Case ID: 2406

Judgment:
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 58.35 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 1/4 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 2/3rd share.and Ramachandrarao had 1/3rd share	 because	 originally	 before partition Shankerrao was entitled to 1/2 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 2/3rd 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 1942	when 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 1/3rd share in the plot	 while Sitabai continued to be entitled to the remaining 2/3rd 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 2/3rd share in this plot No. 1227	 and allowed the respondent 's appeal in respect of the 1/3rd 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 C.P. 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 1/3rd 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. Y.P. 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]