# RAJ NARAIN PANDEY & ORS v. SANT PRASAD TEWARI & ORS

- **Citation:** [1973] 2 S.C.R. 835
- **Court:** Supreme Court of India
- **Decided:** 1972-10-31
- **Case number:** Civil Appeal No. 1308 of 1967
- **Bench:** H. R. Khanna, Y. V. Chandrachud, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-narain-pandey-ors-v-sant-prasad-tewari-ors-5907
- **Pages:** 7

## Headnote

U.P. Tenancy Act (17 of 1939) ss. 33, 44, 45, 8·2· and 180-Scope of
Stare Decisis-Application by Supre1ne Court with respect to decisiom
of High Court interpreting /occ./ Statutes.
In interpreting ss. 33, 44, 45, 82 and 180 of the U.P. Tenancy Act,
1939, the High Court, in two Full Bench decisions. namely ChasS11 v.
Babu R"m [A.l.R. (31) 1944, Allahabad 25] Mahaha/ Singh
v. Ram
Raj (A.l.R. (37) 1950 Alkihabad 604), held:
(1) That the usufructuary mortgage of an occupancy holding by a tenant is void and not ~dable; (2) that a !"ortgagor after _giving_ possession
to the mortgagee cannot recover possession of the holding without paying the money which he had taken from the mortgagee; (3) that a mortgagee of an occupancy holding by remaining in possession for over 12
year uoes Mt extinguish the rights of the mortgagor to redeem him and
by such possession the mortgagee only prescribes for mortgagee rights; ( 4)
that it is open to the· mortgagor to seek possession of the holding
by
tendering the consideration which he had received and he may do so by a
redemption suit; (5) that the relationship which comes into existence as
a result of the mortgage of an occupancy holding and its possessioμ -being
transferred to the mortgagee, is analogous to that of a mortgagOi" and
mortgagee and the action to recover possession is analogous to red em p_tjon
u.nd ( 6 J such a suit is maintainable suit in a civil court.
In the present case, the occupancy tenant of the land in dispute executed a mortgage deed in respect of the land in favour of the appellants
and put them in possession.
Respondents !' to· 6 were
subsequently
accepted as the occupancy tenants by the landlords in place of the previous
occupancy tenant and have also been declared to bo lhe Bhumidars of the
land.
Respondents I to 6 filed a suit for possession of the land. after
depositing the mortgage money in court.
The suit was decreed in appeal. by the High Court, following the earlier Full Bench decisions.
Dismissing the appeal to this Court,
HELD : (!) in the matter of the interpretation of a local statute, the
view tal:en by the High Court over a number of years should normally
be adhered to and not disturbed.
A different view would not only introduce an element of uncertainty and confusion, it would also have the efrect
of unsettling transactions which might have been ente:-.d into on the
faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation by a superior court not strictly bound by the
decision.
[840 B·E]
Brownsaa Haven Properties v. Poole Corpn. (1958] Ch. 574 (C.A.)
referred to.
(2) The status of the appellants was analogous to that of the mortgagees and the successor of the origim1J mortgagor would be entitled to
2-L521Sup.C.I.173
836
SUPREME U>URT REPORTS
(l 973] 2 S.C.R.
recover possession of the land on payment of the mortgage money.
As
respondents 1 to 6 were
the
occupancy
tenants of the
land
and
as they were declared to be the Bhumidars,
they
had sufficient
inter
est in the land, to institute the suit under s.91 (a) of the Transfer of
Property Act, 1882. [841 A-El

## Text

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835
RAJ NARAIN PANDEY & ORS.
v.
SANT PRASAD TEWARI & ORS.
October 31, 1972
[H. R. KHANNA, Y. V. CHANDRACHUD AND C. A.
VAIDIALINGAM, JJ.]
U.P. Tenancy Act (17 of 1939) ss. 33, 44, 45, 8·2· and 180-Scope of
Stare Decisis-Application by Supre1ne Court with respect to decisiom
of High Court interpreting /occ./ Statutes.
In interpreting ss. 33, 44, 45, 82 and 180 of the U.P. Tenancy Act,
1939, the High Court, in two Full Bench decisions. namely ChasS11 v.
Babu R"m [A.l.R. (31) 1944, Allahabad 25] Mahaha/ Singh
v. Ram
Raj (A.l.R. (37) 1950 Alkihabad 604), held:
(1) That the usufructuary mortgage of an occupancy holding by a tenant is void and not ~dable; (2) that a !"ortgagor after _giving_ possession
to the mortgagee cannot recover possession of the holding without paying the money which he had taken from the mortgagee; (3) that a mortgagee of an occupancy holding by remaining in possession for over 12
year uoes Mt extinguish the rights of the mortgagor to redeem him and
by such possession the mortgagee only prescribes for mortgagee rights; ( 4)
that it is open to the· mortgagor to seek possession of the holding
by
tendering the consideration which he had received and he may do so by a
redemption suit; (5) that the relationship which comes into existence as
a result of the mortgage of an occupancy holding and its possessioμ -being
transferred to the mortgagee, is analogous to that of a mortgagOi" and
mortgagee and the action to recover possession is analogous to red em p_tjon
u.nd ( 6 J such a suit is maintainable suit in a civil court.
In the present case, the occupancy tenant of the land in dispute executed a mortgage deed in respect of the land in favour of the appellants
and put them in possession.
Respondents !' to· 6 were
subsequently
accepted as the occupancy tenants by the landlords in place of the previous
occupancy tenant and have also been declared to bo lhe Bhumidars of the
land.
Respondents I to 6 filed a suit for possession of the land. after
depositing the mortgage money in court.
The suit was decreed in appeal. by the High Court, following the earlier Full Bench decisions.
Dismissing the appeal to this Court,
HELD : (!) in the matter of the interpretation of a local statute, the
view tal:en by the High Court over a number of years should normally
be adhered to and not disturbed.
A different view would not only introduce an element of uncertainty and confusion, it would also have the efrect
of unsettling transactions which might have been ente:-.d into on the
faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation by a superior court not strictly bound by the
decision.
[840 B·E]
Brownsaa Haven Properties v. Poole Corpn. (1958] Ch. 574 (C.A.)
referred to.
(2) The status of the appellants was analogous to that of the mortgagees and the successor of the origim1J mortgagor would be entitled to
2-L521Sup.C.I.173
836
SUPREME U>URT REPORTS
(l 973] 2 S.C.R.
recover possession of the land on payment of the mortgage money.
As
respondents 1 to 6 were
the
occupancy
tenants of the
land
and
as they were declared to be the Bhumidars,
they
had sufficient
inter
est in the land, to institute the suit under s.91 (a) of the Transfer of
Property Act, 1882. [841 A-El
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1308 of
1967.
Appeal by special leave from the judgment and decree dated
December 7, 1966 of the Allahabad High Court in Appeal No.
5252 of 1960.
C. B. Agarwal and K. P. Gupta, for the appellant.
G. N. Dikshit and S. K. Bisaria, for the respondents.
The Judgment of the Court was delivered by
KHANNA, J. This appeal by special leave is directed against
the judgment of Allahabad High Court whereby that Court reversed the decisions of the trial Court and the first appellat!< court
and awarded a decree for the possession of the land in dispute in
favour of the plaintiff-respondents against the
defendant-appellants. The appellants were further held to be. e:ititled to withdraw
the mortgage amount which had been deposited by the respondents.
On January 16, 1923 Ganga Prasad Rai, father of Lachhman
Singh plaintiff-respondent No. 7, executed a mortgage deed in
respect of land in dispute for Rs. 600 in favour of Ram Cheej
Pandey and put him in possession thereof as a mortgagee. Ram
Cheej Pandey, who was impleaded as defendant No. I in the suit,
is now dead and the appellants, who too were
impleaded as
defendants, are his legal representatives. Ganga Prasad Rai at the
time of the mortgage was the occupancy tenant of the land in
dispute. On January 6, 1955 plaintiff-respondents No. 1 to
6
along with Lachhman Singh plaintiff No. 7 filed the present suit
for possession of the land in dispute against Ram Cheej Pandey
and others on the allegation that Lachhman Singh had transferred all his rights in the land with the consent and permission of
the Zamindar (the land-lord) in favour of plaintiffs 1 to 6. It was
stated that,. as a result of the said transfer, plaintiffs 1 to 6 had
become the occupancy tenants of the land in dispute. The plaintiffs l to 6 also claimed to have acquired Bhumidari rights of the
land by depositing ten times the amount of the land
revenue.
According to the plaintiffs, they had a right to redeem the land
from the mortgagee, but as the mortgagee was not prepared t0
give back the land on receipt of the mortgage money, the plaintiffs were depositing the amount in court. It was also added that
plaintiff No. 7 had been joined as a co-plaintiff 'with plaintiffs 1 to
§ to avoid >ny dispute. Raj Narain Pandey, son of Ram Cheej
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R. N. PANDEY V, S. 1'. TEWARI (KhiJnna, /,)
837
Pandey, as well as two minor sons of Raj Narain were impleade4
as defendants on the ground that the four defendants were members of the joint Hindu family and, as such, were in possession of
the land in suit.
The suit was contested by Raj Narain Pandey. Raj
N:irain
Pandey admitted the mortgage alleged bv the plaintiffs. It was,
however, averred that plaintiffs 1 to 6 had no right to redeem the
land. The plaintiffs suit·was further stated to be barred by limitation as, according to the written statement, the defendants were
in ad verse possession of the land for more than 12 years.
Th~ trial court found that the plaintiffs suit was not barred by
time. The plaintiffs were, however, held to have' no right to sue. In
the result, the suit was dismissed. On appeal, learned Additional
Civil Judge Ballia held that plaintiffs 1 to 6 were not the successors of plaintiff No. 7. It was further observed that the defendants,
after the mortgage, had become trespassers in the land and the
suit against them was barred by time. When the matter was taken
up in second appeal before the High Court, the learned Judge
held that in 1946 plaintiffs 1 to 6 had acquired, as a result of
agreemcni with the Zamindar, the same rights which had vested
in plaintiff No. 7 before he surrendered those rights. The learned
Judge further referred to two Full Bench decisions of Allahabad
High Court, namely, Ghassu and Anr. v. Babu Ram and Anr.(')
and Mahabal Singh and Anr. v. Ram Ra; and Ors. (2 ) and in the
light of those decisions, held that mortgagee of an occupancy holding by remaining in possession for over 12 yea'rs did not extinguish
the right of the mortgagor to redeem him and by such possession
the mortgagee only prescribed for mortgagee rights. It was further held that the plaintiffs were entitled to redee"l the mortgage
and recover possessi011 of the land and that the suit of the plaintiffs was not barred by time. In the result, the plantiffs appeal was
accepted, the decisions of the courts below were set aside, and a
decree for possession of the land in dispute was awarded in the
plaintiffs favour. The defendants were held entitled to withdraw
the mortgage amount already deposited by the plaintiffs.
Mr. Agarwal in appeal before us has submitted on behalf of
the defendant-appellants. that plantiff-respondents 1 to 6 were not
entitled to sue for possession of land on payment of 1he mort!!age
money and that their suit was barred by limitation. The above
submissions have been controverted by Mr. Dikshit on behalf of
the plaintiff-respondents, and he has canvassed for the correctnes~
of the view taken by tile High Court.
Before dealing further with the matter, we may refer to some
of the statutory provisions which have been referred to by Mr.
Agarwal. Sub-section (1) of section 33 of the U.P. Tenancy Act,
(!) A.l.R. (31) 19H Allah bid 25.
(l) A.l.R. (37) 1950 Allahabad 604.
83R
SUPREME COURT REPORTS
[1973] 2 S.C.R.
·193'1 (U.P. Act No. 17 of 1939) (hereinafter referred to as the
Act of 1939) provides, inter a/ia, that the interest of an occupancy
tenant is not transferable, otherwise than in accordance with the
provisions of :he Act According to sub-section (I) of section 44
of that Aa, every transfer, other than a sub-lease, made by a
tenant in contravention of the provj_sions of this Act, shall be void.
Section 45 of the above mentioned Act deals with the extinction
of tcnm1cy, and according to clause (c) of the section, the interest
'llf a tenant shall be extinguished subject to the provisions of sections 81 to 88 by surrender. Surrender by a tenant is dealt with
in section 62 of the Act. Jt is provided in the section that a tenant
npt bound by lease or other agreement for a fixed term to continue to occupy the land, may at the end of any agricultural year
surrender his holding, by sending a registered notice to his landholder intimating his intention to do so and by giving up possession
thereof whether such holding is or is not sub-let or mortgaged.
Further conditions are also prescribed in that section, but we are
not concerned with them. Section 180 of the abon mentioned
Act provides for ejectment of person occupying land without con-
" sent. According to this section, a person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot and otherwise than in
accordance with the provisions of the Jaw for the time being in
force, shall be liable to ejectment under this section on the suit
of the person so entitled and also to pay damages which
may
extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants.
The Fourth Schedule to the Act deals with suits triable by Revenue
Courts and prescribes the period of limitation for such suits. Subclause (b) of clause 2 of item No. 18 of Group B of the said
Schedule prescribes a period ol two years for filing the suit under
section 180 of the Act "from the I st July following the date· of
the commencement of this Act, whichever is later".
Reference has also been made by Mr. Agarwal to the following passage in the judgment of the High Court :
"At the same time, it is equally clear that the rights
acquired by plaintiffs No. 1 to 6 as a result of the contract of tenancy entered into by the Zamindar in their
favour in 1946 were the same rights which vested in
the 7th plaintiff before surrender and which had passed
on to th~ Zamindar by act of surrender by the 7th plaintiff. At the time of the settlement in 1946 the defendants were in possession under a void usufructuary
mortgage. The surrender by the 7th plaintiff preceding
the aforesaid settlement could only be a surrender of
such righl's as the 7th plaintiff still had at that time and,
similarly, the settlement in favour of plaintiffs Nos. 1 to
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R. N. PANDEY v. s. P. TEWARI (Khanna, I.)
839
6 by the Zamindar could only be settlement of those
very rights. What, therefore, has to be considered is
what was the nature of the rights which the 7th plaintiff Lachhman Singh retained after executing the void
mortgage in 1923 and putting the first defendant in possession.''
It is urged by Mr. Agarwal that though plainrifl; No. 7 surrendered
his occupancy rights in favour of the landlord, the· effect of that
was not only the extinction of the occupancy rights but also the
extinction of the mortgage in favour of the defendant-appellants.
The possession of the land in dispute by the defendant-appellants
thereafter was as trespassers. A suit against them, according to
Mr. Agarwal, should have been brought in the Revenue Court by
the plaintiff-respondents, in whose favour fresh occupancy rights
had been created by the land-lord, within two years under section
180 read with item 18 of Fourth Schedule of Ad of 1939. As no
suit was brought within the prescribed time against defendantappellants and as they remained in adverse possession of the land
for a period of more than 12 years, the present suit brought by the
plaintiff-respondents, it is submitted, was barred by time.
We are unable to accede to the above contention, because we
find that the matter is covered by two Full Bench decisions of the
Allahabad High Court. In a five-judge decision of the Allahabad
High Court in the case of Mahabal Singh and Anr. v. Ram Raj and
Ors. (supra), the court referred 1o the decision of a three-judge
bench of that court in the case of Ghassu and Anr. v. Babu Ram
and Anr. (supra) and found that the following five propositions
had been laid down in the earlier case :
" ( 1) That the usufn1ctuary mortgage of an occuF
pancy holding by a tenant is
void and not
voidable.
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(2) That a mortgagor after giving possession to
the mortgagee cannot recover possession of the
holding without paying the money which
he
had taken from the mortgagee.
( 3) That a mortgagee of an occupancy holding by
remaining in possession for over 12 years does
not extinguish the rights of the mortgagor to
redeem him and by such possession the mortgagee only prescribes for mortgagee rights.
(4) That it is open to the mortgagor to seek possession of the holding by tendering the consideration which he had received and he may do so
by a redemption suit.
840
SUPREME COURT REPORTS
[1973] 2 s.c.R.
(5) The relationship which comes into existence as
a result of the mortgage of an occupancy holding and its possession being transferred to the
mortgagee, though not strictly speaking that of
a mortgagor and a mortgagee, is analogous to
that relationship, and the action which is raised
by the mortgagor to recover possession of :he
holding on payment of the money due to the
mortgagee, though not strictly in the nature of
a redemption, is
analogous to a redemption
suit."
It was also observed that to take a contrary view ·from the law
laid down in those five propositions would have the effect of unsettling the law established for a number of years. Mr. Agarwal has
not questioned the correctness of the above mentioned five propositions and, in our opinion, rightly so. 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 an elemen~
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 deci~is can be aptly
invoked in such a situation. As observed by Lord Evershed M.R. in.
the case of Browmea 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 bl)und itself by the decision.
In the light of the above mentioned Full Bench decisions, it
canno~ be disputed that the status of the defendant-appellants was
analogous to that of mortgagees. It also cannot be disputed that the
successor of the original mortgagor would be entitled to recover
possession of the mortgaged land from the defendant-appellants
on payment of the mortgage money. Mr. Agarwal, however, submits that plaintiff-respondents 1 to 6 are not the successors of
Lachhman Singh plaintiff No. 7.
It is urged that after the
sur;ender of the occupancy rights by Lachhman Singh, the plaintiff-respondents cannot ask for redemption of the mortgage created
by Lachhman Singh. This contention. in our opinion. is not well
founded.
The copy of the compromise decree dated January 4.
1946/Febrnary 2, 1945 has been placed on record. and i~ would
appear therefrom that in a suit brought bv the nlaintiff-responlleuts 1 to 6 against the landlords and Lachhman Singh (who was
descn'bedl.jn that suit as Lachhman Rai). the plaintiffs 1 to 6 were
accepted 'lo be occupancy tenants of the land in dispute. The
(1) [19581 Ch. 574 (C.A.)
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R. N. PANDEY V, s. P. TEWARI (Khanna,!.)
841
effect of that decree was that while the occupancy, rights of Lachhman Singh c!lille to an end, those of plaintiff-respandell'ts 1 to 6
came into existence at the same time. As plaintiff -respondents 1 to
6 became the occupancy tenants of the land in dispute, they were,
in our opinion, entitled to redeem the land from the mortgagees.
The material on record also indicates that plaintiff-respondents 1
to 6 have been declared to be the Bhumidars of the land in dispute. Sanad dated October 5, 1949 declaring them to be Bhuinidars of the land was issued on October 5, 1949.
~ plaintiffrespondcnts 1 to 6 were the occupancy tenants of· the land in dispute and as they were declared to be Bhumidars, they had, in our
opinion, sufficient interest in the land as clothed them with the
right to redeem it from· the mortgagees. Clause (a) of section 91
of the Transfer of Property Act provides,
inter alia,
that any
person (other than the mortgagee of the interest sought to be
redeemed) who has any interest in, or charge upon ~he property
mortgaged or in or upon the right to redeem the same,
may
institute a suit for redemption of the mortgaged property. The
case of the plaintiffs, Who were the occupancy tenants and Bhumidars of the land in dispute, is clearly covered by clause (a) of
section 91 of the Transfer of Property Act. The fact that the
present suit hi.s been filed not by tile occupancy tenant who mortgaged the property but by others in whom the occupancy rights
were subsequently vested would, in our opinion, make no difference and would be n() bar to the maintainability of the suit. n
is ~ignificant in this context to observe that plaintiffs 1 to 6 became
the occupancy tenants of the same land of which
Lachhman
Singh's father was the occupancy tenant at the time of the mortgage.
It has also bjlen argued by Mr. Agarwal that the suit for possession brought by the plaintiff-respondents was not maintainable
in a civil court and could only be tried by a revenue court. Apart
from the fact that no such plea was taken in the written statement
or in the trial court or the first appellate court, we find that the
five-judge bench of the Allahabad High r:'.ourt in the case of
Mahabal Singh and Anr. (supra) has heid that such a suit ls
maintainable in a civil court. We see no cogent ground to dis•
turb that view.
'I11e appeal fails and is dismissed with costs.
V.P.S.
Appeal dismissed.