PATEL BHUDER MAVJl ETC. v.

JAT MAMDAH KALAH (DECEASED) THROUGH L. Rs.

JAT SAHEB KHAN MAMDAn ETC.

February 13, 1969

[M. HIDAYATULLAH, C.J. AND G. K. MITTER, JJ.]

Saurashtra Agricultural Debtors Relief Act Mortgage with possessionr- Morlgagor applying for adjustment..:_Land declared Khalsa under the Land Reforms Act-Effect of-Saurashtra Land Reforms Act, (Sau, 25 ol 1951)-Land declared Khalsa-Rights of Mortgagor whether extinguished.

The Respondent-Girasdars in the State of. Saurashtra mortgaged their lands with possession with the appellants, who paid the land revenue and other dues.

By the Saurashtra Land Reforms Act (25 of 1951), the rights of the Girasdars were extinguished, and the tenants of Girasdara became occupants di land held by them. The Land Reforms Act provided for the Mamlatdar to allot land to a Girasdar for personal cultivation .. The special Mamlatdar declared the lands in dispute to be Khalsa and full assessment had to be taken, and that there was no need to grant any occupancy rights. The Saurashtra Agricultural Debtors Relief Act, 1954 was enacted scaling down the debts and for providing for restoration of their property to the debtors. Thereupon the respondents applied for adjustment of their debt to the Court having jurisdictioo under the Debtors Relie't Act. appellants relied on the order of the Special Mamlatdar declaring the land• as Khalsa and contended that the lands having been declared as JChalro, the respondents had lost their rights therein.

HELD : The rights of the respoodents-Girasdars in this case were not extinguished under the Land Reforms .Act and it was open to the court exercising jurisdiction under the Debtors Relief Act to scale down the debt and provide the restoration of the land iit possession of the mortgagees to the mortgagors on taking fresh account between the parties and directing payments by one party to the other. .

The Saurashtra Land Reforms Act aimed at regulating the relationship O'f persons in pos.itioo of Landholders and their tenants, and to enable the tenants to become the real owners of the soil under direct tenancy from the State. It wa, not meant to extinguish or affect the rights of Landholders as mortgagors unless the persons in occupation had become tenants either by contract or by operation -0f law.

No adjudication Of the rights of the debton and creditors inter se was G done.

All that the Special Mamlatdar decided and had iuriSdicti<>n to decide under the Land Reforms Act was whether the respondents could be given occupancy certificates or allotted any land Gharkhed and the Special Mamlatdar merely ordered that the lands being Khalsa full assessment had to be taken in respect of them and there was no need to grant occupancy rights. In order to get such occupancy rights the appellants bad to show that they had become tenants which they could not be under H the provisions of s. 6 of the Land Reforms Act. The fact that they had all along paid the revenue and other dues to the State, if any, would .not clothe them with tenancy rights. That apart, it has not been shown

that the respondents were awarded any compensation ill respect of the

Khalsa lands given in mortgage to the appellants. The occupancy certifl.. cates if any, given by the Special Mamlatdar to the appellants could nol unde; the provisions of the Land Reforms Act extingui•h the title of tho respondents. [695 H; 696 HJ CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 123 and 124 of 1966.

Appeals by special leave from the judgments and orders dated April 28, 1965 of the Gujarat High Court in Civil Revision Applications Nos. 88 and 93 of 1961.

P. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta Bagga, for the appellants. c P. M. Rawal and P. C. Bhartari, for the respondents.

The Judgment of the Court was delivered by Mitter, J. These are two appeals by , special leave from judgments of the Gujarat High Court dated April 28, 1965 in Civil Revision Applications No. 88 and 93 of 1961. As the questions involved in both the applications were the same, the High Court delivered the main judgment in Civil Revision Application No. 88/1961 and referred to the same in its judgment in Civil Revision Application No. 93 of 1961. The two applications in the High Court arose out of certain proceedings under the Saurashtra Agricultural Debtors Relief Aet.

The applicants before the High Court and the appellants before this Court were E mortgagees in possession of certain lands belonging to the debtors who are now represented by the respondents. The main question before the High Court was and before us is, whether the debtors had Io.st all their interest in the lands mortgaged by reason of the operatmn of the Saurashtra Land Reforms Act, XXV of 1951 and

as such were not competent to make an application under the Saurashtra Agricultural Debtors Relief Act, 1954. Hereinafter the two Acts will be referred to as the Land Reforms Act the Debtors Relief Act.

It is not necessary to deal separately with the facts in the two appeals as the course of proceedings in both cases were similar giving rise to common questions of law.

We .therefore propose to take note of the facts in Civil Revision Application No. 88 of 1961. The creditors, appellants before us, were in possesion of the properties-the subject matter of litigation, under two mortgage deeds of Samvat years 1997 and 1999. The first mortgage was for Rs. 991 and the second for Rs. 1. 011 The mortgagees were with possession and the mortgagee have been appropriating the income of the usufruct thereof for the last

50. years. There is nothing to show whether they were under a liibnity under the documents of mortgage to pay the revenue and other dues to the State but there is no dispute that they havo

been doing so for many years past.

The lands were situate in Bajana State with its own peculiar land tenure system known as the Girasdari system.

The Land Reforms Act which came into force on July 23, 1951 purported to effect important and far-reaching changes in the said system. The preamble to the Act shows that its object was "the improvement of land revenue administration and for

ultimately putting an end to the Girasdari system" and the regulation of the relationship between the Girasdars and their tenants, to enable the latter to become occupants of the !and held by them and to provide for the payment of compensation to the Girasdars for the extinguishment of their rights.

It will be noted at once that the Act aimed at regulating the relationship of persons in the position of landholders and their tenants and to enable the tenants to become the real owners of the soil under direct tenancy from the State. It was not meant to extinguish or affect the rights of the landholders as mortgagors unless the persons in occupation had become tenants either by contract or by operation of law.

The Act came into force in the whole Of Saurashtra area of the State of Gujarat. Under s. 2 ( 15) 'Girasdar' meant any

ta!ukdar, bhagdar, bhayat, cadet or. mu!-girasia, etc.

Under s. 2 ( 13) 'estate' meant all land of whatever description held by a Girasdar including uncultivable waste whether used for the purpose of agriculture or not and 'Gharkhed' meant any land reserved by or allotted to a Girasdar before the 20th May 1950 or for being cultivated personally and in his personal cultivation.

A tenant under s. 2(30) meant an agriculturist who held land on lease from a Girasdar or a person claiming through him and included a person who was deemed to be a tenant under the provisions of the Act. Under s. 3 the provisions of the Act were

to have effect notwithstanding anything inconsistent therewith contained in any, other law for the time being in forte. Section 4 provided that "all land of whatever description held by Girasdar is and shall continue to be liable to the payment of land revenue to the State of Gujarat." Section .5 classified Girasdars according to the measure of their holding and under cl. ( c) thereof a Girasdar was to belong to class C if the total area of agricultural land comprised in his estate did not exceed Act. 120-00. Section 6(1) of the Act laid down that any persOl!l who was lawfuUv cultivating any , Jand belonging to a Girasdar was to be deemed for the purposes of the Act to be the t.enant if be was not a member of the Girasdar's family or a servant on wages pavable in cash or in kind etc. or a mortgagee in poS$ession.

The Explanation to the sub-section however shows that a person who was otherwise deemed to be a tenant was not to cease tp be such only on the

MAVJI V. MAMOAJI (Miller, J.) 693

ground that he was a mortgagee in possession. Under s. 19 it was open to any Girasdar to apply to the Mamlatdar for the allotment to him of land for personal cultivation within a certain fixed time. Such application had to be made in a specified form giving the prescribed particulars.

The applicant had to sh?w inter alia, the area and location of the land in respect of which B the allotment was prayed for, the right under which he claimed

the land and full particulars of his estate as also the area of khalsa land, if any, in his possessibn. Under s. 20 of the Act it was for the Mamlatdar to issue notice to the tenant or t.enants concerned on receipt of an application under s. 19 and make an enquiry in the prescribed manner after giving the parties an opportunity of being heard. After such inquiry the Mamlatdar was required to pass an order making an allotment to the Girasc

dar of such land as may be specified in the order and this was to be followed by the issue of an occupancy certificate to a Girasdar in respect of his Gharkhed and the land, if any, allotted to him under the section. Under sub-s. ( 4) no Girasdar was to obtain possession of any land held by a tenant except in accordance with the order under the section. Section 24 laid down the total area of the holding which a C class Girasdar could be allotted for personal cultivation.

Sub-s. (2) of the section provided that a C class Girasdar could not be allotted any khalsa land if it was held by a tenant. Chapter V containing sections 31 to 41 provided for acquisition of occupancy rights by tenants and s. 31 laid down the consequences which were to issue in the wake of grant of occupancy certificates. A tenant who was J!Ianted such a certificate was to be free of all relations and obligations as tenant to the Girasdar. The Girasdar in his tum was to be entitled to receive and be paid compensation as provided in the Act. Under s. 36 the riimt. title and interest of the Girasdar in respect of an occupancy holding were to be deemed to have been extinguished on the payment bv the Government of the last im; talment of compensation. The functions of a Mamlatdar are laid down in s. 46 of the Act. It was for him to decide inter Q/ia what land should be allotted to a Girasdar for person~ cultivation and to make such allotment, to decide whether a nerson was or was not tenant, to determine whether a tenancv shall be terminated under s. 12 and many other matters. Under s. 51 an appeal lay to the Collector against any order of the Mamlatclar.

The above analysis of the relevant provisions of the Land Reforms Act amply demonstrates the manner in which a change was to be brought about in the relationship between the Girasda1 and is tenants and the ri2hts which thev were respectively tc acomre under ihe orders of the Soecial Mamlatdar. The said Officer had no jurisdiction to terminate any rights under mort !!age.

694 SUPRiMI! COURT REPORTS

[1969] 3 S.C.R.

The full text of the order of the Mamlatdar on the application of the Girasdars (the respondents to the appeal) is not before us.

The copy of the order on the respondents' application marked Ex. 8/1 bearing date 16th January 1954 was handed over to us.

It appears therefrom Lhat the Girasdar was allowed to keep as Gharkhed certain lands by paying six times the assessment in the treasury but with regard to S._Nos. 684 and 685 (the lands given to the mortgagees) the same were held by the Mamlatdar to be khalsa and full assessment thereof was ordered to be taken. The Mamlatdar .further noted that there was no need to grant any occupancy rights.

On May 2, 1955 the respondents applied for adjustment of their debt to the Civil Judge exercising jurisdiction under the Debtors Relief Act.

The creditors relied on the order of the Special Mamlatdar declaring the lands as Khalia as fortified by the decision of the Bhayati court of Bajana State. It was contended that the lands having been declared khalsa the debtors had lost their righB therein. Reliance was also placed on Forms 7 and 8 by counsel for the appellants to show that his clients had acquired proprietary rights in the said khalsa lands.

According to the Civil Judg~ the judgment of the Bhayati court had merely decided that the Bai!Ula State had no title or interest in the land in question and that the Jats Mul-Girasdars were independent proprietors thereof.

The Judge however remarked that it was not for the Special Mamlatdar to decide any question as to title and he had merely ordered recovery of full assessment from the persons in actual oossession and this in no way vested any title in the creditors. In the result the Civil Judge directed the restoration of the lands to the debtors subject to certain limitations and conditions.

The creditors went up in appeal to the Assistant Judge, Surendranagar. There it was contended on their behalf that the mortgages had been extinP, Uished by the title of the paramount power and on the date of the application under the Debtors Relief Act there was no subsisting mortgage between them . and the

reoondents. Reliance was !'laced on the dedsion of the Soedal Mamlatdar declaring the land to be khalsa land as extinguishing the mortgages by forfeiture of the land to the State. The Assistant Judge dealt with the question at some length and came to the conclusion that the mortgages had not been extinl!'Uished and not being tenants within the meanin!! of s. 6 the creditors could not have got an occupancv certificat~- in resoect of the lands in their possession. He further stressed on the decision of the Special Mamlatdar to show that only the liability for the full assessment of the lands was indicated without anv disturbance to the rights inter se between the mortgagor and the mortgagee.~.

Dealing with the question of the advances made and the amounts

still due to the creditors, it was ordered that the debtors should pay Rs. 1,698/- in twelve yearly instalments and the award was directed to be modified accordingly.

The matter was then taken up by way of Civil Revision to the High Court of Gujarat. The High Court arrived at the following conclusions :-

(a) The decision of the Bhavati court merely declared that the State was entitled to recover taxes of various kinds from the lands in possession of tenants or mortgagees.

There was no decision that the lands in possession of the mortgagees were confiscated to the State.

(b) The Soecial Mamlat<lar reiected the application of the -debtors and directe<l the lands in possession of the different creditors to be treated as Government lands as according to him the decision of the Bhayati court amounted to a forfeiture of th~ lands by the Bajana State.

(c) It was not necessry to test the correctness of the decision of the Sll-~~; nl Mam1atdar as in view of the provisions in the Debtors Relief Act which was an Act subsequent to the Land Reforms Act the provisions of the latter Act were to prevail.

In the result the High Court affirmed the order of the Assistant Judge in appeal directing possession to be handed over to the debtors.

Before us great stress was laid on the decision of the Special Mamlatdar and it was argi.Jed that sub_iect to anv appeal from his order his decision was binding on the parties and not havin~ v; one up in appeal from the order of the Spe6al Mamlatdar the debtors could not be allowed to agitate their rights to the land ignoring the said order. We have not before us the full text of the order of the Special Mamlatdar relied on by th" anoellants nor are we satisfied from copies of form 7 orescribed under Rule 81 of the Rules oromul_gated under the Land Reforms Act that there was any adjudication of the rights of the dehton; and the crediton: inter se. In our view all that the Special Mamlatdar decided and had jurisdiction to decide under the Act wa~, whether the debtors could be given occupancy certificates or allotted anv land Gharkhed and the Snecial Mamlatdar merely ordered that the lands being kha/sa full assesment had to be taken in respect of them and there was no need to grant occupancv rights. In order to get such occupancy rights the creditors had to show that they had

become tenants which obviously they could not be under the provisions of s. 6 of the land Reforms Act. The fact that they had all along paid the revenue and other dues to the State, if any, would not clothe them with the right of the tenants. Under s. 76(c) of the Transfer of Property Act a mortgagee in possession must, in the absence of a contract to the contrary out of the income of the property, pay the Government revenue, all other charges of a public nature and all rent accruing due in respect thereof durine: such possession. We do not know whether there was a contract to the contrary and whether the mortgagors had covenanted to pay the rent and the revenue.

But even if they could not meet the revenue and other State dues out of the income and paid the same out of their own pockets in order to save the security, the mortgagees were only entitled under s. 72(b) of the Transfer of Property Act to add the amount to the mortgage money. They could not by paying such rent or revenue acquire a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors seek to redeem the property.

That apart, it has not been shown to us that the debtors were awarded any compensation in respect of the khalsa lands given in' mortgage to the appellants. The occupancy certificate;, if any, given by the Special Mamlatdar to the appellants cannot under the provisions of the Land Reforms Act extinguish the title of the mortgagors. Whether the mortgagors as C class Girasdars can be allowed to retain land in excess of the limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded in this case, are not questions for us to consider.

The right of the mortgae:ors not bein[t extinguished under any provision of law to which our attention was drawn. no fault can be found with the award as finally modified by the judgment of the Assistant Jud!!:e and effect must be given thereto.

In our view, it is not

necesarv to consider the noint canvassed at length before the High Court and dealt with in th~ iudwnent of the said court as to whether the provi<ions of the Debtors Relief Act over-ride thn<e in th"' Land Reforms Act.

The object of the two Acts are <liff Prnnt. The ol:>iect of the Land Reforms Act. as already noted. is the imnrovement of the land revenue administration and nuttin<" an end to the Clirasdari svstem and irrantinJ?: of occupancy

riht< to the Girasd"rs and /or their tenants, whereas the Debtors Relief Act g-ovems the rights of the debtors and creditors inter se inter alia bv scaling down the debets and oroviding for restoration of their nronertv to debtors. In our view. the ri2hts of the debtors in th; s case wP-re not extimn1ished under the Land Reforms Act and it was oPen to the court exercising jurisdiction under the Debtors Relief Act to scale down the debt and provide for resto

MAVJl v. MAMDAJI (Mitter, /,) 697

A ratian Qf tho laad in p!llSOl4lon of tho mortgageos to tho mortgagor& on taking fresh acoou11ts n the parties and directing payments by one party to the other as has been done in this case.

Tho appoala thertforo fail and are dismisled with coets. a Y.P.

App1q/ dismissed.