Govardhan Dass & 8 Ors. v. Smt. Sitabai

The Judgment of ~he 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 Mouza Shahpur, Tehsil Burhanpur in Novem­ ber, 1950 on the ground that they had been unlawfully dispossess­ ed from this land. Thls land formed part of the propel'ty of one Laxmanrao who had two sons Vishwasrao and Krishliarao. Krishnarao had· two sons Dinkerrao and Shamrao. Shamrao was adopted by Vishwasrao in the year 1895. The ri~ht~ ;in certain village properties, including 'Sir' lands, vested in .this Jwnt family consisting of Vishwasrao, his adopted son Shamrao, ·and 272 SUPREME COURT REPORTS [1969) I SC.R. his nephew Dinkerrao. The three of them jointly executed two mortgage deeds in that year, and, in the mortgage deeds, men­ tioned that they were mortgaging the property which was des­ cribed as 'MaJguzari Mouzas and Sir land of Tchsil Burhanpur District Nimar', and 'Maufi Government land' situa1c in certain villages in Pargana Jainabad, Tehsil Burhanpur. The mortgages were in favour of the predeccssors-in-title of the appellants. In the year 1928, there was a partition in the j0 in1 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 adop1cd by Shamrao. The parties to the partition were, there­ fore, Shankerrao, the adopted son of Shamrao, Ramach<tndrarao and Wamc111rao the sons of Dinkerrao. Shankerrao received t share in the property. while Ramachandrarao and Wam~nrao received ~ 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 propcr1y remaining joint with Shankcrrao and Ramachandrarao, Shankerrao had 2/3rd share and Ramachandrarao had I /3rd share, because. originally. before partition Shankerrao was entitled to l share and Wamanrao to J sh~re. In the year 1939, the proprietary rights of Shankerrao were purchased by one Vinayakrao, so that, under the law then exist­ ing, 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 Tnsolvency 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 ~his plot became a co-tenancy of Shankerrao and Ramachandra­ rao in the capacity of ex-proprietary occupancy tenants. There­ after. there was some dispute about the amount and the right of redemption under the mortgage between Shankerrao and th~ mortgagee, and this dispute was referred to an arbitrator, Sn 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 ~hat decree, Shankerrao's 2/3rd share. including his rig.h.ts in the 'sir' plot No. 1227. was purchased by the mort­ gagee. Tn 1940, Ramachandrarao had died and his ~x-p~opr~etary occupancy rights in that plot No. 1227 had vested m his widow. Sitabai. the respondent in these appeals. Tn 1942, when she was dispossessed from this plot No. 1227 in pursuance of the mortgage 1 I ·~ ' .. GOVARDHAN v. SITABAI (Bhargava, !.) 273 A· decree passed in terms of the award, she filed an application to the Revenue Court under sections 12 and 13 of the Cemral Pro­ vinces Tenancy Act I of 1920 (hereinafter referred to as "the Act") for restora1ion of possession of her occupancy rights in this plot No. 1227. The Revenue Court allowed her claim and res- tored her to the possession of this plot. Thereupon, the appel­ lants filed the suit claiming possession of this plot as mentioned above. The suit was partially decreed by the trial Court granting 8 to the appellants the righ1 to joint possession with Sitabai on th.e basis that they had 1/3rd share in the plot, while Sitabai conu­ nued to be entitled to the remaining 2/3rd share. Both parties filed appeals to the Court of the District Judge, Khandwa. T~e lower appellate Court dismissed the appeal of the appellants m respect of the 2/3rd share in this plot No. 1227, and allowed the respondent's appeal in respect of the l/3rd share of the sa~e plot, with the r~sult that the whole suit of the appellants stood dis­ missed. 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 appellwte '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 ill' 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 cultivatOf)' rights also in this 'sir' land. The mere mention of the 'sir' land as part of the property mortgaged can only be interpreted as lay­ ing 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 ~sufructuary mortgages in 1895, the mortgagors contmued 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 cleat that the mortgagors must have become exproprietary occupancy tenants of this land in the year 1895. 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 proprictary 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 plac~'d 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 hy 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 aHcrnatives. One alternative is that they became ex-proprietary occupancy tenants when the usufructuary mortgages were executed. The other alternative is that the righls of ex-proprietary tenants--<lid 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 th":, by the time the Act came into force in the year 1920, they must have become occupancy tenants as defined in s. 10 of the Act. Section l 0 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 he 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 righ1s 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 appellan1s was that, under the decree passed on the basis of the award, and in the proceedings for insolvency of Ramachandrarao, tl1c rights in this land were acquired by the mortgagees 1hrough the pro­ ceedings taken by the courts. The claim was that the rights of Shankerrao passed to the mortgagees when the mortgagees pur­ chased his righ·ts 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 hy Sri Vipat. while the remaining 1 /3rd share of Ramachandrarao also passed to them wh.~n his rights were transferred by the Insolvency Court. This claim, clear!)', fails in view of the provisions of s. I 2 or s. 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 s. I 2 deals with the right of transfer of lands cultivated by an occupancy tenant. We need not go mto D· F· G :. GOVARDHAN V. SITABAI (Bhargava, J.) 275 the question whether the expression "occupancy tenant" in s. 12. does or does not include an ex-proprietary occupancy tenant. If it be held that the mortgagees had become ex-proprietary occu­ pancy tenants of the land in 1895 as a result of the execution of usufructuary mortgages, the provisions of s. 49 would apply. As a result of those provisions, the rights of 1he ex-proprjetary occu­ pancy tenant could not have been transferred in favour of the mortgagees. Section 50, as it was at that •time, did permit trans­ fer 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 insol­ vency proceedings against Ramachandrarao, the transfers pur­ ported to be effected were made with the permission of the appro­ priate authority. Consequently, under s. 49, those transfers would be void. Taking 1he 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 Surt No. 12-A of 1942 and in the insolvency proceedings would be in contravention of s. 12 of the Act. It appears that the revenue authorities, in restoring possession to Sitabai on her application purporting to be under s. 13 of the Act, proceeded on the basis of this second alternative that. the rights of the mortga­ gors were governed by s. 12 of the Act. We are unable to hold that, in this proceeding, the revenue authorities committed any error. Section 12 barrec\ ,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 res­ tored 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 s. 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 applicatior under s. 100 of the Act. The application filed by Sitabai for restoration of possession could, therefore, be treated as an appli- 276 St:PREME COURT REPORTS [ 1969] I S.C.R. cation under s. I 00 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 entrtled to claim possession in this suit. The appeals fail and are dismissed with costs. One hearing ~ B Y.P. Appeals dismissed.