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PETITIONER: MOHD.  IDRIS & OTHERS

       Vs.

RESPONDENT: SAT NARAIN

DATE OF JUDGMENT: 10/12/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1499            1966 SCR  (3)  15

ACT: U.P.   Agriculturists’  Relief  Act  (27  of  1934),s.   12- Application  under-Act repealed by U.P. Zamindari  Abolition and  Land  Reforms  Act (1 of  1951)-Pending  proceeding  if affected.

HEADNOTE: The U.P. Zamindari Abolition and Land Reforms Act was passed on  26th January 1951 but the right of the Zamindars  vested in the State only with effect from 1st July 1952.  Also both the  Abolition Act and the U.P. Agriculturists’  Relief  Act 1934 continued on the Statute Book till 12th July 1953.   In May 1952, the respondent, who was the successor  in-interest of the original mortgagor, filed an application under s.  12 of  the  Agriculturists’ Relief Act in the  Munsif’s  Court, alleging  that  the  mortgage had been  paid  off  from  the usufruct of the land and that he was entitled to redeem  it. On 12th July 1953 the Abolition Act was amended by Act 16 of 1953  by which the Agriculturists’ Relief Act was  repealed. By s. 1(2) of the Amending Act, the Amending Act itself  was deemed  to have come into force on 1st July 1952,  that  is, smultaneously with the Abolition Act.  In November 1953, the respondent’s  application  was decreed.  In appeal,  it  was urged on behalf of the appellant, the  successor-in-interest of  the  original  mortgagees that  as  the  Agriculturists’ Relief Act was repealed the application under s. 12 of  that Act was incompetent and that the respondent could not  eject the  appellant except in accordance with the  provisions  of the Abolition Act.  This contention was not accepted by  the appellate court, and a revision application by the appellant to the High Court was also dismissed. In  appeal  to  this  Court, on  the  question  whether  the proceeding before the Munsif was competent, HELD:     ’Me  proceedings were with jurisdiction,  because, they were not affected by the passing of the Abolition  Act, or  the  Amending  Act  of 1953, regard  being  had  to  the provisions  of  s 6 of the U.P. General Clauses Act  in  the first instance. and more so, in view of the provisions of s. 23  of  the Amending Act 18 of 1956, which came  into  force

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before  the  proceedings  between the  parties  had  finally terminated. [23 A-B] There  was nothing in the Abolition Act which took away  the right  in respect of a pending action.  Under  the  Amending Act 16 of 1953, the Agriculturists’ Relief Act was  repealed retrospectively  from  1st  July 1952 only, and  it  is  not possible to give the repeal further retrospectivity so as to affect   a  proceeding  pending  before  that   date.    The jurisdiction of the Assistant Collector under the  Abolition Act was itself created from 1st July 1952. but there was  no Provision  in  the Abolition Act, that  pending  proceedings were  to  stand transferred to the Assistant  Collector  for disposal.  Therefore as a result of s. 6 of the U.P  General Clauses Act, the proceeding could continue before the Munsif since  a different intention does not appear either  in  the Abolition Act or Amending Act 16 of 1953.  Further, s. 23 of Amending Act 18 of 1956, shows that by the conferral of  the jurisdiction upon the Assistant Col- 16 authorities  when the Abolition Act came into force.   Since the  proceeding  was pending before the Appellate  Court  in 1956,  when the 1956 amendment was passed, it  follows  that the  provisions of the Abolition Act could not  be  applied, because the Legislature had in 1956 said expressly in s. 23, what was implicit before, namely, that pending actions would be  governed by the old law as if the new law had  not  been passed. [21 F. H., 22 F. H.]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 962 of 1964. Appeal  by special leave from the judgment and  order  dated October  9,  1961  of  the Allahabad  High  Court  in  Civil Revision No. 1077 of 1957. C.   B. Agarwala, E. C. Agarwala and P. C. Agarwala, for the appellants. S. P. Sinha and M. I. Khowaja, for respondents 2 to 7. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal by special leave  against an  order  passed  by  the Allahabad  High  Court  in  Civil Revision No. 1077 of 1957 dated October 9, 1961 in a suit in which a decree for redemption on an application under S.  12 of the U. P. Agriculturist Relief Act has been passed.   The appellants are the successors-in-interest of one Suleman who was the original mortgagee.  The original respondent in this appeal  Sat  Narain  was the  successor-in-interest  of  one Jantari  who was the original mortgagor.  Subsequently,  Sat Narain sold his interest to others who have been ordered  by us to be joined as respondents under 0. 22 r. 10 of the Code of  Civil  Procedure  on their application  in  this  behalf (C.M.P.  No. 2081 of 1965).  The land in dispute measures  5 bighas  and 3 biswas (Khata No. 2 situate  in  Bhagwatipura, pargana  Kewai, district Allahabad) and consists of 5  plots Nos. 26, 27, 29, 30 and 32.  Jantari had mortgaged the  said land  with Suleman on October 4, 1929 and the mortgage,  now it is admitted, usufructuary in nature.  It is also admitted now that the land was Sir Sankalap of Jantari. On May 27, 1952, Sat Narain filed an application under S. 12 of  the  U.P. Agriculturist Relief Act in the court  of  the Munsif (East) Allahabad on the allegation that the  mortgage had  been paid off from the usufruct of the land and he  was entitled  to  redeem it.  As required by  the  Agriculturist Relief  Act the claim. was made in the prescribed  form  and

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set out the accounts by reason of which it was claimed  that the mortgage was satisfied.  The defendants, who represented Suleman (the mortgagee) 1 7 opposed the application.  Two written statements were  filed on October 4, 1952 and March 31, 1953.  Both the  statements alleged  that  the plaintiff was not  an  agriculturist  and hence the suit was not maintainable under s. 12 of the  U.P. Agriculturist  Relief  Act.   They  also  stated  that   the mortgage was not satisfied from the usufruct as the land was not  productive.  One of the written statements denied  even the  mortgage.   AR  the defendants claimed  that  they  had become Sirdars by reason of the U.P. Zamindari Abolition and Land  Reforms  Act  and that the suit  was  not,  therefore, maintainable.   Although  the Abolition Act  had  come  into force from July 1, 1952 no other claim was set up.  Nor  was the  suit  challenged  as  incompetent  by  reason  of   any provisions of the Abolition Act. The  learned Munsif framed five issues which he  decided  in favour of the plaintiff before him.  He held that there  was a  mortgage as alleged; that the plaintiff and the  original mortgagor  were  agriculturists; and that the  mortgage  had been  satisfied  from the usufruct.  He also held  that  the defendants (mortgagees) had not become Sirdars and the  suit was  maintainable.   In  the result he passed  a  decree  in favour   of  the  plaintiff  on  November  24,  1953.    ’Me defendants appealed to the District Court but by a  judgment dated  April 17, 1957 their appeal was dismissed.   All  the above findings were confirmed by the Civil Judge,  Allahabad who disposed of the appeal.  The main point which was  urged before   the   appellate  Court  was  that   as   the   U.P. Agriculturist  Relief  Act was repealed by an  Act  in  1953 which amended the Abolition Act, the suit under s. 12 of the U.P.  Agriculturist Relief Act was rendered incompetent  and the  plaintiffs could not eject the representatives  of  the mortgagee  except in accordance with the provisions  of  the Abolition  Act.  This contention was not ac. cepted  by  the learned Civil Judge, Allahabad.  An application for revision was then filed in the High Court but it was dismissed by the order  impugned in this appeal as the decree of  the  Munsif had already been executed and possession had been  delivered on May 1, 1957 to the successors-in-interest of the original mortgagor.  Mr. Justice Mithan Lal who decided the revision, held that no interference was called for as the property had gone back to the original owner and substantial justice  had already  been done.  From the last order the present  appeal has been filed by special leave of this Court. The  only question that has been urged before us is  whether the  suit is competent.  The U.P. Agriculturist  Relief  Act was   intended   to  confer  certain   benefits   upon   the agriculturists.  One 18 such  benefit  was  that  an  agriculturist  mortgagor   was afforded  an easy remedy to redeem a mortgage made  by  him. He  could,  under S. 12 of that Act  apply,  notwithstanding anything  in  s. 83 of the Transfer of Property Act  or  any contract  to the contrary, for an order directing  that  the mortgage  be  redeemed,  and, where the  mortgage  was  with possession,  that  the  mortgagor agriculturist  be  put  in possession  of the mortgaged property.  It is clear that  on May  27,  1952  when  the application under  s.  12  of  the Agriculturist  Relief Act was filed the provisions  of  that Act  including S. 12 were available.  The competency of  the proceedings  is challenged because in 1953 in  amending  the U.P.  Zamindari  Abolition and Land Reforms Act,  1950,  the

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Agriculturist  Relief Act was repealed and certain kinds  of suits were to go under S. 339 of the Abolition Act read with Schedule 3 List I before certain Revenue Officers.  Item 13A was  added in that List by S. 67 of the Act XVI of 1953  and it  repealed the U.P. Agriculturist Relief Act.  Schedule  2 List  I  of  the Abolition  Act  conferred  jurisdiction  on Assistant  Collectors  First  Class to  eject  asamis.   The question  which  is raised in this appeal is  whether  after this was done, the suit which was still pending. could  con- tinue  before  the Munsif and on the application  under  the U.P. Agriculturist Relief Act.  In support of their case the appellants  contend  that  the ejectment of an  asami  or  a Sirdar can only be under the provisions of the Abolition Act and  no  other  law.  The appellants claim  to  have  become asamis  by  reason of the provisions of  the  Abolition  Act although  they had claimed in the High Court and the  courts below that they had become Sirdars.  We have, therefore,  to consider  in  this  anneal  what  was  the  status  of   the representatives of the mortgagor on the one hand and of  the mortgagee  on  the  other, and then to  decide  whether  the Munsif  was competent to pass the decree for redemption  and to order the ejectment of the present appellants.  It may be stated  at  once that we declined to hear arguments  on  the other   pleas  of  the  appellants  which  have   now   been concurrently rejected in the first two courts. The  claim  that the appellants became the Sirdars  of  this land  is  abandoned before us because the land was  the  Sir Sankalap of the mortgagor and the provisions of S. 14(2) (a) exclude a mortgagee with Possession from claiming that right in respect of such land.  Section 14(2)(a) reads:               "14.  Estate in possession of a mortgagee with               possession.               (1)               19               (2)   Where any such land was in the  personal               cultivation  of  the  mortgagee  on  the  date               immediately preceding the date of vesting-               (a)  if  it  was  sir  or  khudkasht  of   the               mortgagor  on  the date of the  mortgage,  the               same  shall,  for purposes of section  18,  be               deemed  to  be  the sir or  khudkasht  of  the               mortgagor or his legal representative;               By  reason of this section the land  continued               to  be the Sir or khudkasht of the  mortgagor.               The  learned  Munsif pointed  out  that,  even               though  the representatives of  the  mortgagee               had  obtained a certificate as  Sirdars,  they               could not enjoy that status, in view of s.  14               (2)  (a).   The  appellants now  claim  to  be               asamis  under s. 21 (1 ) (d).  That  provision               runs :               "21.   Non-occupancy tenants,  sub-tenants  of               grove  lands  and  tenants  mortgagees  to  be               asamis.               (1)   Notwithstanding  anything  contained  in               this  Act,  every  person  who,  on  the  date               immediately preceding the date  of  vesting,               occupied or held land as-               (d)   a mortgagee in actual possession from  a               person   belonging  to  any  of  the   classes               mentioned in clauses (b) to (e) of sub-section               (1) of section 18 or clauses (i) to (vii)  and               (ix) of section 19               They claim further that under s. 200 no  asami               can  be  ejected from his  holding  except  as

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             provided in the Abolition Act and refer to  s.               202(c)  where the procedure for the  ejectment               of an asami who belongs to the class mentioned               in cl. (d) of sub-s. (1) of s. 21 is provided.               Section 202(c) reads :               "202.  Procedure of ejectment of asami.               Without prejudice to the provisions of section               338,  an  asami shall be liable  to  ejectment               from his holding on the suit of the Gaon Samaj               or               20               landholder as the case may be on the ground               or grounds.               (c) that he belongs to the class mentioned  in               clause (d) of  sub-section (1) of  section  21               and  the  mortgage has been satisfied  or  the               amount due has been deposited in Court; They  also refer to Schedule II of the Abolition  Act  which lays down  that a suit for ejectment of an asami  must  go before an Assistant Collector (first Class).  They  contend, therefore,  that  the  proceedings before  the  Munsif  were incompetent after July 1, 1952 and no decree could be passed in favour of the representatives of a mortgagor. The Zamindari Abolition Act came into force with effect from July  1, 1952.  It has undergone numerous amendments and  it is  somewhat  difficult to find out at any given  moment  of time what the state of law exactly was, because most of  the amending  Acts are made partly retrospective and partly  not and considerable time is spent in trying to ascertain  which part  of the original Act survives and to what  extent.   We are concerned with a number of sections which have undergone changes again and again and we shall now attempt to  examine what  the  position vis-a-vis the suit  pending  before  the Munsif was, as a result of the enacting of the Abolition Act and its numerous amendments. This  suit was filed on May 27, 1952 when the Abolition  Act was  not  on the statute book.  When the Abolition  Act  was passed it did not repeal the U.P. Agriculturist Relief  Act. Both the Acts, therefore, continued on the statute book till July  12,  1953.  On that date Act XVI of 1953  was  passed. Section  67  of  that Act repealed  the  U.P.  Agriculturist Relief  Act.   While  repealing the Act it  was  not  stated whether the repeal was to operate retrospectively or not but by S. 1 (2) the amending Act itself was deemed to have  come into force from the first day of July, 1952, that is to say, simultaneously  with the Abolition Act.  It may,  therefore, be  assumed that the U.P. Agriculturist Relief Act was  also repealed retrospectively from July 1, 1952.  The 21 question is : whether the right of the plaintiff to continue the suit under the old law was in any way impaired.  Section 6  of the U.P. General Clauses Act lays down the  effect  of repeal and it is stated there as follows :-               6. Effect of repeal.               Where  any  Uttar  Pradesh  Act  repeals   any               enactment  hitherto  made or hereafter  to  be               made,  then,  unless  a  different   intention               appears, the repeal shall not-               (c)   affect any right, privilege,  obligation               or  liability  acquired, accrued  or  incurred               under any enactment so repealed; or               (e)   affect any remedy, or any  investigation               or  legal  proceeding  commenced  before   the               repealing  Act shall have come into  operation               in  respect  of  any  such  right,  privilege,

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             obligation, liability, penalty, forfeiture  or               punishment  as aforesaid; and any such  remedy               may be enforced and any such investigation  or               legal   proceedings  may  be   continued   and               concluded; and any such penalty, forfeiture or               punishment imposed as if the repealing Act had               not been passed.,’ The  question  is whether a different intention  appears  in either  the Abolition Act or the amending Act XVI  of  1953, for  otherwise the old proceeding could continue before  the Munsif.   There is nothing in the Abolition Act which  takes away  the right of suit in respect of a pending action.   If there be any doubt, it is removed when we consider that  the U.P.  Agriculturist Relief Act was repealed  retrospectively from July 1, 1952 only and it is not, therefore, possible to give  the repeal further retrospectively so as to  affect  a suit pending from before that date.  The jurisdiction of the Assistant Collector was itself created from July 1, 1952 and there  is  no provision in the Abolition  Act  that  pending cases  were to stand transferred to the Assistant  Collector for  disposal.   Such  provisions are commonly  found  in  a statute  which takes away the jurisdiction of one court  and confers  it on another.  From these two circumstances it  is to  be  inferred that if there is at all any  expression  of intention, it is to keep s. 6 22 of the General Clauses Act applicable to pending litigation. The doubt, if any be left, is further removed if we consider a  later amending Act, namely, Amending Act XVIII  of  1956. By  that Act Schedule 11, which created the jurisdiction  of the Assistant Collector in suits for ejectment of asamis was replaced  by another Schedule.  The entry relating to  suits for ejectment of asamis, however, remained the same.  But S. 23  of  the amending Act of 1956 created  a  special  saving which reads as follows "23.  Saving.-               (i)   Any amendment made by this Act shall not               affect  the  validity, invalidity,  effect  or               consequence   of  anything  already  done   or               suffered,  or any right, title, obligation  or               liability   already   acquired,   accrued   or               incurred    or   any   jurisdiction    already               exercised,  and any proceeding  instituted  or               commenced before any court or authority  prior               to   the  commencement  of  this  Act   shall,               notwithstanding  any  amendment  herein  made,               continue to be heard and decided by such court               or authority.               (ii)  An  appeal, review or revision from  any               suit  or  proceeding instituted  or  commenced               before  any  court or authority prior  to  the               commencement     of    this     Act     shall,               notwithstanding any amendment herein made, lie               to  the Court or authority to which  it  would               have  laid if instituted or  commenced  before               the said commencement." The  addition  of  this section clearly shows  that  by  the conferral  of the jurisdiction upon the Assistant  Collector it  was  not  intended to upset  litigation  pending  before appropriate  authorities  when the Abolition Act  came  into force.  Section 23 in terms must apply to the present  case, because  if it had remained pending before the  Munsif  till 1956, it is clear, the jurisdiction of the Munsif would  not have  been ousted.  Although it was not pending  before  the Munsif  it was pending before the appellate Court  when  the

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1956 amendment Act was passed.  It follows, therefore,  that to  such a suit the provisions of Schedule 11 read  with  s. 200  of  the  Abolition Act cannot be  applied  because  the Legislature  has  in 1956 said expressly what  was  implicit before,  namely, that pending actions would be  governed  by the  old law as if the new law had not been passed.  In  our judgment, 23 therefore,  the  proceedings  before the  Munsif  were  with jurisdiction  because they were not affected by the  passing of the Abolition Act or the amending Act, 1953, regard being had  to the provisions of s. 6 of the U.P.  General  Clauses Act  in  the  first  instance and more so  in  view  of  the provisions  of s. 23 of the amending Act, 1956  which  came before  the  proceedings  between the  parties  had  finally terminated.   The appeal must, therefore, fail.  It will  be dismissed with costs. Appeal dismissed. 24