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PETITIONER: VIDYA SAGAR

       Vs.

RESPONDENT: SUDESH KUMARI & OTHERS

DATE OF JUDGMENT08/10/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. ALAGIRISWAMI, A. UNTWALIA, N.L.

CITATION:  1975 AIR 2295            1976 SCR  (2) 194  1976 SCC  (1) 115

ACT:      U.P. Zamindari  Abolition and Land Reforms Act, 1950 (1 of 1951),  ss 4 and 6-Pre-emption decree-If executable after the application of Act of land.

HEADNOTE:      The co-sharers  with the  appellant, in the proprietary interest  of   certain  lands,   sold  their  share  to  the respondents. The  appellant filed a suit for preemption, and in pursuance  of the  decree in  his  favour  deposited  the consideration of  the sale  deed in  court. But, before that date, that  is,  from  July  1,  1970,  the  U.P.  Zamindari Abolition and Land Reforms Act. 1950. had come into force in the district where the property was situate. On the question whether the decree was executable. ^      HELD: The  decree was inexecutable in view of ss. 4 and 6 of the Act.      (a) Having  deposited  the  money,  the  appellant  got himself substituted  for the vendees in respect of the share in the  property. But,  since  the  vendees  were  still  in possession after their purchase, the appellant had to obtain possession of  the land  and for  that purpose  had to  take execution proceedings.  The appellants’  right to possession was. thus,  based upon  the decree which was itself based on the fact that he was a co-sharer of the proprietary right in the land.  Since, however,  on and  from July 1, 1970, under ss. 4  and 6  of the  Act, all rights. title and interest in that land  ceased to  exist and  vested in  the  State,  and nothing survived  in favour of the erstwhile proprietors-the appellant  or   the  vendors-the  decree  became  devoid  of substance and  incapable  of  execution.  It  could  not  be contended that  the  decree  was  still  executable  in  the absence of an express provision voiding the decree or taking away the  right under the decree by operation of law. [196B- G]      (b) The decision of this Court in Rana Sheo Ambar Singh v. Allahabad  Bank Ltd.,  [1962] 2  S.C.R. 441 is a complete answer to  the submission of the appellant. In that case. it was  held  that  on  the  application  of  the  Act  to  the mortgagor’s estate, but for s. 6(h) of the Act, the mortgage

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would have  nothing to  proceed against  under his mortgage- decree, and  that under that provision, a special remedy was provided in  favour  of  a  mortgagee  for  proceeding  only against the  compensation money  under s.  73.  Transfer  of Property Act.[198 A-C]      Shivshankar Prasad Shah and Ors. v. Baikunth Nath Singh JUDGMENT:      [The rival  claims with  regard to the rights if any in the land  under s. 18 of the Act. will have to be worked out by the parties in appropriate proceedings.] [198E-F]      Kailash Rai v. Jai Jai Ram and others, A.I.R. 1973 S.C, 893, referred to

&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1537 of 1974.      Appeal by  special leave  from the  judgment and  order dated the 23rd November, 1973 of the Allahabad High Court in Execution Second Appeal No. 2738 of 1971.      L. M. Pant and R. C. Prasad for the Appellant.      L. M. Singhvi and S. K. Dhingra for Respondents 2-4. 194      The Judgment of the Court was delivered by      GOSWAMI,J.  The   short  question   that   arises   for consideration in  this appeal  by special  leave against the judgment of the Allahabad High Court is whether a decree for pre-emption obtained  prior to  the enforcement of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act  No.  1  of  1951)  survives  for  execution  after  the enforcement of  the Act  in the particular area in which the land is situated.      Briefly the facts are as follows:-      The plaintiff (appellant herein) and defendants 5 and 6 were co-sharers  in proprietary  interest of  lands in Khata Khewat No.  1 of  village Noyagoan  Chandan Singh Bandobasti Pargana Bhabarkota,  Tehsil  Kaldhungi,  District  Nainital. Defendants 5  and 6  sold by  registered sale deed a certain share of  the  land  in  that  Khata  Khewat  in  favour  of defendants  1  to  4  (respondents  herein).  The  plaintiff thereupon filed a suit for pre-emption and obtained a decree which was  affirmed by  the High  Court in  second appeal on April  27,   1970.  The   plaintiff   also   deposited   the consideration of  the sale deed in court on August 20, 1969, as ordered.  The Uttar  Pradesh Zamindari Abolition and Land Reforms Act,  1950 (briefly  the Act) was brought into force in the district Nainital where the property is situated with effect from  July  1,  1970.  The  appellant  instituted  an execution proceeding after the enforcement of the Act in the area.  An   objection  was  taken  by  the  judgment-debtors (respondents herein) under section 47, Civil Procedure Code, on various  grounds including  that with  which we  are  now concerned, namely,  that the  decree has become inexecutable in view  of the  provisions of  the Act.  An  objection  was raised under  section 336  of the  Act  which  provides  for extinguishment of  the right  of pre-emption  in the area to which  the   Act  applies.  The  High  Court  repelled  this objection and  we  are  now  not  concerned  with  the  said question in this appeal.      The only submission of the learned counsel appearing on behalf of  the appellant before us is that the High Court is wrong in  holding that the decree is inexecutable in view of section 4 and section 6 of the Act.      As the preamble shows the Act provides for-

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         "the  abolition  of  the  Zamindari  system  which      involves intermediaries  between the tiller of the soil      and the  State in Uttar Pradesh and for the acquisition      of their  rights, title  and interest and to reform the      law  relating  to  land  tenure  consequent  upon  such      abolition and  acquisition and  to make  provision  for      other matters connected therewith".      We may  now read  a few sections which are material for deciding the issue:           "Section  4(1):  As  soon  as  may  be  after  the      commencement of  this Act, the State Government may, by      notification, declare  that,  as  from  a  date  to  be      specified, all  estates situate  in Uttar Pradesh shall      vest in the State and as from the 195      beginning of  the date so specified (hereinafter called      the date  of vesting),  all such  estates  shall  stand      transferred  to   and  vest,   except  as   hereinafter      provided, in the State free from all encumbrances. Section 6:  "Consequences of the vesting of an estate in the State-      When  the   notification  under   section  4  has  been      published  in   the  Gazette,   then,   notwithstanding      anything contained  in any  contract or  document or in      any other  law for  the time being in force and save as      otherwise provided  in the  Act,  the  consequences  as      hereinafter set  forth shall, from the beginning of the      date of  vesting,  ensue  in  the  area  to  which  the      notification relates, namely-      (a)  all  rights,   title  and   interest  of  all  the           intermediaries-           (i)  In every  estate in  such area including land                (cultivable or  barren), grove-land,  forests                whether within or outside village boundaries,                trees (other  than trees  in  village  abadi,                holding or  grove), fisheries,  tanks, ponds,                water-channels,  ferries,   pathways,   abadi                sites, hats,  bazars and  males  [other  than                hats, bazars  and melas  held  upon  land  to                which clauses  (a) to  (c) of sub-section (1)                of section 18 apply], and           (ii) in all  sub-soil in  such  estates  including                rights,  if   any,  in  mines  and  minerals,                whether being worked or not,      shall cease and be vested in the State of Uttar Pradesh      free from all encumbrances".      Section  18:   "Settlement  of   certain   lands   with      intermediaries or cultivators as bhumidhars-           (1)  Subject to the provisions of Sections 10, 15,      16 and 17 all lands-          (a)   in possession of or held or deemed to be held                by an  intermediary as  sir, khudkhasht or an                intermediary’s grove                *        *        *          *          *           on the  date immediately  preceding  the  date  of           vesting shall be deemed to be settled by the State           Government with such intermediary, lessee, tenant,           grantee or  grove-holder, as  the case may be, who           shall, subject  to the  provisions of this Act, be           entitled to take or retain possession as bhumidhar           thereof."      It is  strenuously contended by the learned counsel for the appellant  that a  decree cannot  be  made  inexecutable unless there  is a  provision in  the Act itself that such a decree is no longer valid. He submits that in absence of any

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express  provision  declaring  the  decree  to  be  void  or inexecutable, the  rights under  the decree  cannot be taken away. 196 He draws  our attention  to a  single Bench  decision of the Allahabad High  Court in  Paltu v. Joti Prasad(1) in support of his  submission. We  are unable  to accept as correct the submission and the ratio of the above decision.      The position  has  to  be  looked  from  an  altogether different standpoint. It is true that the appellant obtained the pre-emption  decree prior  to the enforcement of the Act in the  area in question and he duly deposited the requisite money in  court according to law. Having deposited the money it is  true that  the decree-holder  got substituted for the vendee in  respect of  the share  in the  property.  It  is, therefore, clear that on August 20, 1969, when the appellant had deposited the money in court, his name stood substituted in law  in place of the vendees. Since, however, the vendees were  in   possession  after  the  purchase,  it  was  still necessary for  the decree-holder to obtain possession of the land. For  this purpose  he had  to institute  the execution case for  delivery of possession. The appellant in execution sought for possession basing his right under the decree. The decree was  on the  basis that he was a co-sharer of certain intermediary’s interest  in the  land in question along with the vendors,  namely his  co-sharers. Since, however, on and from July  1, 1970, all rights and title in that proprietary land ceased  to exist and vested in the State, the decree to that extent  became devoid  of  substance  inasmuch  as  the proprietary interests  with regard to which alone the decree was passed  had vested  in the State and nothing survived in favour of  the erstwhile  proprietors, the  appellant or the vendors. The appellant could execute the decree for delivery of possession  only on the basis that he had the proprietary right in  the land  on the  basis of  which, as  a co-sharer therein, he  had obtained  the decree  of pre-emption.  Now, since there  is vesting  of the  property under  the Act and emergence of  a new  species of property, which was not even the subject-matter of the decree, the present decree becomes incapable of  execution. The intermediary and for the matter of that the decree-holder lost the property as known earlier to law  with a  bundle of  proprietary rights.  There was  a vacuum on  cessation of  the proprietary  interests  of  the zamindars and  all intermediaries  and the  entire land then vested in  the State.  There is,  therefore, no substance in the contention  that this  decree  is  still  executable  in absence of an express provision voiding the decree or taking away the  rights under  the decree  by operation of law. The old property  became extinct  and the  proprietors including the appellant  had nothing  left with them after the vesting the State  and necessarily,  therefore, the decree cannot be executed for  that reason.  It would  have been  possible to execute the decree only if the interests in the land as such survived in  the proprietors.  Land can  be understood  only with reference  to the  rights in  the land and when the old rights give  place to  the emergence of new rights, a decree with reference  to the  old rights  cannot be  executed when that has already lapsed under the Act.      In this  connection we  may refer to a decision of this Court in  Rana Sheo  Ambar Singh  v.  Allahabad  Bank  Ltd., Allahabad(2) which 197 was also  relied upon  by the learned counsel with reference to section  6(h) of the Act. We do not see how this decision helps  the   appellant.  This   was  a  case  in  which  the

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appellant’s father,  a Talukdar  of the Estate of Khajurgaon executed a  simple mortgage  of his  proprietary interest in the  estate   consisting  of  sixty-seven  villages  to  the Allahabad  Bank   Ltd.  While   execution  proceedings  were pending, the  U.P. Zamindari Abolition and Land Reforms Act, 1950, came  into force  from July  1952. As  a  result,  the Zamindari  rights  of  the  appellant  judgment-debtor  were abolished and it was no longer possible for the Bank to sell these rights  in the  67 villages.  The Bank  applied to the executing  court   preying  for   sale  of  the  substituted bhumidhari rights which the zamindar acquired under the Act. Repelling the contention this Court held as follows :-           "All lands  therefore whether cultivable or barren      or grove  lands vested in the State on the notification      under s.  4 having been made save as otherwise provided      in this  Act. Therefore,  proprietary rights in sir and      Khudkasht land  and grove  land would vest in the State      on the coming into force of the notification under s. 4      unless there  was some  provision otherwise in the Act.      The contention of the respondent therefore that sir and      khudkashat land  and grove had continued to be property      of the  appellant and  would therefore remain liable to      be sold  in execution proceedings would fail in view of      the notification under s. 4 unless of course there is a      provision otherwise in the Act." The Court further held that-           "the proprietary  right in sir and khudkashat land      and  grove   land  which   were  mortgaged   would   be      extinguished and  the bhumidhari right which is created      by s.  18 would be a new right altogether and would not      therefore  be  considered  to  be  included  under  the      mortgage in this case".      The  learned   counsel  very   much  relied   upon  the discussion in  the decision  with reference to section 6 (h) of the Act which provides that-           "no claim  or liability  enforceable  or  incurred      before  the   date  of   vesting  by  or  against  such      intermediary for  any money,  which is charged on or is      secured by  a mortgage  of such  estate or part thereof      shall, except as provided in section 73 of the Transfer      of Property  Act,  1882,  be  enforceable  against  his      interest in the estate." Dealing with the question this Court observed as follows:-           "Therefore, s.6(h)  read with  s. 73  directs that      the mortgagee  shall proceed  in the manner provided in      s. 73, namely, follow the compensation money, and there      is no other way possible for him in view of s.6(h) with      respect to the pro- 198      perty which  has been  acquired under  the Act. We have      held that  sir and  khudkasht land  and grove land have      been acquired  under the  Act and  have vested  in  the      State; therefore  the mortgagee is relegated to enforce      his rights against the mortgagor in the manner provided      in s.  73 of  the Transfer  of Property  Act and  in no      other way." But for the provision under section 6(h) the mortgagee would have had nothing to follow upon under the mortgage decree as the  proprietary  interests  in  the  land  yielded  to  new bhumidhari rights under the Act, and the mortgage decree had reference only to the earlier proprietary rights.      This decision is a complete answer to the submission of the learned  counsel. The  above  case  of  this  Court  was followed in Shivashankar Prasad Shah & Ors. v. Baikunth Nath Singh & Ors.(1)

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    The learned  counsel, however,  drew our attention to a decision of  this Court  in Kailash  Rai v.  Jai Jai Ram and others(2) where  this Court  had to deal with the expression ’possession’ under  section 18(1) (a) of the Act. This Court held that-           "the expression ’possession’ in clause (a), in our      opinion, takes  is not only actual physical possession,      but also  constructive possession  that a person has in      law." This decision  was cited  by the learned counsel in order to get some  assistance from  section 18  of the  Act. We  are, however, not  required to deal with the nature of rights, if any, which  section 18,  may confer  upon the appellant with regard to the land comprised in the erstwhile intermediary’s interest which  may be available to the vendees. These rival claims with regard to the rights in the land conferred under section 18  of the  Act will  have to  be worked  out by the parties, if  they are so advised, in appropriate proceedings and we express no opinion on that aspect of the case in this appeal.      We are,  therefore, clearly  of opinion that the decree for pre-emption  in this  case was not capable of execution. In the result the appeal fails and is dismissed, but we will make no order as to costs. V.P.S.                                     Appeal dismissed. 199