1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.298 OF 1989 1 Kashim Rajebhai Shaikh 2 Nuroddin Kasimsaheb Shaikh 3 Daud Khasimsaheb Shaikh 4 Mansur Khasimsaheb Shaikh 5 Rajebhai Khasimsaheb Shaikh 6 Iqubal Khasimsaheb Shaikh 7 Razak Khasimsaheb Shaikh ...Appellants. v. Jainoddin Babu Jamdar ...Respondent. Mr. M.R.Katikar, adv. For the Appellants. None for the Respondent. CORAM : J.H. BHATIA, J. DATED : 15th September , 2009 ORAL JUDGMENT: 1 The learned counsel for the Appellants informs that the appellant nos.1 and 2 had expired pending the appeal. However, the appellant nos.3 to 7 are their legal representatives and, therefore, appeal may proceed. 2 The appeal is filed by the original plaintiffs. They had filed Civil Suit No.4 of 1983 under Section 10A of the Dekkhan Agriculturists’ Relief Act, 1879 for accounts. According to them, suit land gat no.51 situated at Mathanhalli, Taluka: Akkalkot, District: 2 Solapur was owned by them. Plaintiff Nos.2 to 7 are the sons of the plaintiff no.1. According to them, in 1968, they had taken loan of Rs. 7,000/- from the defendant/respondent. The defendant demanded interest at the rate of 12% p.a. on the amount of loan. The plaintiffs executed sale deed on 2nd July, 1968 in favour of the defendant in respect of suit land as security of loan. According to them, though the document was termed and styled as sale deed infact, it was transaction of Usufructuary mortgage. According to them, the defendant was to apply the income of the land first towards the interest and then towards the principal amount and on the satisfaction of the loan amount, land was to be returned to the plaintiffs. Accordingly, they sought a decree directing defendant to submit account of the income as well as to deliver the possession of the suit land to the plaintiffs. 3 Defendant contested the suit. According to him, it was out and out sale and not mortgage transaction. It was further contended that the Dekkhan Agriculturists’ Relief Act, 1879 was repealed by The Bombay Agricultural Debtors Relief Act, 1947 and, therefore, provisions of the Dekkhan Agriculturists’ Relief Act, 1879 could not be applicable to the transaction in this suit. Therefore, suit under Section 10A of that Act is not tenable under the law. 3 4 Trial Court framed preliminary issue and after hearing the parties held that suit is not maintenable in view of the repeal of Dekkhan Agriculturists’ Relief Act, 1879 . Suit came to be dismissed. Plaintiffs preferred regular civil appeal no.135 of 1985. That appeal was also dismissed by the learned IVth Additional District Judge, Solapur. Hence, the Second Appeal. 5 The Second Appeal was admitted by the order dated 31.7.1989 observing that substantial question of law is mentioned in ground no.7 which reads as follows: “(7) The Appellants respectfully submit that Akkalkot taluka is brought under the Dekkhan Agriculturists’ Relief Act, 1879 and according to the provision of the Section 10(A) of the said act suit transaction is covered by the provision of the said act.” 6 Heard the learned counsel for the plaintiffs/appellants. None appears for the respondent. It appears that when the Dekkhan Agriculturists’ Relief Act, 1879 was enacted by the British Government in India, Akkalkot Taluka was part of princely state and was not under the British Government, therefore, the Act was not applicable to Akkalkot Taluka. See also observation of this Court in First Appeal No. 655 of 1971 in Shri Basavanappa Kilje vs. Shri Tippannappa Shivalingappa decided on 11.8.1976 (Coram:Vaidya, J.). In view of the 4 Bombay Merged Area (Amendment of Law) Act, 1949 and the Bombay Merged State Laws, 1958, provisions of section 56 of the Bombay Agricultural Debtors Relief Act, 1947 were made applicable to Akkalkot State. Section 56(1) of the Bombay Agricultural Debtors Relief Act, 1947 reads as follows: “56(1) Notwithstanding the repeal of the Dekkhan Agriculturists’ Relief Act, 1879, by the Bombay Agricultural Debtors Relief Act, 1939, the first mentioned Act shall, in so far as it applies to transactions and proceedings to which this Act does not apply, be deemed to have been re-enacted with effect from the date of the coming into operation of this Act (hereinafter in this Section referred to as the said date) and shall continue in force for a period of three years from the said date: From the language of the Section, it is clear that notwithstanding the repeal of the Dekkhan Agriculturists’ Relief Act, 1879 by The Bombay Agricultural Debtors Relief Act, 1939, the provisions of Dekkhan Agriculturists’ Relief Act, 1879 in so far as they apply to the transactions and proceeding to which the Bombay Agricultural Debtors Relief Act, 1947 does not apply, shall be deemed to have been re-enacted with effect from the coming into operation of the Bombay Agricultural Debtors Relief Act, 1947 for a period of three years. Because the Bombay Agricultural Debtors Relief Act, 1947 was made applicable to Akkalkot 5 State by virtue of Bombay Merged Area (Amendment of Laws) Act, 1949, provisions of the Dekkhan Agriculturists’ Relief Act, 1879 would become applicable to Akkalkot State. However, application of certain provisions of Dekkhan Agriculturists’ Relief Act, 1879 were re-enacted and were to continue for a period of three years only as per section 56. Naturally the said provisions would come to an end after expiry of said three years. The Bombay Agricultural Debtors Relief Act, 1947 came into force on 27th May, 1947 and, therefore, in view of the language of Section 56 of the said Act, provisions of Dekkhan Agriculturists’ Relief Act, 1879 would be applicable only upto 26th May, 1950 and after expiry of that period, i.e. from 27.5.1950 said provision would come to an end and would not be applicable. 7 In the present case, transaction had taken place on 2.2.1968 and sale deed was executed by the plaintiff/appellant no.1 in favour of the respondent. At that time the Dekkhan Agriculturists’ Relief Act, 1879 was not in force. There is no provision in the Bombay Agricultural Debtors Relief Act, 1947 similar to provision under Section 10A of the Dekkhan Agriculturists’ Relief Act, 1879 under which a suit could be filed for accounts and possession. I am supported by the view taken by this Court in Appeal No.435 of 1979 Gulab Abdul Nadaf vs. Krishna 6 Vyankat Jamadar and Ors. decided on 16th June, 1982 (Coram: Jahagirdar, J.). In that case this Court had to deal with the similar transaction, which had taken place on 26th June, 1971 in Akkalkot Taluka. In view of the provisions of Section 56 quoted above, it was held that the Act of 1879 came to end on 27th May, 1950 and, therefore, suit under Section 10A would not be tenable. 8 In view of the legal provisions discussed above, I find that Courts below were right in holding that as the provisions of the Dekkhan Agriculturists’ Relief Act, 1879 are not applicable to the facts of the present case, suit under Section 10A of that Act would not be tenable. 9 Therefore, appeal stands dismissed. (J.H. BHATIA,J.)