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
section V Gupte Solicitor General section 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 1023 and 1251 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 2701  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 2521  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 section 17 read with section 18 and section 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 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 section 562 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 section 4 of the said Act ic 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 section 556b 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 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 section 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 aall 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 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 dall 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 section 17 thereof
Under section 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 section
5 thereof subject to the provisions of section 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 section 17 of the repealed Act it could be objected that the proceedings against the party so added was beyond the period prescribed under section 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 section 562 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 section
2 of section 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 section 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 section 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 section 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 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 section 56 2 of the new Act to such a proceeding section 46 is immediately attracted
Under LS5SCI 12 152 section 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 section 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 vs Krishnaji Ramchandra Bodas1 construed the scope of the three provisos to section 562 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 vs Purshottam Deorao2 expressed the same view
Therein it held that the language of the provisos to section 562 of the new Act clearly gave retrospective effect to all the provisions of the new Act including the substantive provisions and not merely to the procedural provisions thereof
In Basavanappa Shivappa V Neelappa Adiveppa3 Gajendragadkar J construed section 46 of the new Act and held that parties could be added in a proper case without considerations of delay
1 ATR  391
2 AIR 1953 Bom
3 AIR 1956 Bom
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 section 17 of the repealed Act before the prescribed time ie 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 section 562 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


Summary:
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 section 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 section 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 section 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 section 56 of the 1947 Act original and appellate proceedings initiated under the repealed Act but pending at 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 section 46 of the 1947 Act the court is empowered
in a suitable case to add Parties under 01 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