Case: Vidya Sagar Vs. Sudesh Kumari &amp; Others

2. Briefly the facts are as follows :2A. The plaintiff (appellant herein) and defendants Nos. 5 and 6 were cosharers in proprietary interest of lands in khata khewat No. 1 of village Nayagaon Chandan Singh Bandobasti pargana Bhabarkota, tehsil Kaldhungi, district Nainital. Defendants Nos. 5 and 6 sold by registered sale deed a certain share of the land in that khata khewat in favour of defendants Nos. 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 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.

Reasoning: We are unable to accept as correct the submission and the ratio of the above decision.7. The position has to be looked from an altogether different stand - point. 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 cosharer of certain intermediarys interest in the land in question along with the vendors, namely, his cosharers. 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 interest 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 cosharer 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 interest 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 till 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 in 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 thedo not see how this decision helps theSection 6 (h) read with Section 73 directs that the mortgagee shall proceed in the manner provided in Section 73, namely, follow the compensation money, and there is no other way possible for him in view of Section 6 (h) with respect to the property 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 Section 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 proprietarydecision 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 intermediarys 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.