Full Judgment Text
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PETITIONER:
PATEL BHUDER MAVJI ETC.
Vs.
RESPONDENT:
JAT MAMDAJI KALAJI (DECEASED) THROUGH L. Rs.JAT SAHEB KHAN M
DATE OF JUDGMENT:
13/02/1969
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
HIDAYATULLAH, M. (CJ)
CITATION:
1969 AIR 1196 1969 SCR (3) 690
1969 SCC (2) 139
CITATOR INFO :
R 1971 SC1575 (18)
ACT:
Saurashtra Agricultural Debtors Relief Act Mortgage with
possession--Mortgagor applying for adjustment-Land declared
Khalsa under the Land Reforms Act-Effect of-Saurashtra Land
Reforms Act, (Sau, 25 of 1951)-Land declared Khalsa-Rights
of Mortgagor whether extinguished.
HEADNOTE:
The Respondent-Girasdars in the State of Saurashtra
mortgaged their lands with possession with the appellants,
who paid the land revenue and other dues. By the Saurashtra
Land Reforms Act (25 of 1951), the, rights of the Girasdars
were extinguished, and the tenants of Girasdars became
occupants of land held by them. The Land Reforms Act
provided for the Mamlatdar to allot land to a Girasdar for
personal cultivation. The special Mamlatdar declared the
lands in dispute to be Khalsa and full assessment had to; be
taken, and that there was no need to grant ’any occupancy
rights. The Saurashtra Agricultural Debtors Relief Act,
1954 was enacted scaling down the debts and for providing
for rest-oration of their property, to the debtors.
Thereupon the respondents applied.for adjustment of their
debt to the Court having jurisdiction under the- Debtors
Relief Art. The’ appellants relied on the order of the
Special Mamlatdar declaring the lands as Khalsa and
contended that the lands having been declared as Kholsa, the
respondents had lost their rights therein.
HELD : The rights of the respondents-Girasdars in this case
were not extinguished under the Land Reforms Act and it was
open to the court exercising jurisdiction under the Debtors
Relief Act to scale down the debt and provide the
restoration of the land in possession of the mortgagees to,
the mortgagors on taking fresh account between the parties
and directing. payments by one party to the other.
The Saurashtra Land Reforms Act aimed at regulating the
relationship of persons in position of Landholders and their
tenants, and to enable the tenants to become the real owners
of the soil under direct tenancy from the State. It was not
meant to extinguish or affect the rights of Landholders as
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mortgagors unless the persons in occupation had become
tenants either by contract or by operation of law.
No adjudication of the rights of the debtors and creditors
inter se was done. All that the Special Mamlatdar decided
and had jurisdiction to decide under the Land Reforms Act
was whether the respondents could be given occupancy
certificates or allotted any land Gharkhed and the Special
Mamlatdar merely ordered that the lands being Khalsa full
assessment had to be taken in respect of them and there was
no need to grant occupancy rights. In order to get such
occupancy rights the appellants had to show that they had
become tenants which they could not be under the provisions
of s. 6 of the Land Reforms Act. The fact that they had all
along paid the revenue and other dues to the State, if any,
would not clothe them with tenancy rights. That apart, it
has not been shown that the respondents were awarded any
compensation in respect of the
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Khalsa lands given in mortgage to the appellants. The
occupancy certificates, if any, given by the Special
Mamlatdar to the appellants could not under the provisions
of the Land Reforms Act extinguish the title of the
respondents. [695 H; 696 H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 123 and 124
of 1966.
Appeals by special leave from the judgments and orders dated
April 28, 1965 of the Gujarat High Court in Civil Revision
Applications Nos. 88 and 93 of 1961.
P. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta
Bagga, for the appellants.
P. M. Rawal and P. C. Bhartari, for the respondents.
The Judgment of the Court was delivered by
Mitter, J. These are two appeals by special leave from judg-
ments of the Gujarat High Court dated April 28, 1965 in
Civil Revision Applications No. 88 and 93 of 1961. As the
questions involved in both the applications were the same,
the High Court delivered the main judgment in Civil Revision
Application No. 88/1961 and referred to the same in its
judgment in Civil Revision Application No. 93 of 1961. The
two applications in the High Court arose out of certain
proceedings under the Saurashtra Agricultural Debtors Relief
Act. The applicants before the High Court and the
appellants before this Court were mortgagees in possession
of certain lands belonging to the debtors who are now
represented by the respondents. The main question before
the High Court was and before us is, whether the debtors had
lost all their interest in the lands mortgaged by reason of
the operation of the Saurashtra Land Reforms Act, XXV of
1951 and as such were not competent to make an application
under the Saurashtra Agricultural Debtors Relief Act, 1954.
Hereinafter the two Acts will be referred to as the Land
Reforms Act and the Debtors Relief Act.
It is not necessary to deal separately with the facts in the
two appeals as the course of proceedings in both cases were
similar giving rise to common questions of law. We
therefore propose to take note of the facts in Civil
Revision Application No. 88 of 1961. The creditors,
appellants before us, were in possession of the properties-
the subject matter of litigation, under two mortgage deeds
of Samvat years 1997 and 1999. The first mortgage was for
Rs. 991 and the second for Rs, 1,011 The mortgagees were
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with possession and the mortgagee have been appropriating
the income of the usufruct thereof for the last 50 years.
There is nothing to show whether they were under a liability
under the documents of mortgage to pay the revenue and other
dues to the State but there is no dispute that they have
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been doing so for many years past. The lands were situate
in Bajana State with its own peculiar land tenure system
known as the Girasdari system.
The Land Reforms Act which came into force on July 23, 1951
purported to effect important and far-reaching changes in
the said system. The preamble to the Act shows that its
object was "the improvement of land revenue administration
and for ultimately putting an end to the Girasdari system"
and the regulation of the relationship between the Girasdars
and their tenants, to enable the latter to become occupants
of the land held by them and to provide for the payment of
compensation to the Girasdars for the extinguishment of
their rights. It will be noted at once that the Act aimed
at regulating the relationship of persons in the position of
landholders and their tenants and to enable the tenants to
become the real owners of the soil under direct tenancy from
the State. It was not meant to extinguish or affect the
rights of the landholders as mortgagors unless the persons-
in occupation had become tenants either by contract or by
operation of law.
The Act came into force in the whole of Saurashtra area of
the State of Gujarat. Under S. 2(15) ’Girasdar’ meant any
talukdar, bhagdar, bhayat, cadet or mul-girasia, etc. Under
S. 2(13) ’estate’ meant all land of whatever description
held by a Girasdar including uncultivable waste whether used
for the purpose of agriculture or not and ’Gharkhed’ meant
any land reserved by or allotted to a Girasdar before the
20th May 1950 or for being cultivated personally and in his
personal cultivation. A tenant under S. 2(30) meant an
agriculturist who held land on lease from a Girasdar or a
person claiming through’ him and included a person who was
deemed to be a tenant under the provisions of the Act.
Under S. 3 the provisions of the Act were
to have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in
force. Section 4 Provided that "all land of whatever
description held by Girasdar is and shall continue to be
liable to the payment of land revenue to the State of
Gujarat." Section 5 classified Girasdars according to the
measure of their holding and under cl. (c) thereof a
Girasdar was to belong to class C if the total area of
agricultural land comprised in his estate did not exceed
Act. 120-00 Section 6(1) of the Act laid down that any
person who was lawfully cultivating any land belonging to a
Girasdar was to be deemed for the purposes of the Act to be
the tenant if he was not a member of the Girasdars family or
a servant on wages payable in cash or in kind etc. or a
mortgagee in, possession. The Explanation to the sub-
section however shows that a person who was otherwise,
deemed to be a tenant was not to cease to be such only on
the
693
ground that he was a mortgagee in possession. Under S. 19
it was open to any Girasdar to apply to the Mamlatdar for
the allotment to him of land for personal cultivation within
a certain fixed time. Such application had to be made in a
specified form giving the prescribed particulars. The
applicant had to show inter alia, the area and location of
the land in respect of which the allotment was prayed for,
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the right under which he claimed the land and full
particulars of his estate as also the area of khalsa land,
if any, in his possession. Under S. 20 of the Act it was
for the Mamlatdar to issue notice to the tenant or tenants
concerned on receipt-of an application under S. 19 and make
an enquiry in the prescribed manner after giving the parties
an opportunity of being heard. After such inquiry the
Mamlatdar was required to pass an order making an allotment
to the Girasdar of such land as may be specified in the
order and this was to be followed by the issue of an
occupancy certificate to a Girasdar in respect of his
Gharkhed and the land, if any, allotted to him under the
section. Under sub-S. (4) no Girasdar was to obtain
possession of any land held by a tenant except in accordance
with the order under the section. Section 24 laid down the
total area of the holding which a C class Girasdar could be
allotted for personal cultivation. Sub-s. (2) of the
section provided that a C class Girasdar could not be
allotted any khalsa land if it was held by a tenant.
Chapter V containing sections 31 to 41 provided for
acquisition of occupancy rights by tenants and S. 31 laid
down the consequences which were to issue in the wake of
grant of occupancy certificates. A tenant who was granted
such a certificate was to be free of all relations and
obligations as tenant to the Girasdar. The Girasdar in his
turn was to be entitled to receive and be paid compensation
as provided in the Act. Under S. 36 the right. tide and
interest of the Girasdar in respect of an occupancy holding
were to be deemed to have been extinguished on the payment
by the Government of the last instalment of compensation.
The functions of a Mamlatdar are laid down in S. 46 of the
Act. It was for him to decide inter alia what land should
be allotted to a Girasdar for personal cultivation and to
make such allotment, to decide whether a person was or was
not tenant, to determine whether a tenancy shall be termi-
nated under S. 12 and many other matters. Under s.51. an
appeal lay to the Collector against any order of the
Mamlatdar.
The above analysis of the relevant provisions of the Land
Reforms Act amply demonstrates the manner in which a change
was to be brought about in the relationship between the
Girasdar and his tenants and the rights which they were
respectively to acquire under the orders of the Special
Mamlatdar. The said Officer had no jurisdiction to
terminate any rights under mortgage,
694
The full text of the order of the Mamlatdar on the
application of the Girasdars (the respondents to the appeal)
is not before us. The copy of the order on the respondents’
application marked Ex. 8/1 bearing date 16th January 1954
was handed over to us. It appears therefrom that the
Girasdar was allowed to keep as Gharkhed certain lands by
paying six times the assessment in the treasury but with
regard to S. Nos. 684 arid 685 (the lands given to the
mortgagees) the same were held by the Mamlatdar to be khalsa
and full assessment thereof was ordered to be taken. The
Mamlatdar further noted that there was no need to grant any
occupancy rights.
On May 2, 1955 the respondents applied for adjustment of
their debt to the Civil Judge exercising jurisdiction under
the Debtors Relief Act. The creditors relied on the order
of the Special Mamlatdar declaring the lands as Khalsa as
fortified by the decision of the Bhayati court of Bajana
State. It was contended that the lands having been declared
khalsa the debtors had lost their rights therein. Reliance
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was also placed on Forms 7 and 8 by counsel for the
appellants to show that his clients had acquired proprietary
rights in the said khalsa lands. According to the Civil
Judge the judgment of the Bhayati court had merely decided
that the Bajana State had ’no title or interest in the land
in question and that the Jats Mul-Girasdars were independent
proprietors thereof. The Judge however remarked that it was
not for the Special Mamlatdar to decide any question as to
title and he had merely ordered recovery of full assessment
from the persons in actual possession and this in no way
vested any title in the creditors. In the result the Civil
Judge directed the restoration of the lands to the debtors
subject to certain limitations and conditions.
The creditors went up in appeal to the Assistant Judge,
Surendranagar. There it was contended on their behalf that
the mortgages had been extinguished by the title of the
paramount power and on the date of the application under the
Debtors Relief Act there was no subsisting mortgage between
them and the respondents. Reliance was placed on the
decision of the Special Mamlatdar declaring the land to be
khalsa land as extinguishing the mortgages by forfeiture of
the land to the State. The Assistant Judge dealt with the
question at some length and came to the conclusion that the
mortgages bad not been extinguished and not being tenants
within the meaning of s. 6 the creditors could not have got
an occupancy certificate in respect of the lands in their
possession. He further stressed on the decision of the
Special Mamlatdar to show that only the liability for the
full assessment of the lands was indicated without any
disturbance to the rights inter se. between the mortgagor
and the mortgagees. Dealing, with the question of the
advances made and the amounts
695
still due to the creditors, it was ordered that the debtors
should pay Rs. 1,698/- in twelve yearly instalments and the
award was directed to be modified accordingly.
The matter was then taken up by way of Civil Revision to the
High Court of Gujarat. The High Court arrived at the
following conclusions :-
(a) The decision of the Bhayati court merely
declared that the State was entitled to
recover taxes of various kinds from the lands
in possession of tenants or mortgagees. There
was no decision that the lands in possession
of the mortgagees were confiscated to the
State.
(b) The Special Mamlatdar rejected the
application of the debtors and directed the
lands in possession of the different creditors
to be treated as Government lands as according
to him the decision of the Bhayati court
amounted to a forfeiture of the lands by the
Bajana State.
(c) It was not necessary to test the
correctness of the decision of the Special
Mamlatdar as in view of the provisions in the
Debtors Relief Act which was an Act subsequent
to the Land Reforms Act the provisions of the
latter Act were to prevail.
In the result the High Court affirmed the order of the
Assistant Judge in appeal directing possession to be handed
over to the debtors.
Before us great stress was laid on the decision of the
Special Mamlatdar and it was argued that subject to any
appeal from his order his decision was binding on the
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parties and not having gone up in appeal from the order of
the Special Mamlatdar the debtors could not be allowed to
agitate their rights to the land ignoring the said order.
We have not before us the full text of the order of the
Special Mamlatdar relied on by the appellants nor are we
satisfied from copies of form 7 prescribed under Rule 81 of
the Rules promulgated under the Land Reforms Act that there
was any adjudication of the rights of the debtors and the
creditors inter se. In our view all that the Special
Mamlatdar decided and had jurisdiction to decide under the
Act was, whether the debtors could be given occupancy
certificates or allotted any land Gharkhed and the Special
Mamlatdar merely ordered that the lands being khalsa full
assesment had to ’be, taken in respect of them and there was
no need to grant occupancy rights. In order to get such
occupancy rights the creditors had to show that they had
696
become tenants which Obviously they could not be under the
provisions of S. 6 of the Land Reforms Act. The fact that
they had all along paid the revenue and other dues to the
State, if any, would not clothe them with the right of the
tenants. Under S. 76(c) of the Transfer of Property Act a
mortgagee in possession must, in the absence of a contract
to the contrary out of the income of the property, pay the
Government revenue, all other charges of a public nature and
all rent accruing due in respect thereof during such
possession. We do not know whether there was a contract to
the contrary and whether the mortgagors had covenanted to
pay the rent and the revenue. But even if they could not
meet the revenue and other State dues out of the income and
paid the same out of their own pockets in order to save the
security, the mortgagees were only entitled under s. 72(b)
of the Transfer of Property Act to add the amount to the
mortgage money. They could not by paying such rent or
revenue acquire a title in derogation of the rights of
the mortgagors and the payments, if any, are to be taken
into account when the mortgagors seek to redeem the
property.
That apart, it has not been shown to us that the debtors
were awarded any compensation in respect of the khalsa lands
given in mortgage to the appellants. The occupancy
certificates, if any, given by the Special Mamlatdar to the
appellants cannot under the provisions of the Land Reforms
Act extinguish the title of the mortgagors. Whether the:
mortgagors as C class Girasdars can be allowed to retain
land in excess of the limits specified in the Act and
whether as a result of the restoration of the lands to them
by the award such limit will be exceeded in this case, are
not questions for us to consider. The right of the
mortgagors not being extinguished under any provision of law
to which our attention was drawn, no, fault can be found,
with the award is finally modified by the judgment of the
Assistant Judge and effect must be given thereto. In our
view, it is not necessary to consider the point canvassed at
length before the High Court and dealt with in the judgment
of the said court as to whether the Provisions of the
Debtors Relief Act over-ride those in the Land Reforms Act.
The object of the two Acts are different. The object of the
Land Reforms Act. as already noted, is the improvement of
the land revenue administration and outline an end to the
Girasdari system and granting of occupancy rights to the,
Girasdars and /or their, tenants, whereas the Debtors Relief
Act governs the rights of the debtors and creditors inter se
inter alia by scaling down the debits and providing for
restoration of their Pr to debtors. In our view, the right
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of the debtors in this case were not extinguished under the
Land Reforms Act and it was open to the court exercising
jurisdiction under the Debtors Relief Act to scale down
tile debt and provide for resto-
697
ration of the land in possession of the mortgagees to the
mortgagors on taking fresh accounts between the parties and
directing payments by one party to the other as has been
done in this case.
The appeals therefore fail and are dismissed with costs.
Y.P. Appeal dismissed.
698