Patel Bhuder Mavji Vs. Jat Mamdaji
Kalaji  INSC 39 (13 February 1969)
13/02/1969 MITTER, G.K.
HIDAYATULLAH, M. (CJ)
CITATION: 1969 AIR 1196 1969 SCR (3) 690 1969
SCC (2) 139
R 1971 SC1575 (18)
Saurashtra Agricultural Debtors Relief Act
Mortgage with possession--Mortgagor applying for adjustment-Land declared
Khalsa under the Land Reforms Act-Effect of-Saurashtra Land Reforms Act, (Sau,
25 of 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
Girasdars became occupants of 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 rest-oration of their property, to the debtors.
Thereupon the respondents applied for
adjustment of their debt to the Court having jurisdiction under the- Debtors
Relief Art. The' appellants relied on the order of the Special Mamlatdar
declaring the lands as Khalsa and contended that the lands having been declared
as Kholsa, the respondents had lost their rights therein.
HELD : The rights of the
respondents-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 in
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 of persons in 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 Landholders as mortgagors unless the persons in occupation had become
tenants either by contract or by operation of law.
No adjudication of the rights of the debtors
and creditors inter se was done. All that the Special Mamlatdar decided and had
jurisdiction 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 had to show that
they had become tenants which 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 tenancy rights.
That apart, it has not been shown that the respondents were awarded any
compensation in respect of the 691 Khalsa lands given in mortgage to the
appellants. The occupancy certificates, if any, given by the Special Mamlatdar
to the appellants could not under the provisions of the Land Reforms Act
extinguish the title of the respondents. [695 H; 696 H]
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.
P. M. Rawal and P. C. Bhartari, for the
The Judgment of the Court was delivered by
Mitter, J. These are two appeals by special leave from judg- ments 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 Act. The
applicants before the High Court and the appellants before this Court were
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 lost all their interest in the lands
mortgaged by reason of the operation 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 and 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 possession 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 liability under the documents of mortgage to pay the revenue and other
dues to the State but there is no dispute that they have 692 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 sand
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
land 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
The Act came into force in the whole of
Saurashtra area of the State of Gujarat. Under S. 2(15) 'Girasdar' meant any
talukdar, bhagdar, bhayat, cadet or mul-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 force. 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 person who was lawfully cultivating any land belonging to a
Girasdar was to be deemed for the purposes of the Act to be the tenant if he
was not a member of the Girasdars family or a servant on wages payable in cash
or in kind etc. or a mortgagee in, possession. The Explanation to the sub-
section however shows that a person who was otherwise, deemed to be a tenant
was not to cease to be such only on the 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 show inter alia, the area and location of the
land in respect of which 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 possession. Under S. 20 of the Act it was for the
Mamlatdar to issue notice to the tenant or tenants 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 Girasdar 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 granted such a certificate was to be free of all
relations and obligations as tenant to the Girasdar. The Girasdar in his turn was
to be entitled to receive and be paid compensation as provided in the Act.
Under S. 36 the right. tide and interest of the Girasdar in respect of an
occupancy holding were to be deemed to have been extinguished on the payment by
the Government of the last installment of compensation.
The functions of a Mamlatdar are laid down in
S. 46 of the Act. It was for him to decide inter alia what land should be
allotted to a Girasdar for personal cultivation and to make such allotment, to
decide whether a person was or was not tenant, to determine whether a tenancy
shall be termi- nated under S. 12 and many other matters. Under s.51. an appeal
lay to the Collector against any order of the Mamlatdar.
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 Girasdar and his tenants and
the rights which they were respectively to acquire under the orders of the
Special Mamlatdar. The said Officer had no jurisdiction to terminate any rights
under mortgage, 694 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 that 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 arid 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 Khalsa 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 rights 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 Judge the
judgment of the Bhayati court had merely decided that the Bajana 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 possession 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 extinguished 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 respondents. Reliance was placed on the decision
of the Special 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
bad not been extinguished and not being tenants within the meaning of s. 6 the
creditors could not have got an occupancy certificate in respect 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 any disturbance to the rights inter se. between the
mortgagor and the mortgagees. Dealing, with the question of the advances made
and the amounts 695 still due to the creditors, it was ordered that the debtors
should pay Rs. 1,698/- in twelve yearly installments 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 Bhayati 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 Special Mamlatdar rejected the
application of the debtors and directed 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 the lands by the
(c) It was not necessary to test the
correctness of the decision of the Special Mamlatdar 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 argued that subject to any appeal
from his order his decision was binding on the parties and not having gone up
in appeal from the order of the Special 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 the appellants nor are we satisfied
from copies of form 7 prescribed under Rule 81 of the Rules promulgated under
the Land Reforms Act that there was any adjudication of the rights of the
debtors and the creditors inter se. In our view all that the Special Mamlatdar
decided and had jurisdiction to decide under the Act was, whether the debtors
could be given occupancy certificates or allotted any land Gharkhed and the
Special Mamlatdar merely ordered that the lands being khalsa full assesment 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 creditors had to show that
they had 696 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 during 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 certificates, 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 mortgagors not being extinguished under any provision of law to which
our attention was drawn, no, fault can be found, with the award is finally
modified by the judgment of the Assistant Judge and effect must be given
thereto. In our view, it is not necessary to consider the point canvassed at
length before the High Court and dealt with in the judgment of the said court
as to whether the Provisions of the Debtors Relief Act over-ride those in the
Land Reforms Act.
The object of the two Acts are different. The
object of the Land Reforms Act. as already noted, is the improvement of the
land revenue administration and outline an end to the Girasdari system and
granting of occupancy rights to the, Girasdars and /or there, tenants, whereas
the Debtors Relief Act governs the rights of the debtors and creditors inter se
inter alia by scaling down the debits and providing for restoration of their Pr
to debtors. In our view, the right of the debtors 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 tile debt and provide
for resto- 697 ration of the land in possession of the mortgagees to the
mortgagors on taking fresh accounts between the parties and directing payments
by one party to the other as has been done in this case.
The appeals therefore fail and are dismissed
Y.P. Appeal dismissed.