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Mohd. Idris and ors. Vs. Sat Narain - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC1499; [1966]3SCR15
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rule 10; Transfer Of Property Act - Sections 83
AppellantMohd. Idris and ors.
RespondentSat Narain
Excerpt:
.....zamindari abolition and land reforms act and therefore suit not maintainable in munsif court - munsif held suit maintainable and ordered ejectment - district court dismissed appeal - revision before high court failed - special leave petition before supreme court - suit was filed in 1952 - u.p. agriculturist relief act repealed by abolition act in 1953 - new law took away jurisdiction of munsif court and conferred it on assistant collector - no provision incorporated in abolition act to the effect that cases pending prior to date of coming into existence of act were to stand transferred to assistant collector for disposal - section 6 of general clauses act applicable to pending litigation - supreme court held, munsif's jurisdiction is not taken away by abolition act in view of..........the appellate court when the 1956 amendmentact was passed. it follows, therefore, that to such a suit the provisions ofschedule ii read with s. 200 of the abolition act cannot be applied because thelegislature has in 1956 said expressly what was implicit before, namely, thatpending actions would be government by the old law as if the new law had notbeen passed. in our judgment, therefore, the proceedings before the munsif werewith jurisdiction because they were not affected by the passing of theabolition act or the amending act, 1953, regard being had to the provisions ofs. 6 of the u.p. general clauses act in the first instance and more so in viewof the provisions of s. 23 of the amending act, 1956 which came before theproceedings between the parties had finally terminated. the appeal.....
Judgment:

Hidayatullah, J.

1. This is an appeal by special by leave against an order passed by theAllahabad High Court in Civil Revision No. 1077 of 1957 dated October 9, 1961in a suit in which a decree for redemption on an application under s. 12 of theU.P. Agriculturist Relief Act has been passed. The appellants are thesuccessors-in-interest of one Suleman who was the original mortgagee. Theoriginal respondent in this appeal Sat Narain was the successor-in-interest ofone Jantari who was the original mortgagor. Subsequently, Sat Narain sold hisinterest to others who have been ordered by us to be joined as respondentsunder O. 22 r. 10 of the Code of Civil Procedure on their application in thisbehalf (C.M.P. No. 2081 of 1965). The land in dispute measures 5 bighas and 3biswas (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 thesaid 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 Sankalapof Jantari.

2. 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 theallegation that the mortgage has been paid off from the usufruct of the land andhe was entitled to redeem it. As required by the Agriculturist Relief Act theclaim was made in the prescribed from and set out the accounts by reason ofwhich it was claimed that the mortgage was satisfied. The defendants, whorepresented Suleman (the mortgagee) opposed the application. Two writtenstatements were filed on October 4, 1952 and March 31, 1953. Both thestatements alleged that the plaintiff was not an agriculturist and hence thesuit 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 theland was not productive. One of the written statements denied even themortgage. All the defendants claimed that they had become Sirdars by reason ofthe U.P. Zamindari Abolition and Land Reforms Act and that the suit was not,therefore, maintainable. Although the Abolition Act had come into force fromJuly 1, 1952 no other claim was set up. Nor was the suit challenged asincompetent by reason of any provisions of the Abolition Act.

3. The learned Munsif framed five issues which he decided in favour of theplaintiff before him. He held that there was a mortgage as alleged; that theplaintiff and the original mortgagor were agriculturists; and that the mortgagehad been satisfied from the usufruct. He also held that the defendants(mortgagees) had not become Sirdars and the suits was maintainable. In theresult he passed a decree in favour of the plaintiff on November 24, 1953. Thedefendants appealed to the District Court but by a judgment dated April 17,1957 their appeal was dismissed. All the above findings were confirmed by theCivil Judge, Allahabad who disposed of the appeal. The main point which wasurged before the appellate Court was that as the U.P. Agriculturist Relief Actwas repealed by an Act in 1953 which amended the Abolition Act, the suit unders. 12 of the U.P. Agriculturist Relief Act was rendered incompetent and theplaintiffs could not eject the representatives of the mortgagee except inaccordance with the provisions of the Abolition Act. This contention was notaccepted by the learned Civil Judge, Allahabad. An application for revision wasthen filed in the High Court but it was dismissed by the order impugned in thisappeal as the decree of the Munsif had already been executed and possession hadbeen delivered on May 1, 1957 to the successors-in-interest of the originalmortgagor. Mr. Justice Mithan Lal who decided the revision, held that nointerference was called for as the property had gone back to the originalwonder an substantial justice had already been done. From the last order thepresent appeal has been filed by special leave of this Court.

4. The only question that has been urged before us is whether the suit iscompetent. The U.P. Agriculturist Relief Act was intended to confer certainbenefits upon the agriculturists. One such benefit was that an agriculturistmortgagor was afforded an easy remedy to redeem a mortgage made by him. Hecould, under s. 12 of that Act apply, notwithstanding anything in s. 83 of theTransfer of Property Act or any contract to the contrary, for an orderdirecting that the mortgage be redeemed, and, where the mortgage was withpossession, that the mortgagor agriculturist be put in possession of themortgaged property. It is clear that on May 27, 1952 when the application unders. 12 of the Agriculturist Relief Act was filed the provisions of that Actincluding s. 12 were available. The competency of the proceedings is challengedbecause 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 wereto go under s. 339 of the Abolition Act read with Schedule 3 List I beforecertain Revenue Officers. Item 13A was added in that List by s. 67 of the ActXVI of 1953 and it repealed the U.P. Agriculturist Relief Act. Schedule 2 ListI of the Abolition Act conferred jurisdiction on Assistant Collectors FirstClass to eject asamis. The question which is raised in this appeal is whetherafter this was done, the suit which was still pending, could continue beforethe Munsif and on the application under the U.P. Agriculturist Relief Act. Insupport of their case the appellants contend that the ejectment of an asami ora Sirdar can only be under the provisions of the Abolition Act and no otherlaw. The appellants claim to have become asamis by reason of the provisions ofthe Abolition Act although they had claimed in the High Court and the courtsbelow that they had become Sirdars. We have, therefore, to consider in thisappeal what was the status of the representatives of the mortgagor on the onehand and of the mortgagee on the other, and then to decide whether the Munsifwas competent to pass the decree for redemption and to order the ejectment ofthe present appellants. It may be stated at once that we declined to heararguments on the other pleas of the appellants which have now been concurrentlyrejected in the first two courts.

5. The claim that the appellants became the Sirdars of this land isabandoned before us because the land was the Sir Sankalap of the mortgagor andthe provisions of s. 14(2)(a) exclude a mortgagee with possession from claimingthat right in respect of such land. Section 14(2)(a) reads :

'14. Estate in possession ofa mortgagee with possession.

(2) Where any such land was inthe personal cultivation of the mortgagee on the date immediately preceding thedate of vesting -

(a) if it was sir or khudkasht ofthe mortgagor on the date of the mortgage, the same shall, for purposes ofsection 18, be deemed to be the sir or khudkasht of the mortgagor or his legalrepresentative;

. . . .'

6. By reason of this section the land continued to be the Sir or khudkashtof the mortgagor. The learned Munsif pointed out that, even though therepresentatives of the mortgagee had obtained a certificate as Sirdars, theycould not enjoy that status, in view of s. 14(2)(a). The appellants now claimto be asamis under s. 21(1) (d). That provision runs :

'21. Non-occupancy tenants,sub-tenants of grove lands and tenant's mortgagees to be asamis.

(1) Notwithstanding anythingcontained in this Act, every person who, on the date immediately preceding thedate of vesting, occupied or held land as -

. . . . . .

. . . . . .

(d) a mortgagee in actualpossession 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) ofsection 19.

. . . .

7. They claim further that under s. 200 no asami can be ejected from hisholding except as provided in the Abolition Act and refer to s. 202 (c) wherethe procedure for the ejectment of an asami who belongs to the class mentionedin Clause (d) of sub-s. (a) of s. 21 is provided. Section 202 (c) reads :

'202. Procedure of ejectmentof asami.

Without prejudice to theprovisions of section 338, an asami shall be liable to ejectment from hisholding on the suit of the Gaon Samaj or landholder, as the case may be on theground or grounds.

. . . . . .

. . . . . .

(c) that he belongs to the classmentioned in clause (d) of sub-section (1) of section 21 and the mortgage has beensatisfied or the amount due has been deposited in Court;

. . . . . . .'

8. They also refer to Schedule II of the Abolition Act which lays down thata suit for ejectment of an asami must go before an Assistant Collector (FirstClass). They contend, therefore, that the proceedings before the Munsif wereincompetent after July 1, 1952 and no decree could be passed in favour of therepresentatives of a mortgagor.

9. The Zamindari Abolition Act came into force with effect from July 1,1952. It has undergone numerous amendments and it is somewhat difficult to findout at any given moment of time what the state of law exactly was, because mostof the amending Acts are made partly retrospective and partly not and considerabletime is spent in trying to ascertain which part of the original Act survivesand to what extent. We are concerned with a number of sections which haveundergone changes again and again and we shall now attempt to examine what theposition vis-a-vis the suit pending before the Munsif was, as a result of theenacting of the Abolition Act and its numerous amendments.

10. This suit was filed on May 27, 1952 when the Abolition Act was not onthe statute book. When the Abolition Act was passed it did not repeal to U.P.Agriculturist Relief Act. Both the Acts, therefore, continued on the statutebook till July 12, 1953. On that date Act XVI of 1953 was passed. Section 67 ofthat Act repealed the U.P. Agriculturist Relief Act. While repealing the Act itwas not stated whether the repeal was to operative retrospectively or not butby s. 1(2) the amending Act itself was deemed to have come into force from thefirst 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 alsorepealed retrospectively from July 1, 1952. The question is : whether the rightof the plaintiff to continue the suit under the old law was in any wayimpaired. Section 6 of the U.P. General Clauses Act lays down the effect ofrepeal and it is stated there as follows :-

'6. Effect of repeal.

Whether any Uttar Pradesh Actrepeals any enactment hitherto made or hereafter to be made, then, unless adifferent intention appears, the repeal shall not -

. . . . . . . .

(c) affect any right, privilege,obligation or liability acquired, accrued or incurred under any enactment sorepealed; or

. . . . . . . . .

(e) affect any remedy, or anyinvestigation or legal proceeding commenced before the repealing Act shall havecome into operation in respect of any such right, privilege, obligation,liability, penalty, forfeiture or punishment as aforesaid; and any such remedymay be enforced and any such investigation or legal proceedings may becontinued and concluded; and any such penalty, forfeiture or punishment imposedas if the repealing Act had not been passed'.

11. The question is whether a different intention appears in either theAbolition Act or the amending Act XVI of 1953, for otherwise the old proceedingcould continue before the Munsif. There is nothing in the Abolition Act whichtakes away the right of suit in respect of a pending action. If there be anydoubt, it is removed when we consider that the U.P. Agriculturist Relief Actwas repealed retrospectively from July 1, 1952 only and it is not, therefore,possible to give the repeal further retrospectively so as to affect a suitpending from before that date. The jurisdiction of the Assistant Collector wasitself created from July 1, 1952 and there is no provision in the Abolition Actthat pending cases were to stand transferred to the Assistant Collector fordisposal. Such provisions are commonly found in a statute which takes away thejurisdiction of one court and confers it on another. From these twocircumstances it is to be inferred that if there is at all any expression ofintention, it is to keep s. 6 of the General Clauses Act applicable to pendinglitigation. The doubt, if any be left, is further removed if we consider alater amending Act, namely, Amending Act XVIII of 1956. By that Act ScheduleII, which created the jurisdiction of the Assistant Collector in suits forejectment of asamis was replaced by another Schedule. The entry relating tosuits for ejectment of asamis, however, remained the same. But s. 23 of theamending Act of 1956 created a special saving which reads as follows :-

'23. Saving :-

(i) Any amendment made by thisAct shall not affect the validity, invalidity, effect or consequence ofanything already done or suffered, or any right, title, obligation or liabilityalready acquired, accrued or incurred or any jurisdiction already exercised,and any proceeding instituted or commenced before any court or authority priorto the commencement of this Act shall, notwithstanding any amendment hereinmade, continue to be heard and decided by such court or authority.

(ii) An appeal, review orrevision from any suit or proceeding instituted or commenced before any courtor authority prior to the commencement of this Act shall, notwithstanding anyamendment herein made, lie to the Court or authority to which it would havelaid if instituted or commenced before the said commencement'.

12. The addition of this section clearly shows that by the conferral of thejurisdiction upon the Assistant Collector it was not intended to upsetlitigation pending before appropriate authorities when the Abolition Act cameinto force. Section 23 in terms must apply to the present case, because if ithad remained pending before the Munsif till 1956, it is clear, the jurisdictionof the Munsif would not have been ousted. Although it was not pending beforethe Munsif it was pending before the appellate Court when the 1956 amendmentAct was passed. It follows, therefore, that to such a suit the provisions ofSchedule II read with s. 200 of the Abolition Act cannot be applied because theLegislature has in 1956 said expressly what was implicit before, namely, thatpending actions would be government by the old law as if the new law had notbeen passed. In our judgment, therefore, the proceedings before the Munsif werewith jurisdiction because they were not affected by the passing of theAbolition Act or the amending Act, 1953, regard being had to the provisions ofs. 6 of the U.P. General Clauses Act in the first instance and more so in viewof the provisions of s. 23 of the amending Act, 1956 which came before theproceedings between the parties had finally terminated. The appeal must,therefore, fail. It will be dismissed with costs.

13. Appeal dismissed.


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