Supreme Court Remands Mortgage Redemption Suit for Fresh Determination on Khud-kasht Status Under Madhya Bharat Zamindari Abolition Act, 1951. High Court Erred in Denying Possession Without First Deciding Whether the Land Was Khud-kasht and Whether the Appellant Was Entitled to Retain Possession Under Section 4(1)(f) of the Act, and the State Should Have Been Impleaded as a Necessary Party.

Civil suit for redemption of a mortgage with possessory relief sought by the mortgagors against the mortgagees and other persons in possession claiming as tenants.

The plaintiffs sought redemption of the mortgage, recovery of possession of the mortgaged land, and mesne profits.

The mortgage was created in May 1939; the mortgagors gave notice for redemption in May 1943, which was refused, necessitating the suit.

The trial court decreed redemption but disallowed mesne profits; the first appellate court partly allowed mesne profits from the date of deposit of the mortgage amount; the High Court held that the plaintiffs could redeem but could not recover possession because proprietary rights had vested in the State under the Madhya Bharat Zamindari Abolition Act, 1951.

Whether the High Court was justified in holding that the plaintiffs were entitled to redeem the mortgage but not to get possession of the mortgaged land on the ground that all proprietary rights had vested in the State under the Madhya Bharat Zamindari Abolition Act, 1951, without first determining whether the land in dispute was khud-kasht within the meaning of Section 4(1)(f) of the Act, and whether the State was a necessary party to the proceedings.

The appellants argued that reliance on the Madhya Bharat Zamindari Abolition Act in the High Court was improper and that they were not afforded an opportunity to show that the land was their khud-kasht, which would entitle them to retain possession under Section 4(1)(f) of the Act. The respondents presumably argued that the Act applied and the land vested in the State, disentitling the plaintiffs to possession.

Under the Madhya Bharat Zamindari Abolition Act XIII of 1951, a proprietor is entitled to continue to retain possession of his khud-kasht land recorded in the annual village papers before the date of vesting, and the mere fact of vesting of proprietary rights in the State does not automatically deprive the proprietor of possessory rights over khud-kasht land. Before rendering a decision on the effect of the Act on possession, the court must first adjudicate the factual dispute as to whether the land in question qualifies as khud-kasht, and the State must be impleaded as a necessary party because its title is directly involved.

Under the Act the proprietor, ... is entitled to continue to retain possession of his Khud-kasht land which is so recorded in the annual village papers before the date of vesting. These rival controversial claims pressed by both the parties was the central question involving proper appraisal of the material on the record and this basic dispute had to be first adverted to and judicially determined and thereafter the Court had to consider the applicability of the relevant provisions of Act XIII of 1951 to the facts found.

In May 1939, a mortgage was created by Ramle Singh and Jomdar Singh in favor of Munshi Singh. In May 1943, the mortgagors' notice for redemption was refused, and the present suit was instituted in June 1943. The Madhya Bharat Zamindari Abolition Act XIII of 1951 was enforced on May 25, 1951. After an initial disallowance, the High Court on October 10, 1955 permitted the plaintiffs to amend the plaint to include a reference to the new Act. On October 10, 1958, the trial court decreed the suit for redemption but disallowed mesne profits. Three appeals were filed in the District Court; the first appellate court, by a common judgment in October 1960, partly allowed the plaintiffs' appeal for mesne profits and dismissed the other appeals. The defendants then filed second appeals in the High Court, and the plaintiffs also appealed against the partial refusal of mesne profits. On September 27, 1962, the High Court partly allowed the defendants' appeal, holding that the plaintiffs were entitled to redeem the mortgage but could not recover possession because all proprietary rights had vested in the State under the said Act, relying on Haji Sk. Subban v. Madho Rao. The plaintiffs obtained special leave to appeal to the Supreme Court (Civil Appeal No. 1438 of 1967). The Supreme Court set aside the High Court's judgment on October 27, 1969, and remanded the case for fresh decision.

• Madhya Bharat Zamindari Abolition Act XIII of 1951: 2(a), 2(c), 3, 4(1)(f)