Full Judgment Text
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PETITIONER:
PATEL RAMBHAI BACHARBHAI & ANR.
Vs.
RESPONDENT:
PATEL DAHYABHAI BECHARBHAI & ANR.
DATE OF JUDGMENT:
04/04/1966
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
RAMASWAMI, V.
CITATION:
1967 AIR 162 1966 SCR 146
ACT:
Bombay Agricultural Debtors Relief Act (28 of 1947), ss.46
and 56-Scope of.
HEADNOTE:
The father of the first respondent sold his lands to the
second respondent but continued to be in possession. The
second respondent sold them to the appellants who were put
in possession in 1934. In August 1945, the first respondent
filed a petition against the second respondent, before the
Debt Adjustment Board, under Ss. 17, 18 and 45 of the Bombay
Agricultural Debtors Relief Act, 1939, within the time
prescribed by S. 17, alleging that the transaction with the
second respondent was a mortgage and- that the debt was
liable to be adjusted under the Act. The first appellant
was impleaded as a party to the petition in December 1945,
beyond the time specified in S. 17. No appeal was filed
against that order, and in 1947, the Board disposed of the
petition for adjustment of debt by directing the second
respondent to render accounts. He appealed and, pending the
appeal, the 1939 Art was repealed by the Bombay Agricultural
Debtors Relief Act of 1947. In 1949, the appellate Court
set aside the Board’s order and remanded the case to the
Civil Judge, for deciding the nature of the transaction,
because, under the 1947 Act, the Board was dissolved and its
jurisdiction was vested in the Civil Judge. In 1950, the
first respondent’s application to the Civil Judge for
impleading the second respondent also as a party to the
petition for adjustment of the debt, was allowed, and
thereafter, the matter was disposed of on merits.
On the questions: (i) Whether the orders impleading the
appellants were without jurisdiction. and (ii) whether the
appellants had acquired title to the lands by adverse
possession,
HELD: (i) The orders were not without jurisdiction.
Under the repealed Act, if a party was added beyond the
period prescribed under S. 17 of the Act, if he was added as
a necessary party to a petition filed in time, the said
order might be improper but not without jurisdiction. [151
C-D]
Under S. 56 of the 1947 Act, original and appellate
proceedings initiated under the repealed Act but pending at
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the time the 1947 Act came into force will have to be
disposed of in accordance with the substantive and
procedural sections of the 1947 Act. Under S. 46 of the
1947 Act, the court is empowered. in a suitable case, to add
Parties under 0.1, r. 10, Civil Procedure Code, and they may
be added irrespective of the time limit prescribed under the
repealed Act, or the time specified in Ss. 4 and 24 of the
1947 Act. [152 A-C]
Case law referred to.
(ii) The appellants had not acquired any title by adverse
Possession, as the petition for adjustment of debt was filed
within 12 years from the date of their occupation of the
suit lands. [153 F]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 386 of 1964.
Appeal by special leave from the judgment and order dated
January 10, 1962 of the Gujarat High Court in Civil Revision
Application No. 158 of 1960.
S. V. Gupte, Solicitor-General, S. H. Sheth and M. V.
Goswami, for the appellants.
G. L. Sanghi and A. G. Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by
Subba Rao, J. This appeal by special, leave is directed
against the order of the Gujarat High Court in Civil
Revision Application No. 158 of 1960 confirming that of the
District Judge, Kaira, holding that the 1st respondent
herein was a debtor and directing the Civil Judge,
Kapadvanj, to adjust the debt under the provisions of the
Bombay Agricultural Debtors Relief Act.
The relevant facts may be briefly stated. The father of the
first respondent owned three pieces of land bearing Survey
Nos. 93, 102/3 and 125/1 in village Chikhlod, Taluka
Kapadwanj, District Kaira in the State of Gujarat. On June
9, 1933, he sold the same by an oral vardi to respondent No.
2 for a sum of Rs. 2,701 / but continued to be in
possession thereof. On April 7, 1934, the 2nd respondent
sold the said lands to the 1st appellant by an oral vardi
for Rs. 2,521 / and the 1st appellant got possession
thereof on the said date. In a partition that was effected
in the joint family of the 1st appellant, survey No. 93 went
to the share of the 2nd appellant and the remaining two
lands fell to the share of the 1st appellant. The
appellants have been in possession of the said lands from
April 7, 1934. On August 3, 1945, the 1st respondent filed
an application before the Debt Adjustment Board under s. 17,
read with s. 18 and s. 45 of the Bombay Agricultural Debtors
Relief Act, 1939. To that application only the 2nd
respondent was made a party. His case was that his father
had money dealings with the 2nd respondent and in
consideration of past debts his father had sold the said
lands to the 2nd respondent in 1933 by way of an oral sale
with a condition of reconveyance of the said lands to the
vendor and, therefore, the said debt was liable to be
adjusted under the provisions of the said Act. The 2nd
respondent denied that he had any money dealings with the
father of the 1st respondent and stated that the lands were
not in his possession. On December 4, 1945, the respondent
made an application before the Debt Adjustment Board for
adding the appellants as respondents to the petition. It
appears from the record that only the 1st appellant was made
a party-respondent to
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that application. On April 29, 1947, the said Board held
that the sales in favour of the 2nd respondent and the
appellants were invalid and directed the 2nd respondent to
render the accounts. Against that order, the 2nd respondent
preferred an appeal to the District Judge at Nadiad. On May
27, 1947, Bombay Agricultural Debtors Relief Act 28 of 1947,
hereinafter called the new Act, came into force and under s.
56(2) thereof the Bombay Agricultural Debtors Relief Act,
1939, hereinafter called the repealed Act was repealed. On
April 14, 1949 the learned District Judge, Kaira, set aside
the order of the Board and remanded the case to the court of
the Civil Judge (Junior Division) at Kapadwanj with a
direction to decide afresh the question of the nature of the
said transaction in accordance with law. It was remanded to
the said Civil Judge as under the new Act the Debt
Adjustment Board was dissolved and its jurisdiction was
vested on the Civil Judge. On April 24, 1950, the 1st
respondent made an application before the Civil Judge for
adding the 2nd appellant as a party respondent and that
petition was allowed on August 21, 1950. On September 29,
1953, the Civil Judge dismissed the petition as not
maintainable; but on appeal the District Judge, Kaira,
allowed the appeal and remanded the matter to the Civil
Judge for disposal according to law. The appellants and the
2nd respondent preferred a revision to the High Court, but
that was summarily rejected. After the remand, the Civil
Judge held that the transaction was not a mortgage and the
appellants had acquired title to the lands by adverse
possession. Against that order the 1st respondent preferred
an appeal to the District Judge, who, by his order dated
October 16, 1958, held that the mortgage subsisted and that
the appellants had not acquired title to the said lands by
adverse possession. In hat view, he remanded the case to
the Civil Judge for adjustment of the debts. On revision
the High Court of Gujarat accepted the finding of the
learned District Judge and dismissed the revision. Hence
the present appeal.
The learned Solicitor-General, appearing for the appellants,
raised before us the following four points: (1) Under the
repealed Act the Board would have jurisdiction to entertain
an application for adjustment of debts, if ’it was filed
within 18 months from the date of the appointment of the
Board under s. 4 of the said Act, i.c., on or before October
31, 1945, and, as no such application was filed either
against the 1st appellant or against the 2nd appellant
before that date, the order of the Board adding the 1st
appellant on December 4, 1945, and the order of the Civil
Judge adding the 2nd appellant on August 21, 1950 were
without jurisdiction and, therefore, void; as the said
orders were without jurisdiction, the appellants had
acquired a vested interest in the property and the new Act
does not affect the said right. (2) The appellant had
acquired a right to the said lands by adverse possession.
(3) The application to the
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Board to investigate the nature of the transaction was not
competent. And (4) The benefit under s. 55(6)(b) of the
Transfer of Property Act is available only to a buyer under
a valid transaction and not to a buyer under a transaction
which is void at the very inception.
At the outset it may be mentioned that the 4th point was
sought to be raised before the High Court for the first time
and the High Court refused to go into that matter. We
cannot, therefore, allow the appellants to raise that point
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before us.
The third point was also not raised before the High Court
and we do not see any justification for allowing the
appellants to press the same before us.
We shall, therefore, confine our judgment to the first two
points raised.
To appreciate the rival contentions of the parties it will
be convenient to read at this stage the relevant provisions
of both the repealed and new Acts.
The Bombay Agricultural Debtors Relief Act,
1939.
Section 17. (1) Within eighteen months from
the date on which a Board is established under
section 4, any debtor may make an application
to the Board for the adjustment of his debts
under this Act as hereinafter provided:
. . . . . .
(3) An application under this section shall
be made to the Board established for any local
area if the debtor or any of the debtors who
is a party to the application ordinarily
resides in such area, or to the Board estab-
lished for the class of debtors, if the debtor
or any of the debtors who is a party to the
application belongs to the said class.
Section 7. (1) Subject to the provisions of
this Act and any rules, the Board shall have
the same powers as are vested in civil courts
under the Code of Civil Procedure, 1908, when
trying a suit and in particular in respect of
the following matters:-
(a) joining any necessary or proper parties.
The Bombay Agricultral Debtors Relief Act, 1947.
Section 4. (1) Any debtor ordinarily residing
in any local area for which a Board was
established under section 4 of the repealed
Act on or after the 1st February 1947, or his
creditor may make an application before the
1st August 1947 to the Court for the
adjustment of his debts.
150
Section 46. Save as otherwise expressly
provided in this Act, the provisions of the
Code of Civil Procedure, 1908, shall apply to
all proceedings under this Chapter.
*Provided that the Court may in a proper case
and on such terms as may appear to it to be
just, exercise its powers to add or strike out
parties under rule 10 of Order 1 of the said
Code in any proceeding pending before it under
section 4 or 24, notwithstanding the fact that
such addition, or striking out of parties is
to be made after the date specified in section
4 or 24, as the case may be, has elapsed.
(*This proviso was added by Bombay Act 37 of
1950, S. 9).
Section 56. (2) The Bombay Agricultural
Debtors Relief Act, 1939, is repealed.
All Boards established under section 4 of the
repealed Act shall be dissolved: Provided
that-
(a)all proceedings pending before any such
Board at the date when this Act comes into
force shall be continued and disposed of by
the Court under this Act as if an application
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under section 4 had been made to the Court in
respect therefor;
(b) all awards made, confirmed or modified
under the repealed Act shall be deemed to have
been made, confirmed or modified under this
Act as if this Act was in force at the date
when the said awards were made, confirmed or
modified, as the case may be;
. . . . .
(c) all appeals pending before any Court
under the repealed Act against the decision,
order or award of such Board shall be
continued and disposed of as if the said
appeals were filed under the provisions of
this Act; and
(d)all appeals which could have been filed
under the repealed Act against any decision,
order or award of such Board but which could
not be filed only by reason of the fact that
the said ’Act was repealed by this Act shall
when filed before a competent court be deemed
to have been filed under the provisions of
this Act and shall be disposed of accordingly.
The impact of the provisions of the new Act on those of the
repealed Act in the context of the present enquiry may be
stated thus: Under the repealed Act an application could be
filed before the appropriate Board for the adjustment of a
debt within the time prescribed under s. 17 thereof. Under
s. 7 thereof the
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Board had the power to join any necessary or proper parties.
The said power was coterminus with that of a civil court
under the Code of Civil Procedure. Order 1, r. 10, of the
Code of Civil Procedure enables the court in a suitable case
to strike out or add parties; and under sub-s. (5) thereof,
subject to the provisions of s. 22 of the Indian Limitation
Act, 1877, the proceedings as against any person added as
defendant shall be deemed to have begun only on the service
of the summons. Under the repealed Act therefore, if a
party was added, the proceedings as against him should be
deemed to have been taken only on the service of summons.
If a party was added subsequent to the period prescribed
under s. 17 of the repealed Act, it could be objected that
the proceedings against the party so added was beyond the
period prescribed under s. 17. But nonetheless if he was
added as a necessary party to a petition filed in time,
though the said order might be improper, it could not be
said that the court acted without jurisdiction. If it was
an illegal order, it could be set aside by an appropriate
order in appeal. Under s. 56(2) of the new Act the 1939 Act
was repealed and all the Boards established under the
repealed Act were dissolved. The three provisos to sub-s.
(2) of s. 56 of the new Act prescribed for the continuity of
the proceedings initiated under the repealed Act. Under the
first proviso, all proceedings pending before any such Board
shall be continued before the court as if an application
under s. 4 of the said Act had been made to the court. This
proviso introduces a fiction; and under that fiction, if an
application filed before the Board under s. 17 of the
repealed Act was pending at the time the new Act came into
force, it shall be continued as if it were an application
filed under s. 4 of the new Act. Under the third proviso,
which deals with pending appeals, appeals pending before any
court under the repealed Act shall be continued and disposed
of as if they were appeals under the new Act. This proviso
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also introduces a fiction, namely, the appeal should be
deemed to be an appeal under the new Act. The expression
"under the Act" means under the provisions of the Act. This
expression emphasizes the fact that pending appeals shall
be deemed to be appeals under the (new) Act and, therefore,
shall be disposed of by applying the provisions thereof.
The fourth proviso deals with appeals to be filed against
the orders under the ’repealed Act; under the said, proviso
those appeals when presented after the new Act came into
force shall be deemed to be appeals from the decision or
orders or awards of courts under the new Act and shall be
disposed of accordingly. In short, the old Act was repealed
and the proceedings, original or appellate, are all deemed
to be proceedings under the new Act and they should be
disposed of in accordance with the substantive and
procedural sections of the new Act. If that be the
interpretation of s. 56 (2) of the new, Act, to such a
proceeding s. 46 is immediately attracted. Under
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s. 46 of the new Act, the court is empowered in a suitable
case to add parties under Order 1, rule 10, of the Code of
Civil Procedure, notwithstanding the fact that the addition
of parties is made after the dates specified in s. 4 or 24,
as the case may be, have expired. By reason of the
aforesaid fiction, a proceeding taken under the repealed Act
is deemed to be a proceeding under the new Act and,
therefore, a party may be added after the prescribed period.
To summarize: After the new Act was passed there are two
types of proceedings, namely, (i) proceedings initiated
under the repealed Act but pending at the time the new Act
came into force; and (ii) proceedings taken under the new
Act. Both the proceedings will have to be disposed of under
the provisions of the new Act, that is to say, both the
substantive and the procedural sections of the new Act would
equally apply to both classes of proceedings.
Some of the decisions cited at the Bar have a direct bearing
on the question raised before us. A division Bench of the
Bombay High Court in Vishwanath Mahadev Adhikari v.
Krishnaji Ramchandra Bodas(1) construed the scope of the
three provisos to s. 56(2) of the new Act. It was contended
before the said Bench that proviso 2 had no retrospective
effect and the appeals which were pending should be disposed
of according to the repealed Act and not according to the
new Act. Chagla, C. J., adverting to that argument.
speaking for the Court, observed thus:
"Further, in our opinion, the language used in
proviso 2 is fairly clear and explicit and
makes this proviso retrospective in its
effect. What the Legislature says is that the
appeals shall be continued and disposed of as
if they were appeals under this Act, which
clearly means that all the provisions of this
Act shall apply to the appeals which are
pending. The appeal Court is asked to treat
the appeals as if the new Act was in force and
not the old Act, and in disposing of those
appeals the appeal Court has to consider the
substantive law as well as the procedural law
brought into force by Act XXVIII (28) of
1947."
Another division Bench of that Court in Hiraman Ratan v.
Purshottam Deorao(2) expressed the same view. Therein it
held that the language of the provisos to s. 56(2) of the
new Act clearly gave retrospective effect to all the
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provisions of the new Act including the substantive
provisions and not merely to the procedural provisions
thereof. In Basavanappa Shivappa V. Neelappa Adiveppa(3),
Gajendragadkar, J., construed s. 46 of the new Act and held
that parties could be added in a proper case without
considerations of delay.
(1) A.T.R. 1949 Bom. 390, 391.
(2) A.I.R. 1953 Bom. 260.
(3) A.I.R. 1956 Bom. 201.
153
The views expressed in these decisions accord with those
expressed by us earlier.
With this legal position in mind, let us look at the facts
of the present case. The application was filed by the 1st
respondent against the 2nd respondent under s. 17 of the
repealed Act before the prescribed time, i.e., October 31,
1945. The 1st appellant was added by the Board itself on
December 4, 1945; and the 2nd appellant was added by the
Civil Judge on August 21, 1950. As the appeal against the
order of the Board was pending at the time the new Act came
into force, under proviso (c) to s. 56(2) of the new Act
that appeal had to be disposed of under the provisions of
the new Act and after remand the application had likewise to
be disposed of under the provisions of the new Act. At that
time the civil Court had ample jurisdiction to add the
appellants as parties irrespective of the time limit
prescribed under the repealed Act. If so, it cannot be said
that the Civil Judge acted without jurisdiction in disposing
of the petition as if it was filed under the new Act. There
are, therefore, no merits in the first contention.
There are no merits in the second contention either. Some
relevant facts may be recapitulated. The father of the 1st
respondent sold the lands to the 2nd respondent on June 9,
1933. The 2nd respondent sold the same to the 1st appellant
on April 7, 1934, and he was put in possession on the same
day. From June 9, 1933 to April 7, 1934 the father of the
1st respondent was in possession. The application for
adjustment of the debt was made on August 3, 1945. From
April 7, 1934 to August 3, 1945 the appellants were in
possession of the disputed lands and the said period of
occupation of the lands by the appellants was less than 12
years. But it was contended that the 1st respondent was in
possession of the lands as a tenant of the 1st appellant
between June 9, 1933 to April 7, 1934 and, therefore, the
said period should be tacked on to the period of adverse
possession by the appellants. But the High Court found,
agreeing with the District Judge, that the appellants failed
to prove that the 1st respondent was in possession of the
lands as a tenant during that period. If so, it follows
that the appellants had not acquired any title to the suit
property by adverse possession.
In the result, the appeal is dismissed with costs.
Appeal dismissed.
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