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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 691 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 692 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