1968), the following questions of law have been referred to a Full Bench:--
(1) Whether the possession of the mortgagee whose rights have extinguished trader Section 14 (1) of the Zamindari Abolition and Land Reforms Act is on or after the date of vesting per se adverse or permissive?
(2) Does the period of limitation for a suit under Section 209 of the U. P. Zamin-dari Abolition and Land Reforms Act commence to run on the date of vesting or om the date of demand for possession?
58. In order to find out the true import of Section 14 of the U. P. Zarnindari Abolition and Lasmd Reforms Act (hereinafter referred to as the Act) it will be necessary to have in, view certain other sections of the Act which have a material bearing on the questions afoiresaid. Sub-section (1) of the Section 4 is the first such section which reads:
"(I) As soon as may be after the com-mencement of this Act, the State Government may, by notification, declare that, as from a date to be specified, all estates situate in the Uttar Pradesh shall vest in the State and as from the beginning of the date so specified (hereinafter called the date of vesting), all such estates shall stand transferred to and vest except as hereinafter provided, in the State fee from all encumbrances."
59. Section 6 is the section which deals with the consequences of the vesting of an estate in the State. This section also uses the phrase "save as otherwise provided! in this Act". It will thus be seen that the vesting in the State under the Act of the estates free from, all encumbrances is not like the vesting under Section 16 of the Land Acquisition Act but "except as hereinafter provided" or "save as otherwise provided in this Act." as contemplated by Sections 4 and 6 respectively. These phrases will include not only what has been expressly provided but also what has been provided by necessary implication. Sub-sections (g) and (h) of Section 6 contain the relevant provisions in regard to mortgages with possession of an estate or part of an estate. They provide: --
"(g) (i) Every- mortgage with possession existing on any estate or part of an 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 beea substituted by a simple mortgage.
(ii) notwithstanding anything contained in the mortgage-deed or any other agreement, the amount declared due on a simple mortgage substituted under sub-clause (i) shall carry such rate of interest and from such date as may be prescribed:
(h) no claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is seemed by a mortgage of such estate or part thereof shall, except as provided in Section 73 of the Transfer of Property Act, 1882, be enforceable against his interest In the estate;"
60. In view of Sub-section (g) a mortgage with possession contemplated therein is deemed to have been substituted by a simple mortgage tearing such rate of Interest and from such date as may be prescribed. Sub-section (h) regulates the mode of recovery of the amount payable under the mortgage. As already seen, Section 6 deals with the consequences of vesting of an (c)state in the State. Even though sub-sections (g) and (h), inter alia, provide that a mortgage with possession will be deemed to be substituted by a simple mortgage and no claim or liability shall, except as provided in Section 73 of the Transfer of Property Act, be enforceable against the interest of the intermediary in the estate, they do not provide that the mortgagee with possession would, as a consequence of vesting, cease to be entitled to retain possession over the land in any capacity whatsoever.
61. We then come to Section 14 which reads:
"(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 estates, (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;
(b) if it was not sir or fchudkasht of the mortgagor on the date of the mortgage the mortgagee shall, subject to his paying to the State Government, within six months from the date of vesting an amount equal to five times the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting, be deemed, for purposes of Section 19, to have held such land on the date aforesaid as a hereditary tenant thereof at the said rate of rent:
Provided that if the mortgagee fails to pay the amount aforesaid within the time allowed, 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 or the Collector, under Section 209 as if he were a person in possession thereof otherwise than in accordance with the provisions of this Act.
Explanation I. For the purposes of this section a mortgagee in possession includes a thekedar of. his rights as mortgagee in the land.
Explanation II. Where any land has been mortgaged with possession and the mortgagor makes a second or subsequent mortgage of such land in favour of the same, or a different person, the expression 'on the date of the mortgage, shall mean the date of the mortgage in pursuance of which the mortgagor first transferred possession to mortgagee."
Even Sub-section (1) of Section 14 does not contemplate that the mortgagee in possession shall cease to be entitled to retain possession over the land in any capacity whatsoever. The words "as such" are important. They have been used with some purpose. In J. K. Cotton Spinning and Weaving Mills Co. Ltd v. State o U. P. AIR 1961 SC 1170 it was held that in the interpretation of statutes the Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of a statute should have effect. It is also settled that Courts should lean against such a construction as far as possible which is likely to render certain words of the statute a mere surplusage; see State of Bombay v. Ali Gulshan, AIR 1955 SC 810. The import of the words "as such" clearly is that with effect from the date of vesting a mortgagee with possession of an estate or share therein shall cease to have any right to hold or possess any land in such estate as mortgagee in possession or usufructuary mortgagee. It is a well established proposition of law that possession of a mortgagee is with the consent of the mortgagor: see Municipal Board, Fyzabad v. Mt. Vidyadhari AIR 1921 Oudh 121, Shri Ram v. Dhan Bahadur Singh, AIR 1965 All 223 and Mustafa Khan v. Deputy Director of Consolidation, 1972 All LJ 854 = (AIR 1973 All 372). Possession of a mortgagee of even tenancy land whose transfer was forbidden by law was held to be permissive by a Full Bench of this Court in Mahabal Singh v. Ram Raj, 1950 All LJ 713 = (AIR 1950 All 604) (FB). The decision in this case has been approved by the Supreme Court in Raj Narain v. Sant Prasad, AIR 1973 SC 291. Consequently, on the date preceding the date of vesting the possession of the mortgagee was permissive. The Legislature will be deemed to be aware of this legal position when it enacted Section 14. In using the words "as such" the Legislature clearly intended not to deprive the mortgagee from retaining his permissive possession over the land. It only deprived him of the rights of a mortgagee in possession or usufructuary mortgagee. To allow the erstwhile mortgagee in possession to retain possession or not was left at the discretion of the person with whose consent the mortgagee in possession had entered into possession over the land. Even though a right was given to him to take immediate possession but he was not compelled to do so if in his own interest he thought it expedient to permit the mortgagee to retain possession till the consent was revoked. Any other interpretation is not reconcilable with the use of the words "as such". If the intention of the Legislature was otherwise, it would not have used these words. Courts cannot, therefore, render these words superfluous. This interpretation in my opinion does not also militate against the vesting provisions cantained in Section 4 or 6 in view of the phrases "except as hereinafter provided" or "save as otherwise provided in this Act" occurring in the said Sections. If Section 14 was intended to permit a mortgagee in possession to retain his possession even though- not "as such" over the land till the mortgagor considered it to be in his interest to take back possession and accordingly revoked his consent, it would certainly be a provision which would squarely fall within the phrase "except as hereinafter provided" or "save as otherwise provided in this Act.'
62. The matter may be looked into from another aspect. As already noticed above, by virtue of Section 6 (g) (i) a usufructuary mortgage gets substituted by a simple mortgage.' To find out the effect of this substitution it will be pertinent to keep in view the rights and liabilities attached to a simple mortgage. In this connection subsections (a) and (b) of Section 58 of the Transfer of Property Act may be referred to. From' their perusal the following position emerges. The ingredients of a mortgage are (i) that it is the transfer of an interest in specific immovable property and (ii) that such transfer is for the purpose of securing the payment' of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The ingredients of a simple mortgage are (i) that the mortgagor' binds himself personally to pay the money and (ii) that he agrees, expressly or impliedly, that in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage money.
63. It is, therefore not possible to conceive of a mortgage without an interest in specific immovable property being transferred for purpose of securing a debt. Normally, therefore, the erstwhile usufructuary mortgagee having become a simple mortgagee would have, in the event of the mortgagor failing to pay the mortgage money, been entitled to cause the mortgaged property of which he has become the simple mortgagee to be sold, but his right in this behalf has been taken away by Sub-section (h) of Section 6. What was then the purpose of providing that the usufructuary mortgage shall be substituted by a simple mortgage? It cannot be said that the Legislature was doing an exercise in futility. One such purpose seems to be to retain the status of the erstwhile usufructuary mortgagee as that of a secured creditor and to make provision for interest which may be different than the one under the usufructuary mortgage. There seems to be yet another purpose. It would be seen that a practice of putting a creditor in possession of immovable property in lieu of interest even if such creditor was only a simple mortgagee or holder of a simple money bond was fa vogue in the State of Uttar Pradesh among agriculturists when U. P. Zamindari Abolition and Land Reforms Act was passed. The Legislature will be presumed to be aware of this practice. It wanted to place the erstwhile usufructuary mortgagee, if he continued in possession even after the date of vesting on the same footing as that of a simple mortgagee who was put in possession over immovable property in lieu of interest before the date of vesting and continued in possession even thereafter. There is no provision in the U. P. Zamindari Abolition and Land Reforms Act as a result of which possession of such a simple mortgagee which was permissive in its inception may per se become adverse. In Hansu Koeri v. Jang Bahadur 1963 All LJ 456 the possession of creditor in lieu of interest payable on a simple mopey bond was held to be that of a licensee. The Legislature, therefore, seems to have brought about a situation in which if the mortgagor was of the view that it was in his interest to allow the mortgagee to retain possession over the land in lieu of interest payable under Section 6 (g) (ii) there may DC no statutory bar in doing so. If the mortgagor does not demand possession he will be deemed to have continued his consent till such time that it is revoked. It will not amount to a mprtgage of bhumidhari land within the meaning of Section 155 of the Act because the mortgage contemplated by this section is one executed by the bhumidhar "as such" i. e., as bhumi-dhar. Here the bhumidhar does not execute any such mortgage. A simple mortgage comes into being by operation of law and not by any voluntary act of tide bhumidhar. Even Section 164 of the Act will not apply because this section too contemplates transfer of a holding or part thereof by a bhumidhar by which possession is transferred and not transfer of possession simpliciter. A holding can be transferred only in one of the modes recognised by law. What would be the effect of the U. P. Zamindars' Debt Reduction Act, 1952, on such an arrangement is a different question. I express no opinion on it as it does not arise in these cases. As a result of the extinction of the usufructuary mortgage the possession of the mortgagee may have per se become adverse but this position was sought to be avoided and it was achieved by enacting Section 6 (g) and using the words "as such in Section 14.
64. One thing' more. From what has been discussed above and from the mere fact that two Division Benches of this Court took conflicting views there seems to be no doubt that the view that the consent did not automatically stand revoked and the possession of the mortgagee after the date of vesting continued to be permissive is, to say the least, a plausible view, even if not like only possible view. If the mortgagor was under an impression, as he obviously was, that the possession of the mortgagee even after the date of vesting continued to be permissive and under that impression he did not file a suit for his ejectment within the limitation prescribed for a suit under section 209, is he to be told subsequently that your rights have got extinguished and your mortgagee who continues to be a simple mortgagee has acquired sirdari rights under Section 210? I am aware that in interpreting a statute of limitation, equity has no place if such statute is clear and unambiguous. But that is not the position in these cases. Here interpretation of any statute of limitation, as such, is not involved. The question which really arises here is one of interpretation of a piece of beneficent legislation and it has to be decided as to which of the two possible interpretations to be preferred.
65. It cannot be disputed that Section 14 is a piece of beneficent legislation calculated to enable the debtor to get back his sir and khudkasht land. It is a rule of interpretation firmly established that in interpreting such a piece of legislation if there is any doubt, that doubt should be resolved in favour of the person for whose benefit the Act was passed; see Jivabhai Purshottam v. Chhiagan Karson AIR 1961 SC 1491. The policy of the Act was to give the debtor bhumidhari rights in his sir and khudkasht land which was in personal cultivation of the mortgagee in possession. In the instant case, in my opinion, 'the words of the statute, are clearly in favour of the mortgagor. But even if they are capable of two constructions, one of which is likely to defeat or impair the policy of the Act while the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adont the latter construction; vide Kanai Lal Sur v. Paramnidhi Sadhukhan AIR 1957 SC 907.
66. In this, view of the matter that interpretation of the relevant provisions of the U. P. Zammdari Abolition and Land Reforms Act is to be preferred which conforms with the intention of the beneficent legislation namely which saves the fights of the debtor and not that which destroys it. Such interpretation would be that the possession of the mortgagee cpntinues to be permissive even after the date of vesting till it is revoked by the mortgagor. The other interpretation would lead to an anomalous result. Not only the mortgagee will continue to be possessed of the right to realise the mortgage money as a secured creditor, he will also become sirdar of the land under Section 210. This would obviously defeat the very purpose of the Act.
67. It will, therefore, not be right to say that because of Sections 4, 6 and 14 of the Act the consent stood automatically revoked when estates stood vested in the State Government free from all encumbrances. Their effect would, foe that if the mortgagee continues in possession, even after the date of vesting the nature of his possession will not be permissive and neither the mortgagor nor the mortgagee will be entitled to claim any of the rights or be subject to any of the liabilities attached to an usufructuary mortgage. It would be so till the consent is revoked. Revocation of consent depends upon the volition of the person giving the consent and some act on his part, e.g., demanding possession or filing a suit for possession is necessary on account of which it can be said that consent has been revoked.
68. Let us now examine the provisions of Section 209 of the Act. A plain reading of this section makes it clear that before a suit under this section can be filed two ingredients have to be made put. The person against whom the suit is to be filed should be (1) a person taking or retaining possession of land otherwise than in accordance with the provisions of the law for the time being in force, and (2) he should have taken or should be retaining possession without the consent of the bhumidhar, sirdar or asami or the Gaon Sabha, as the case may be.
69. If a person enters into possession over the land of another without his consent, it will be a case of taking possession and if the possession of such person starts with consent but he continues in possession even after such consent has been revoked, he will, after the revocation of the consent, be retaining possession within the meaning of this section. If I may say so with due respect, the correct legal position in regard to the nature of possession of a mortgagee in possession after the date of vesting is as has been enunciated in Radhey Shyam's case 1969 All LJ 1095 (supra) namely:--
"Undoubtedly, a certain change in the nature of the legal rights of the Bhumidhar and his mortgagee was brought about by the Act but it could not have the effect of converting the permissive possession of the mortgagee into adverse possession. The mortgagee's right to be in possession in the capacity of a usufructuary mortgagee (the words as such in Section 14 (1) may be noticed) certainly came to an end by the force of a statutory provision with the result that it became devoid of legal sanction and was rendered entirely dependent upon the consent of the Bhumidhar which would, therfore. be rpvoked at will. The relvo-cation had to be a conscious and deliberate act of the Bhumdhar and from the mere fact that the right of the mortgagee to remain in possession became devoid of legal sanction it cannot be concluded that the consent of the Bhumidhar stood automatically revoked. It is true that revocation of consent by a Bhumidhar, in a case where the person in possession of his land loses the right to continue in possession which was in its origin permisr; sive, need not take any particular form, and if a suit under Section 209 of the Act is filed by the Bhumidhar for the ejectment of such person that would in itself be proof of and amount to revocation. But in the absence of any proof of revocation there will be a presumption of continuance of the consent so long as there is no denial by the person in possession, to the knowledge of the Bhumidhar, that his possession is permissive. Until such denial, the burden of proving which would be on the person in possession, his possession cannot assume the character of possession without the consent of the Bhumidhar and it cannot call for a suit under Section 209 of the Act."
70. As already seen above, there is nothing in the Act as a result of which the possession of the mortgagee could be said to have by operation of law per se become, on the date of vesting, without the consent of the mortgagor. Consequently, unless it was established that the mortgagee had clearly and unequivocally repudiated the permissive character of his possession to the knowledge of the mortgagor, his possession would continue to be permissive and with the consent of the mortgagor till such consent was revoked.
71. From the above discussion it also follows that the period of limitation for a suit under Section 209 of the Act will commence to run from the date of demand for possession and not from the date of vesting.
72. The suit petition in Ram Chefs case C. M. W. No. 2733 of 1963 = D/- 29-7-1968 (All) (supra) was rejected in limine. The various aspects of the matter referred to above do not seem to have been brought to the notice of the learned Judges and, in my opinion, it is Radhey Shyam's case 1969 All LJ 1095 (supra) which lays down the law correctly.
73. A similar view was taken by S. N. Dwivedi, J.. and H. C. P, Tripathi, J., in Special Appeal No. 240 of 1968, Ram Pyare v. Badri. This appeal was filed against the judgment in Badri v. Ram Pyare, 1968 R. D. 507, In support of the appeal reliance was placed on the decision in the case of Radhey Shyam 1969 All LJ 1095 (supra). For the respondents it was urged that in view of Sections 4 and 6 of the U. P. Zamindari Abolition and Land Reforms Act all land vested in the State and as such it could not be said that the respondent's possession over the disputed plot was with the permission of the mortgagors. This submission, however, was repelled and the spe-cial appeal was allowed on 13th November, 1970. It was held that reading Sections 4, 6 and 18 together, "it becomes evident that it was a contemporaneous arrangement whereby the ownership in the estate vested in the State, but the culti-vatory rights over the specific plots of land, namely, sir and khudkasht were settled with their original holder. That being so, the only difference which the aforesaid sections of the U. P. Zamindari Abolition and Land Reforms Act will bring in respect of this case is that the status of the mortgagor was raised from that of a sir-holder to the bhumiohar. That, in our opinion, will not affect the original position that the respondents entered into possession with the consent of the mortgagors on the basis of the usufructuary mortgage executed by them in respect of those plots. In this view of the matter we are of opinion that the view taken by the Division Bench in the case of Radhey Shyarri is correct and fully covers this case."
74. Learned Counsel for the mortgagee, however, urged that on sir and khudkasht land being mortgaged expro-prietary tenancy rights accrued automatically in favour of the mortgagor and if he did not take steps within limitation to recover possession in his capacity as an ex-proprietary tenant over the land from the mortgagee, his rights would extinguish and as such on the date of vesting the possession of the mortgagee would be in his own rights and not with the consent of the mortgagor. A plain reading of Section 14 of the Act would indicate that this section creates a legal fiction namely that if its requirements are made out, the mortgaged land "shall, for purposes of Section 18, be deemed to be the sir or khudkasht of the mortgagor or his legal representative." As a result of this legal fiction the mortgagor will notwithstanding the fact that the land was in possession of the mortgagee of an estate or share therein on the date of vesting, become bhumi-dhar of the said land.
75. In East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 at p. 132 Lord Asquith held:
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have followed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
76. In Commr. of Income-tax v. S. Teja Singh, AIR 1959 SC 352 it was held that it is a rule of interpretation Well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate. If the legal fiction contained in Section 14 is pursued to its logical conclusion, any conception of the mortgagee being in possession on the date of vesting not as mortgagee of such land but in his own rights so as to defeat the claim of the mortgagor to become bhumidhar is ruled out.
77. It is true that in virtue of Sections 4. 6 and 14 of the Act and the decision of the Supreme Court in Rana Sheo Ambar Singh v. Allahabad Bank. AIR 1961 SC 1790, the mortgage money cannot be recovered by sale of the land in which fresh rights of a bhumidhar are created in favour of the mortgagor and can be recovered only from the compensation and rehabilitation grant and not otherwise. But in my opinion in view of the foregoing discussion, this circumstance is not of much consequence so far as the determination of the question as to whether the consent stood automatically revoked or not is concerned. As would be clear from the observations made in Rana Sheo Ambar Singh's case to the effect. "Thus the mortgage consisted of the proprietary interest only of the mortgagor in the sixty seven villages, and as it was a simple mortgage, possession of no part of the property was given to the mortgagee", the mortgage in that case was not a usufructuary mortgage and the question as tp what would be the nature of possession of the mortgagee after the date of vesting had not come up for consideration in that case.
78. The cases under Section 127 of the Oudh Rent Act 1886, Section 34 of the North-Western Provinces Tenancy Act. 1901 and corresponding sections under the subsequent tenancy Acts laying down that the landlord has to either expressly or impliedly exercise his option to treat a trespasser as a tenant and that knowledge of a trespasser's possession for any period, however long, cannot be held to imply consent, in my opinion are of not much assistance in solving the problem with which we are faced namely whether the possession of a mortgagee which admittedly started with the consent of the mortgagor becomes automatically without his consent on the coming into force of Section 14 of the Act.
79. The case of Sita Ram v. Abhey Ram, 1944 RD 118 too is of no assistance. In that case one Shyamlal who was an occupancy tenant had executed a mortgage of his holding and put the mortgagee in possession. He did so with the consent of the then Lambardar Tikam Singh, subsequently one Sita Ram derived interest, in the proprietary title from Tikam Singh. Thereafter Shyamlal the tenant surrendered his tenancy rights in favour of Sita Ram. A suit was filed by Sita Ram for the ejectment of the mortgagee and one of the pleas raised in defence was that Tikam Singh having his consent to the execution of the mortgage aforesaid, Sita Ram who derived his title from Tikam Singh was estopped from filing the suit for ejectment. This plea was repelled by the Board of Revenue on the ground that the consent given by Tikam Singh was relevant only for the execution of the mortgage so that no suit for ejectment could be filed on the ground of illegal transfer but that consent could not be treated as an assurance that even if the interest of the tenant in the holding got extinguished by surrender the mortgagee would be immune from ejectment. What was held in substance was that consent given for a limited purpose could not be stretched to embrace within its sweep an altogether different purpose so as to attract the plea of estoppel. No question of estoppel is involved in the cases before, us. The distinction between a case where an occupancy tenant-mortgagor's interest in his holding got extinguished and a mortgagor who becomes bhumidhar in view of Sections 14 and 18 of the Act is apparent.
80. If an occupancy tenant was ejected or died without leaving any heir or surrendered the holding he ceased to have any interest whatsoever in the land and no question of his sub-tenant or li censee continuing in possession with his consent could naturally arise. He was completely obliterated from the scene.
The same is not the position of a usu fructuary mortgagee as is clear from the foregoing discussion. The status of the mortgagee is substituted from usu-
fructuary mortgagee to simple mort gagee subject of course to the statu tory restrictions created by Section 6 (h).
He continues to be a secured creditor.
His continuance in possession even after the date of vesting is not disfavoured by the Legislature, except that his posses sion will not be as usufructuary mort gagee. Even the mortgagor who had given his consent is not completely obliterated from the scene so that he ceases to have any interest in the land as is the case with an occupancy tenant after his being ejected or dying without leaving any heir or surrendering the holding. Here fresh rights of bhumidhar are created in favour of the mortgagor in that very land in place of the earlier rights which vested in the State and the mortgagor gets a simultaneous right--so to speak without any hiatus to take or retain possession over that very land as bhumidhar over which the usufructuary mortgagee was in possession as such till the date of vest ing and continues in possession even thereafter even though not "as such". It is in this context that the nature of his possession after the date of vesting has to be considered and on such consideration it does not appear that his possession be comes per se adverse after the date of vesting.
81. The observations made in Radhey Shyam's case 1969 AH LJ 1095 (supra) to the effect that "the mortgaged property continued to be a security for the debt and the relationship not only of debtor and creditor but also of mortgagor and mortgagee was left subsisting between the parties to the mortgage, vide Section 6 (g) (i) of the Act" have to be read in the context in which they were made. As is apparent they were made relying upon Section 6 (g) (i) which provides that a usufructuary mortgage shall be deemed, without prejudice to the rights of the State Government under Section 4, to have been substituted by a simple mortgage. These observations reproduce the ingredients of a simple mortgage. The observations made in paragraph 11 of the report that the mortgage debt remained realizable from the mortgaged property even after the enforcement of the Act, no doubt, cannot she taken to interpret the law correctly in view of the decision of the Supreme Court in Rana Sheo Ambar Singh's case, AIR 1961 SC 1790 (supra).
82. My answer to the two questions referred to above is, therefore, as follows:--
(1) The possession of the mortgagee whose rights have extinguished under Section 14 (1) of the Zamindari Abolition and Land Reforms Act on or after the date of vesting is not per se adverse but is permissive.
(2) the period of limitation for a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act would commence to run not from the date of vesting but from the date of demand for possession.
R.L. Gulati, J.
83. I agree.
BY THE COURT
84. In view of the majority opinion the questions referred to this Bench are answered as follows:--
(1) The possession of the mortgagee whose rights have extinguished under Section 14 (1) of the Zamindari Abolition and Land Reforms Act on or after the date of vesting is not per se adverse but is permissive, (2) The period of limitation for a suit under Section 209 of the U. P. Zamindari Abolition and Land Reforms Act would commence to run not from the date of vesting but from the date of demand for possession.