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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  He appealed and, pending the appeal, the 1939 Art was repealed by the Bombay Agricultural Debtors  Relief Act of 1947.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 Under  the  repealed Act, if a party was  added  beyond  the period prescribed under S. 17 of the Act, if he was added as a  necessary  party to a petition filed in  time,  the 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  [151 C-D] Under  S.  56  of  the  1947  Act,  original  and  appellate proceedings initiated under the repealed Act but pending  at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]                             147

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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148 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                             149 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                             151 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 L/S5SCI-12 152 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. L/S5SCI-12(a) 154