Mohd. Idris & Ors Vs. Sat Narain
 INSC 290 (10 December 1965)
10/12/1965 HIDAYATULLAH, M.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 1499 1966 SCR (3) 15
U.P. Agriculturists' Relief Act (27 of
1934),s. 12- Application under-Act repealed by U.P. Zamindari Abolition and
Land Reforms Act (1 of 1951)-Pending proceeding if affected.
The U.P. Zamindari Abolition and Land Reforms
Act was passed on 26th January 1951 but the right of the Zamindars vested in
the State only with effect from 1st July 1952. Also both the Abolition Act and
the U.P. Agriculturists' Relief Act 1934 continued on the Statute Book till
12th July 1953. In May 1952, the respondent, who was the successor in-interest
of the original mortgagor, filed an application under s. 12 of the
Agriculturists' Relief Act in the Munsif's Court, alleging that the mortgage
had been paid off from the usufruct of the land and that he was entitled to
On 12th July 1953 the Abolition Act was
amended by Act 16 of 1953 by which the Agriculturists' Relief Act was repealed.
By s. 1(2) of the Amending Act, the Amending
Act itself was deemed to have come into force on 1st July 1952, that is,
smultaneously with the Abolition Act. In November 1953, the respondent's
application was decreed. In appeal, it was urged on behalf of the appellant,
the successor-in-interest of the original mortgagees that as the
Agriculturists' Relief Act was repealed the application under s. 12 of that Act
was incompetent and that the respondent could not eject the appellant except in
accordance with the provisions of the Abolition Act. This contention was not
accepted by the appellate court, and a revision application by the appellant to
the High Court was also dismissed.
In appeal to this Court, on the question
whether the proceeding before the Munsif was competent,
HELD: 'Me proceedings were with jurisdiction,
because, they were not affected by the passing of the Abolition Act, or the Amending
Act of 1953, regard being had to the provisions of s 6 of the U.P. General
Clauses Act in the first instance. and more so, in view of the provisions of s.
23 of the Amending Act 18 of 1956, which came into force before the proceedings
between the parties had finally terminated. [23 A-B] There was nothing in the
Abolition Act which took away the right in respect of a pending action. Under
the Amending Act 16 of 1953, the Agriculturists' Relief Act was repealed
retrospectively from 1st July 1952 only, and it is not possible to give the
repeal further retrospectively so as to affect a proceeding pending before that
date. The jurisdiction of the Assistant Collector under the Abolition Act was
itself created from 1st July 1952. but there was no Provision in the Abolition
Act, that pending proceedings were to stand transferred to the Assistant
Collector for disposal. Therefore as a result of s. 6 of the U.P General
Clauses Act, the proceeding could continue before the Munsif since a different
intention does not appear either in the Abolition Act or Amending Act 16 of
1953. Further, s. 23 of Amending Act 18 of 1956, shows that by the conferral of
the jurisdiction upon the Assistant Col- 16 authorities when the Abolition Act
came into force. Since the proceeding was pending before the Appellate Court in
1956, when the 1956 amendment was passed, it follows that the provisions of the
Abolition Act could not be applied, because the Legislature had in 1956 said
expressly in s. 23, what was implicit before, namely, that pending actions
would be governed by the old law as if the new law had not been passed. [21 F.
H., 22 F. H.]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 962 of 1964.
Appeal by special leave from the judgment and
order dated October 9, 1961 of the Allahabad High Court in Civil Revision No.
1077 of 1957.
C. B. Agarwala, E. C. Agarwala and P. C.
Agarwala, for the appellants.
S. P. Sinha and M. I. Khowaja, for
respondents 2 to 7.
The Judgment of the Court was delivered by
Hidayatullah, J. This is an appeal by special leave against an order passed by
the Allahabad High Court in Civil Revision No. 1077 of 1957 dated October 9,
1961 in a suit in which a decree for redemption on an application under S. 12
of the U. P. Agriculturist Relief Act has been passed. The appellants are the
successors-in-interest of one Suleman who was the original mortgagee. The
original respondent in this appeal Sat Narain was the successor-in-interest of
one Jantari who was the original mortgagor. Subsequently, Sat Narain sold his
interest to others who have been ordered by us to be joined as respondents
under 0. 22 r. 10 of the Code of Civil Procedure on their application in this
behalf (C.M.P. No. 2081 of 1965). The land in dispute measures 5 bighas and 3
biswas (Khata No. 2 situate in Bhagwatipura, pargana Kewai, district Allahabad)
and consists of 5 plots Nos. 26, 27, 29, 30 and 32. Jantari had mortgaged the
said land with Suleman on October 4, 1929 and the mortgage, now it is admitted,
usufructuary in nature. It is also admitted now that the land was Sir Sankalap
On May 27, 1952, Sat Narain filed an
application under S. 12 of the U.P. Agriculturist Relief Act in the court of
the Munsif (East) Allahabad on the allegation that the mortgage had been paid
off from the usufruct of the land and he was entitled to redeem it. As required
by the Agriculturist Relief Act the claim. was made in the prescribed form and
set out the accounts by reason of which it was claimed that the mortgage was
satisfied. The defendants, who represented Suleman (the mortgagee) 1 7 opposed
the application. Two written statements were filed on October 4, 1952 and March
31, 1953. Both the statements alleged that the plaintiff was not an
agriculturist and hence the suit was not maintainable under s. 12 of the U.P.
Agriculturist Relief Act. They also stated
that the mortgage was not satisfied from the usufruct as the land was not
productive. One of the written statements denied even the mortgage. AR the
defendants claimed that they had become Sirdars by reason of the U.P. Zamindari
Abolition and Land Reforms Act and that the suit was not, therefore,
maintainable. Although the Abolition Act had come into force from July 1, 1952
no other claim was set up. Nor was the suit challenged as incompetent by reason
of any provisions of the Abolition Act.
The learned Munsif framed five issues which
he decided in favour of the plaintiff before him. He held that there was a
mortgage as alleged; that the plaintiff and the original mortgagor were
agriculturists; and that the mortgage had been satisfied from the usufruct. He
also held that the defendants (mortgagees) had not become Sirdars and the suit
was maintainable. In the result he passed a decree in favour of the plaintiff
on November 24, 1953. 'Me defendants appealed to the District Court but by a
judgment dated April 17, 1957 their appeal was dismissed. All the above
findings were confirmed by the Civil Judge, Allahabad who disposed of the
appeal. The main point which was urged before the appellate Court was that as
Agriculturist Relief Act was repealed by an
Act in 1953 which amended the Abolition Act, the suit under s. 12 of the U.P.
Agriculturist Relief Act was rendered incompetent and the plaintiffs could not
eject the representatives of the mortgagee except in accordance with the
provisions of the Abolition Act. This contention was not accepted by the
learned Civil Judge, Allahabad. An application for revision was then filed in
the High Court but it was dismissed by the order impugned in this appeal as the
decree of the Munsif had already been executed and possession had been
delivered on May 1, 1957 to the successors-in-interest of the original
mortgagor. Mr. Justice Mithan Lal who decided the revision, held that no
interference was called for as the property had gone back to the original owner
and substantial justice had already been done. From the last order the present
appeal has been filed by special leave of this Court.
The only question that has been urged before
us is whether the suit is competent. The U.P. Agriculturist Relief Act was
intended to confer certain benefits upon the agriculturists. One 18 such
benefit was that an agriculturist mortgagor was afforded an easy remedy to
redeem a mortgage made by him.
He could, under S. 12 of that Act apply,
notwithstanding anything in s. 83 of the Transfer of Property Act or any
contract to the contrary, for an order directing that the mortgage be redeemed,
and, where the mortgage was with possession, that the mortgagor agriculturist
be put in possession of the mortgaged property. It is clear that on May 27,
1952 when the application under s. 12 of the Agriculturist Relief Act was filed
the provisions of that Act including S. 12 were available. The competency of
the proceedings is challenged because in 1953 in amending the U.P. Zamindari
Abolition and Land Reforms Act, 1950, the Agriculturist Relief Act was repealed
and certain kinds of suits were to go under S. 339 of the Abolition Act read
with Schedule 3 List I before certain Revenue Officers. Item 13A was added in
that List by S. 67 of the Act XVI of 1953 and it repealed the U.P.
Agriculturist Relief Act. Schedule 2 List I of the Abolition Act conferred
jurisdiction on Assistant Collectors First Class to eject asamis. The question
which is raised in this appeal is whether after this was done, the suit which
was still pending. could con- tinue before the Munsif and on the application
under the U.P. Agriculturist Relief Act. In support of their case the
appellants contend that the ejectment of an asami or a Sirdar can only be under
the provisions of the Abolition Act and no other law. The appellants claim to
have become asamis by reason of the provisions of the Abolition Act although
they had claimed in the High Court and the courts below that they had become
Sirdars. We have, therefore, to consider in this anneal what was the status of
the representatives of the mortgagor on the one hand and of the mortgagee on
the other, and then to decide whether the Munsif was competent to pass the
decree for redemption and to order the ejectment of the present appellants. It
may be stated at once that we declined to hear arguments on the other pleas of
the appellants which have now been concurrently rejected in the first two
The claim that the appellants became the
Sirdars of this land is abandoned before us because the land was the Sir
Sankalap of the mortgagor and the provisions of S. 14(2) (a) exclude a
mortgagee with Possession from claiming that right in respect of such land.
Section 14(2)(a) reads:
"14. Estate in possession of a mortgagee
(1) 19 (2) Where any such land was in the
personal cultivation of the mortgagee on the date immediately preceding the
date of vesting- (a) if it was sir or khudkasht of the mortgagor on the date of
the mortgage, the same shall, for purposes of section 18, be deemed to be the
sir or khudkasht of the mortgagor or his legal representative;
By reason of this section the land continued
to be the Sir or khudkasht of the mortgagor.
The learned Munsif pointed out that, even
though the representatives of the mortgagee had obtained a certificate as
Sirdars, they could not enjoy that status, in view of s. 14 (2) (a). The
appellants now claim to be asamis under s. 21 (1 ) (d). That provision runs :
"21. Non-occupancy tenants, sub-tenants
of grove lands and tenants mortgagees to be asamis.
(1) Notwithstanding anything contained in
this Act, every person who, on the date immediately preceding the date of
vesting, occupied or held land as- (d) a mortgagee in actual possession from a
person belonging to any of the classes mentioned in clauses (b) to (e) of
sub-section (1) of section 18 or clauses (i) to (vii) and (ix) of section 19
They claim further that under s. 200 no asami can be ejected from his holding except
as provided in the Abolition Act and refer to s.
202(c) where the procedure for the ejectment
of an asami who belongs to the class mentioned in cl. (d) of sub-s. (1) of s.
21 is provided.
Section 202(c) reads :
"202. Procedure of ejectment of asami.
Without prejudice to the provisions of
section 338, an asami shall be liable to ejectment from his holding on the suit
of the Gaon Samaj or 20 landholder as the case may be on the ground or grounds.
(c) that he belongs to the class mentioned in
clause (d) of sub-section (1) of section 21 and the mortgage has been satisfied
or the amount due has been deposited in Court;
They also refer to Schedule II of the
Abolition Act which lays down that a suit for ejectment of an asami must go
before an Assistant Collector (first Class). They contend, therefore, that the
proceedings before the Munsif were incompetent after July 1, 1952 and no decree
could be passed in favour of the representatives of a mortgagor.
The Zamindari Abolition Act came into force
with effect from July 1, 1952. It has undergone numerous amendments and it is
somewhat difficult to find out at any given moment of time what the state of
law exactly was, because most of the amending Acts are made partly
retrospective and partly not and considerable time is spent in trying to
ascertain which part of the original Act survives and to what extent. We are
concerned with a number of sections which have undergone changes again and
again and we shall now attempt to examine what the position vis-a-vis the suit
pending before the Munsif was, as a result of the enacting of the Abolition Act
and its numerous amendments.
This suit was filed on May 27, 1952 when the
Abolition Act was not on the statute book. When the Abolition Act was passed it
did not repeal the U.P. Agriculturist Relief Act.
Both the Acts, therefore, continued on the
statute book till July 12, 1953. On that date Act XVI of 1953 was passed.
Section 67 of that Act repealed the U.P.
Agriculturist Relief Act. While repealing the Act it was not stated whether the
repeal was to operate retrospectively or not but by S. 1 (2) the amending Act
itself was deemed to have come into force from the first day of July, 1952,
that is to say, simultaneously with the Abolition Act. It may, therefore, be
assumed that the U.P. Agriculturist Relief Act was also repealed
retrospectively from July 1, 1952. The 21 question is : whether the right of
the plaintiff to continue the suit under the old law was in any way impaired.
Section 6 of the U.P. General Clauses Act lays down the effect of repeal and it
is stated there as follows :- 6. Effect of repeal.
Where any Uttar Pradesh Act repeals any
enactment hitherto made or hereafter to be made, then, unless a different
intention appears, the repeal shall not- (c) affect any right, privilege,
obligation or liability acquired, accrued or incurred under any enactment so
repealed; or (e) affect any remedy, or any investigation or legal proceeding
commenced before the repealing Act shall have come into operation in respect of
any such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid; and any such remedy may be enforced and any such
investigation or legal proceedings may be continued and concluded; and any such
penalty, forfeiture or punishment imposed as if the repealing Act had not been
passed.,' The question is whether a different intention appears in either the
Abolition Act or the amending Act XVI of 1953, for otherwise the old proceeding
could continue before the Munsif. There is nothing in the Abolition Act which
takes away the right of suit in respect of a pending action. If there be any
doubt, it is removed when we consider that the U.P. Agriculturist Relief Act
was repealed retrospectively from July 1, 1952 only and it is not, therefore,
possible to give the repeal further retrospectively so as to affect a suit
pending from before that date. The jurisdiction of the Assistant Collector was
itself created from July 1, 1952 and there is no provision in the Abolition Act
that pending cases were to stand transferred to the Assistant Collector for
disposal. Such provisions are commonly found in a statute which takes away the
jurisdiction of one court and confers it on another. From these two
circumstances it is to be inferred that if there is at all any expression of
intention, it is to keep s. 6 22 of the General Clauses Act applicable to
The doubt, if any be left, is further removed
if we consider a later amending Act, namely, Amending Act XVIII of 1956.
By that Act Schedule 11, which created the
jurisdiction of the Assistant Collector in suits for ejectment of asamis was
replaced by another Schedule. The entry relating to suits for ejectment of
asamis, however, remained the same. But S. 23 of the amending Act of 1956
created a special saving which reads as follows "23. Saving.- (i) Any
amendment made by this Act shall not affect the validity, invalidity, effect or
consequence of anything already done or suffered, or any right, title,
obligation or liability already acquired, accrued or incurred or any
jurisdiction already exercised, and any proceeding instituted or commenced
before any court or authority prior to the commencement of this Act shall,
notwithstanding any amendment herein made, continue to be heard and decided by
such court or authority.
(ii) An appeal, review or revision from any
suit or proceeding instituted or commenced before any court or authority prior
to the commencement of this Act shall, notwithstanding any amendment herein
made, lie to the Court or authority to which it would have laid if instituted
or commenced before the said commencement." The addition of this section
clearly shows that by the conferral of the jurisdiction upon the Assistant
Collector it was not intended to upset litigation pending before appropriate
authorities when the Abolition Act came into force. Section 23 in terms must
apply to the present case, because if it had remained pending before the Munsif
till 1956, it is clear, the jurisdiction of the Munsif would not have been
ousted. Although it was not pending before the Munsif it was pending before the
appellate Court when the 1956 amendment Act was passed. It follows, therefore,
that to such a suit the provisions of Schedule 11 read with s. 200 of the
Abolition Act cannot be applied because the Legislature has in 1956 said
expressly what was implicit before, namely, that pending actions would be
governed by the old law as if the new law had not been passed. In our judgment,
23 therefore, the proceedings before the Munsif were with jurisdiction because
they were not affected by the passing of the Abolition Act or the amending Act,
1953, regard being had to the provisions of s. 6 of the U.P. General Clauses
Act in the first instance and more so in view of the provisions of s. 23 of the
amending Act, 1956 which came before the proceedings between the parties had
finally terminated. The appeal must, therefore, fail. It will be dismissed with