Appeals Nos 984 and 985 of 1965
Appeals by special leave from the judgment and decree dated April 28 1961 of the Madhya Pradesh High Court in Second Appeals Nos 176 and 177 of 1969
H R Gokhale section T Khirwadkar and I N Shroff for the appellants
R section Dabir O P Malhotra P C Bhartari and J B Dadachanji for the respondent
The Judgment of the Court was delivered by Bhargava J
The appellants brought a suit against the res pondent for possession of a plot Kharsa No 1227 having an area of 5835 acres of Monza Shahpur Tehsil Burhanpur in November 1950 on the ground that they had been unlawfully dispossessed from this land
This land formed part of the property of one Laxmanrao who had two sons Vishwasrao and Krishnarao
Krishnarao had two sons Dinkerrao and Shamrao
Shamrao was adopted by Vishwasrao in the year 1895
The rights in certain village properties including Sir  lands vested in this joint family consisting of Vishwasrao his adopted son Shamrao and 272 his nephew Dinkerrao
The three of them jointly executed two mortgage deeds in that year and in the mortgage deeds mentioned that they were mortgaging the property which was described as Malguzari Mouzas and Sir land of Tehsil Burhanpur District Nimar  and Maufi Government land  situate in certain villages in Pargana Jainabad Tehsil Burhanpur
The mortgages were in favour of the predecessors in title of the appellants
In the year 1928 there was a partition in the joint Hindu family of the mortgagors
By this time Dinkerrao had died leaving two sons Ramchandrarao and Wamanrao
Vishwasrao and Shamrao had also died and Shamrao left an adopted son Shankerrao alias Narayanrao who was the natural son of Dinkerrao but had been adopted by Shamrao
The parties to the partition were therefore Shankerrao the adopted son of Shamrao Ramachandrarao and Wamanrao the sons of Dinkerrao
Shankerrao received 1 share in the property while Ramachandrarao and Wamanrao received 14 share each
In that partition Wamanrao separated from Shankerrao and Ramachandrarao who continued to be joint and with the consent of the mortgagee the mortgage liability was not continued against the share of Wamanrao
The liability under the mortgages was undertaken entirely by Shankerrao and Ramachandrarao
On this partition in the property remaining joint with Shankerrao and Ramachandrarao Shankerrao had 23rd shareand Ramachandrarao had 13rd share because originally before partition Shankerrao was entitled to 12 share and Wamanrao to 1 share
In the year 1939 the proprietary rights of Shankerrao were purchased by one Vinayakrao so that under the law then existing Shankerrao became the ex proprietary occupancy tenant of his share in the Sir  plot No 1227
In 1940 Ramachandrarao was declared insolvent and his share in the proprietary rights which vested in the Insolvency Court was sold and purchased by the mortgagee
The result was that Ramachandrarao also became ex proprietary occupancy tenant of his sir  plot No 1227 so that this plot became a co tenancy of Shankerrao and Ramachandrarao in the capacity of ex proprietary occupancy tenants
Thereafter there was some dispute about the amount and the right of redemption under the mortgage between Shankerrao and the mortgagee and this dispute was referred to an arbitrator Sri Vipat
who gave his award on the basis of which a decree was passed by the Court of Additional District Judge Khandwa
In pursuance of that decree Shankerrao s 23rd share including his rights in the sir  plot No 1227 was purchased by the mortagee
In 1940 Ramachandrarao had died and his ex proprietary occupancy rights in that plot No 1227 had vested in his widow Sitabai the respondent in these appeals
In 1942when she was dispossessed from this plot No 1227 in pursuance of the mortgage 273 decree passed in terms of the award she filed an application to the Revenue Court under sections 12 and 13 of the Central Provinces Tenancy Act 1 of 1920 hereinafter referred to as the Act for restoration of possession of her occupancy rights in this plot No 1227
The Revenue Court allowed her claim and restored her to the possession of this plot
Thereupon the appellants filed the suit claiming possession of this plot as mentioned above
The suit was partially decreed by the trial Court granting to the appellants the right to joint possession with Sitabai on the basis that they had 13rd share in the plot while Sitabai continued to be entitled to the remaining 23rd share
Both parties filed appeals to the Court of the District Judge Khandwa
The lower appellate Court dismissed the appeal of the appellants in respect of the 23rd share in this plot No 1227 and allowed the respondent s appeal in respect of the 13rd share of the same plot with the result that the whole suit of the appellants stood dismissed
The appellants then filed two appeals before the High Court of Madhya Pradesh
The High Court dismissed both the appeals and consequently the appellants have now come up to this Court against that judgment of the High Court in this appeal by special leave
The High Court in its judgment held that the finding of fact recorded by the lower appellate court that the mortgagees in the year 1895 did not get possession over cultivatory rights in this plot was decisive of the claim put forward in this case on behalf of the appellants
The Court was of the view that not having obtained possession over the cultivatory rights the appellants were not entitled to claim actual possession from the mortgagors who had become occupancy tenants of this plot
We consider that this decision arrived at by the High Court is perfectly correct
It is true that the two mortgages of the year 1895 were both usufructuary mortgages and they included mortgage of the sir  land
There was however no express mention in those mortgages that the mortgage was to operate in respect of the cultivatory rights also in this sir  land
The mere mention of the sir  land as part of the property mortgaged can only be interpreted as laying down that the proprietary rights in the sir  land were the subject of the mortgages so that the cultivatory rights continued to remain with the mortgagors
This circumstance is further borne out by the finding of fact recorded that even after the execution of the usufructuary mortgages in 1895 the mortgagors continued to cultivate this land and actual possession over this land for purposes of cultivating it was not obtained by the mort gagee
In these circumstances it is clear that the mortgagors must have become ex proprietary occupancy tenants of this land in the year 1895
274 Learned counsel appearing on behalf of the appellants put before us one provision of the CP and Berar Tenancy Act of 1883 which was then in force to show that the rights of ex proprietary tenant could only accrue if the proprietary rights in sir  land were transferred by sale and not if they were transferred by usufructuary mortgage
The whole of that Act was not placed before us and consequently we have been handicapped in our effort to determine what rights accrued to the mortgagors when the usufructuary mortgages were executed by them but possession over cultivatory rights in the sir  land was retained
In the cir cumstances we considered it advisable to examine the position on the basis of both alternatives
One alternative is that they became ex proprietary occupancy tenants when the usufructuary mortgages were executed
The other alternative is that the rights of ex proprietary tenants did not accrue but they did become tenants of the mortgagees in whom the proprietary rights vested because of the usufructuary mortgages
Even if the mortgagors became ordinary tenants in 1895 it is clear that by the time the Act came into force in the year 1920 they must have become occupancy tenants as defined in section 10 of the Act
Section 10 lays down that Every tenant who is not an absolute occupancy tenant or a sub tenant is an occupancy tenant
 Clearly the mortgagors were not sub tenants nor is it the case of any party that they were absolute occupancy tenants of this plot No 1227
Consequently they must be held to be occupancy tenants of this plot under the Act
Long before the year 1939 therefore the mortgagors must be held to have become occupancy tenants of this land or ex proprietary occupancy tenants of it
The claim of the appellants that they acquired rights to possession of this land on the basis of the mortgages of 1895 in these circumstances must fail
The alternative claim put forward on behalf of the appellants was that under the decree passed on the basis of the award and in the proceedings for insolvency of Ramachandrarao the rights in this land were acquired by the mortgagees through the proceedings taken by the courts
The claim was that the rights of Shankerrao passed to the mortgagees when the mortgagees purchased his rights in execution of the decree in Civil Suit No 12 A of 1942 of the Court of Additional District Judge Khandwa passed on the basis of the award given by Sri Vipat while the remaining 13rd share of Ramachandrarao also passed to them when his rights were transferred by the Insolvency Court
This claim clearly fails in view of the provisions of section 12 or section 49 of the Act as they stood at the relevant time
Section 49 deals with the right of transfer of lands cultivated by an ex proprietary occupancy tenant while section 12 deals with the right of transfer of lands cultivated by an occupancy tenant
We need not go into 275 the question whether the expression occupancy tenant in section 12 does or does not include an ex proprietary occupancy tenant
If it be held that the mortgagees had become ex proprietary occupancy tenants of the land in 1895 as a result of the execution of usufructuary mortgages the provisions of section 49 would apply
As a result of those provisions the rights of the ex proprietary occupancy tenant could not have been transferred in favour of the mortgagees
Section 50 as it was at that time did permit transfer of certain rights of an ex proprietary occupancy tenant but to be valid such transfers required permission of the appropriate revenue authority
In this case there is no suggestion that when transfers were obtained by the mortgagees in pursuance of the decree in Suit No 12 A of 1942 and in pursuance of the insolvency proceedings against Ramachandrarao the transfers purported to be effected were made with the permission of the appropriate authority
Consequently under section 49 those transfers would be void
Taking the case of the second alternative that the mortgagors did not become ex proprietary occupancy tenants in 1895 and were occupancy tenants simpliciter when the Act came into force the transfers in favour of the mortgagees under the decree in Civil Suit No 12 A of 1942 and in the insolvency proceedings would be in contravention of section 12 of the Act
It appears that the revenue authorities in restoring possession to Sitabai on her application purporting to be under section 13 of the Act proceeded on the basis of this second alternative that the rights of the mortgagors were governed by section 12 of the Act
We are unable to hold that in this proceeding the revenue authorities committed any error
Section 12 barred the transfer of the cultivatory rights of an occupancy tenant in execution of the decree of a civil court or in insolvency proceedings
In fact such rights did not vest in the Insolvency Court at all under the Provincial Insolvency Act
Consequently the mortgagees could not acquire title to cultivatory right by virtue of the proceedings taken in execution of the decree in civil suit or in the insolvency proceedings
The right continued to vest in the mortgagors and the respondent who was entitled as the sole survivor to those rights was rightly restored to possession by the revenue authorities
The decision of the revenue authorities was challenged on one other ground viz that the jurisdiction to grant relief under section 13 of the Act is confined to cases where one of the co tenants claims possession on being illegally dispossessed and not in a case where the sole tenant has been dispossessed
It appears to us that this is immaterial because relief from the same revenue authority could be claimed by a sole tenant by an application under section 100 of the Act
The application filed by Sitabai for restoration of possession could therefore be treated as an appli 276 cation under section 100 of the Act in case she was the sole tenant and the grant of relief to her was not without jurisdiction
In these circumstances it is clear that the appellants are not entitled to claim possession in this suit
The appeals fail and are dismissed with costs
One hearing fee
YP Appeals dismissed


Summary:
The predecessors in interest of the respondent executed usufrutory mortgage deeds in 1898 in favour of the predecessors in interest of the appellants in respect of certain sir  land
In 1940 one of the mortgagors R the husband of respondent was declared insolvent and his share in the proprietary rights which vested in the Insolvency Court was purchased by the mortgagee
Some disputes arose about the amount and the right of redemption under the mortgage between the mortgagee and the other mortgagor S the matter was referred to arbitration
In pursuance of the decree in this award the mortgagee purchased the share of S  including his rights in sir 
R died and when his widow the Respondent was dispossessed from the land in pursuance of the mortgage decree passed in terms of the award she filed an application to the Revenue Court under section 12 and section 13 of the Central Provinces Tenancy Act for restoration of possession of her occupancy rights in the land which was allowed
Thereupon the appellants filed the suit claiming possession which was partly allowed
Both the parties appealed and in appeals the suit was dismissed which in further appeals was upheld by the High Court
HELD  The appellants were not entitled to claim possession in this suit
The mere mention of the sir  land as part of the property mortgaged can only be interpreted as laying down that the proprietary rights in the sir  land were subject of the mortgages so the cultivator rights continued to remain with the mortgagors
The circumstance was further borne out by the fact that even after execution of the usufructuary mortgages in 1895 the mortgagors continued to cultivate this land and actual possession over this land for the purposes of cultivating it was not obtained by the mortgagee
In the circumstances it was clear that the mortgagors must have become ex proprietary occupancy tenants of this land in the year 1895
273 G H Even if the mortgagors become ordinary tenants in 1895 it was clear that by the time the Act came into force in the year 1920 they must have become occupancy tenants as defined in section 10 of the Act
So the claim of the appellants that they acquired rights to possession of this land on the basis of the mortgages in 1895 in these circumstances must fail
274 D The appellants  claim that the rights of S passed to them when they purchased his rights in execution of the decree under the award and that the share of R passed to them when his rights were transferred by the insolvency Court fails in view of the provisions of section 12 or section 49 of the 271 Act as they then stood
As a result of these provisions the rights of the ex proprietory occupancy tenant could not have been transferred in favour of the mortgagees
Section 50 as it was at that time did permit transfer of certain rights of an ex proprietory occupancy tenant but to be valid such transfers required permission of the appropriate revenue authority
In this case there is no suggestion that when transfers were obtained by the mortgagees in pursuance of the decree in the award and in pursuance of the insolvency proceedings against R the transfers purported to
be affected were made with the permission of the appropriate authority
Consequently under section 49 those transfers would be void
274 H 275 C Section 12 barred the transfer of cultivatory rights of an occupancy tenant in execution of the decree of a civil court or in insolvency proceedings
In fact such rights did not vest in the Insolvency Court at all under the Provincial Insolvency Act
Consequently the mortgagees could not acquire title to cultivatory right by virtue of the proceedings taken in execution of the decree in civil suit or in the insolvency proceedings
The right continued to vest in the mortgagors and the Respondent who was entitled as the sole survivor to those rights was rightly restored to possession by the revenue authorities
275 E G The challenge to the decision of the revenue authorities on the ground that its jurisdiction to grant relief under section 13 of the Act is confined to cases where one of the covenants claims possession on being illegally dispossessed and not in a case where the sole tenant has been dispossessed was immaterial because relief from the same revenue authority could be claimed by a sole tenant by an application under section 100 of the Act
The application filed by the respondent could therefore be treated as an application under section 100 of the Act in case she was the sole tenant and the grant of relief to her was not without jurisdiction
275 H