J.M. Shelat, C.J.
1. This revision application is concerned with two agricultural lands, hereinafter referred to as Bavalia and Kumbharia lands, situate at Nagwada in Dasada Taluka, District Surendranagar. The litigation in question has had a somewhat chequered career and therefore it becomes necessary to state a few facts in order to appreciate the respective stands taken by the parties.
2. The first petitioner is the some of the second petitioner and at all material times formed a point and undivided Hindu family along with one Mohanpuri, the second so of the second petitioner. The two lands in question stood in the revenue records in the name of the second petitioner. Both the properties were barkhali lands and therefore were governed by the Barkhali Abolition Act, 1951. In his deposition before the Debt Adjustment Board, to which 1 shall presently refer, the first petitioner took the stand that he was a barkhalidar of Nagwada.
3. On May 5, 1950 the first petitioner executed a registered mortgage deed in respect of the Bavalia field in favour of the respondent-creditor. That fact is not disputed by either of the petitioners. On November 23, 1952 the first petitioner and the said Mohanpuri executed a sale deed for a consideration of Rs. 800/- in respect of the Kumbharia land. As the first petitioner and Mohanpuri were illiterate, their signatures in the sale deed were made on their behalf by one Jayantilal, since deceased, and those signatures were attested by two witnesses. The said deed also bore the signature of the second petitioner, but that signature was below the attestations and it was said that the signature of the second petitioner was taken some days after November 23, 1952, and the amount of Rs. 300/-out of the said amount of Rs. 800/- was also paid subsequently. The sale deed, however, was unstamped and unregistered and, therefore, no transfer of property would take place thereunder.
4. Before the deed was executed, petitioner No. 2 applied for an occupancy certificate in respect of both the lands on January 30, 1952. It appears that on April 28, 1952 the respondent also applied for occupancy certificate, claiming to be a tenant of both the lands. On April 30, 1954, the Special Mamlatdar passed an order granting occupancy certificate to petitioner No. 2, and dismissed the application of the respondent. On May 22, 1957, the respondent filed an appeal before the Deputy Collector, Surendranagar, against the aforesaid order of the Mamlatdar. The Deputy Collector allowed the appeal, set aside the Mamlatdar's order and remanded the case to the Mamlatdar. On July 7, 1959, the Mamlatdar passed an order granting occupancy certificate to the respondent on the ground that he was a tenant in occupation of the lands in question, when the Barkhali Abolition Act came into force. Against that order, petitioner No. 2 filed an appeal. The Deputy Collector allowed the appeal and granted occupancy certificate to the second petitioner. Against that order, the respondent filed a revision before the Gujarat Revenue Tribunal, being L.R. 68 of 1960, and by its order dated August 9, 1961 the Tribunal allowed the revision, setting aside the order of the Deputy Collector and restoring the order of the Mamlatdar The second petitioner filed a special civil application in this Court against the order of the Tribunal, but that application was rejected by this Court and therefore, the order of the Tribunal became final. The result of this litigation, therefore, was that occupancy certificate has been finally granted to the respondent.
5. While the litigation relating to occupancy certificate was going on between the parties before the revenue authorities, the two petitioners filed an application for debt adjustment against the respondent and other creditors under Section 4 of the Saurashtra Agricultural Debtors' Relief Act XXIII of 1954, The Civil Judge, Senior Division, Surendranagar, who constituted the Debt Adjustment Board under that Act, held in that application that the sale transaction relating to Kumbharia land was not a sale but was a transaction in the nature of a mortgage, and further held that considering the income enjoyed by the respondent of both the fields during his possession as the mortgagee, nothing remained due and payable by the petitioners under the two mortgage transactions and, therefore ordered restoration of possession of both the fields to the petitioners under Section 30(2)(v) of the S.A.D.R. Act, 1954. Two things must be observed in this connection, (1) that this order was passed while the litigation relating to occupancy certificate was still pending before the revenue authorities,, and (2) apparently no consideration was paid to the question as to whether the respondent was entitled to defend his right of possession of Kumbharia field under Section 53A of the Transfer of Property Act. Although the deed of sale, on account of its being unstamped and unregistered, could not effectuate transfer of property in Kumbharia land to the respondent, it was possible for the respondent to plead (1) that there was part-performance of the contract of sale in the sense that consideration had passed from him to the petitioners, and (2) that possession was handed over to him under that transaction. That question was obviously not considered by the Debt Adjustment Board.
6. As against that order, the respondent filed an appeal before the District Court, Surendranagar. The learned District Judge allowed the appeal by his order dated July 24, 1958 and set aside the order of the Board and remanded the case to the Board with specific directions not to proceed with the matter till the question of occupancy certificate was finally decided between the parties. The learned District Judge also directed that the respondent should be allowed to put in evidence, the document of sale which was previously not admitted in evidence, and after considering that document and other evidence that the parties would lead, directed the Board to pass a fresh award. Accordingly the matter went back to the Board. Curiously, though the litigation regarding the occupancy certificate was still pending, the Board, contrary to the specific directions given by the learned District Judge, proceeded with the matter allowing the respondent to put in the said deed of sale in evidence and allowing the parties to lead further evidence regarding execution of that document by the petitioners and the said Mohanpuri. On that evidence, the Board came to two conclusions, (1) that the first petitioner and Mohanpuri had executed the sale deed, the signature of the second petitioner was dishonestly and fraudulently obtained and therefore there was no valid execution by the second petitioner; and (2) that the consideration for the transaction was not Rs. 801/- but only Rs. 660/-. On these two findings, the Board came to the conclusion that the transaction was not of sale but was a transaction in the nature of a mortgage and further that in respect of both the properties there was nothing due and payable to the respondent-creditor as the respondent had enjoyed the income of the lands by being in possession sufficiently long enough to wipe off both the debts and therefore ordered the respondent to restore possession of both the lands. The Board however arrived at these conclusions with out taking into consideration the fact that (1) in their application for adjustment of the debts against the respondent, the petitioners had admitted that regarding Kumbharia land the debt due and payable by them was Rs. 801/- and regarding Bavalia property the debt was Rs. 500/-; and (2) the fact that the respondent was claiming occupancy certificate in respect of both the properties alleging that he was in occupation as a tenant besides as a mortgagee in one and as a purchaser in the other. Since the petitioners had admitted in their application for adjustment that the debt regarding Bavalia property was Rs. 500/-, there was no occasion for the Board to go into the question as to what was the amount of debt in respect of Kumbharia property due and payable by the petitioners to the respondent, unless the admission that the two amounts were due and payable by them was retracted by the petitioners. That was never done and, therefore, the Board was not entitled, in view of the aforesaid admission, to go into the question of the quantum of consideration paid by the respondent in relation to Kumbharia property or come to the conclusion that the amount of consideration was only Rs. 660/-.
7. But far more serious than this was the fact that in its judgment the Board did not at any place hold that the evidence before it was to the effect that the transaction was in substance a mortgage and not a sale. It is true that in their application for adjustment, the petitioners had stated that Rs. 801/- was the debt due by them and that on repayment of that amount the Kumbharia property was to be restored to during the course of the hearing before the Board, the case of the was not that the transaction was one of a mortgage. The case of the first petitioner in fact was that he had executed the sale deed without knowing that it was a sale deed, and the case of the second petitioner was that he had never executed that document. The case of the second petitioner further was that no consideration had passed in respect of this transaction, but that the mortgage debt in respect of the Bavalia property was treated as consideration for the aforesaid sale transaction. The Board accepted the case of the second petitioner that he had not executed the said deed, and further held that as the Kumbharia property stood in the name of the second petitioner, the first petitioner was not authorised to sell that land or to execute the aforesaid sale deed. It was from this finding only, and not on any evidence that the transaction was in effect a transaction in the nature of a mortgage, that the Board concluded that the transaction was not a sale but was one in the nature of a mortgage. In my view, the Board had no jurisdiction to go into the question whether the sale by the first petitioner and the said Mohanpuri was one which they could enter into or not and whether they were authorised to enter into such transaction or not. The basis of the jurisdiction of the Debt Adjustment Board under the S.A.D.R. Act is a debt and it is only in cases where the relationship between the parties is one of a debtor and a creditor that the Board gets jurisdiction to adjust such a debt. Though the application for the adjustment of the debt recited that Rs. 801/- were due and constituted the debt and the land was to be restored on repayment of that amount, such a transaction can be a conditional sale. In any event, it was never the evidence of the petitioners that the amount of Rs. 801/- was advanced to them by way of a loan, or that possession of the Kumbharia property was handed over to the respondent in his capacity as a mortgagee-in-possession. Obviously, therefore, the Board had no jurisdiction to pass the order of restoration of possession of Kumbharia land.
8. While dealing with the appeal against this order by the respondent the learned Assistant Judge, who heard that appeal, rightly came to the conclusion that the Board acted contrary to the directions given by the learned District judge in his order of remand and rightly observed that the Board ought to have waited until the litigation regarding the occupancy certificate was finally adjudicated by the revenue authorities. As regards the question of jurisdiction in regard to Kumbharia land, the learned Assistant Judge came to the conclusion (1) that on evidence the respondent had proved execution of the said sale deed by both the petitioners, (2) that the respondent was entitled to defend his possession under Section 53 A of the Transfer of Property Act, and (3) that during the hearing it was never the case of the petitioners that the transaction relating to the Kumbharia property was one of mortgage and not of a sale. It was because of these conclusions having been reached by the learned Assistant Judge that at page 12 of the paper book the learned Judge observes-
'Therefore, the appellant No. 1 (the respondent herein) is entitled to protect under Section 53A of the Transfer of Property Act. It is not the case of the respondent (the petitioners herein) that the transaction dated 23-11-52 evidenced under Ex. 31 is in the nature of a mortgage. They have never alleged so during the course of hearing of this application as provided under Section 22 of the S.A.D.R. Act. Therefore, it was not proper for the lower Court to frame additional issues whether the transaction dated 23-11-52 is a sale or mortgage. Such issue can only be framed when it is alleged by the debtors during the course of hearing that such transaction even though of sale is in the nature of a mortgage. Their contention is that Ex. 31 being unstamped and unregistered is not admissible into the evidence and no title passed by that deed. Their further contention is that since no title was passed on Ex. 31, previous mortgage of Rs. 500/- remains and it requires to be adjusted under the S.A.D.R. Act. The lower Court approached the question wrongly. The lower Court held that the sale deed is not proved to have been executed to sell the field and therefore' the sale deed is not valid. He thereupon jumped to the conclusion that since the sale deed is not valid, it is a mortgage. That cannot be the correct approach First of all, the lower Court has erred in holding that the sale deed is not proved to have been duly executed by respondent Nos. 1 and 2. Secondly, it was not within the function of the Board to decide whether the respondent No. 2 had an authority to mortgage or sell the field Kumbharia to appellant No. 1. If the respondent-debtors have any grievance on that account, they can file a civil suit to set aside the sale deed. Once the sale deed is proved to have been duly executed and the appellant No. 1 has entered into the possession of lands referred in the sate deed, then, he would be entitled to defend his title under Section 53A of the Transfer of Property Act and therefore there would be no relationship of the debtor and creditor between the respondent No. 1 and 2 and appellant No. 1, so far as that transaction is concerned.
These observations were made, and in my view sightly, because during the hearing, whereas petitioner No. 1 admitted execution, the case of the second petitioner was only one of denial of execution and want of authority on the part of the first petitioner to sell the property. That being the position, the Board had no jurisdiction to enter into the question whether the sale deed was executed by the second petitioner or not or, whether the first petitioner had the authority to sell. These questions, as rightly observed by the learned Assistant Judge, could be agitated in a proper suit before a Civil Court and not before the Adjustment Board. The learned Assistant Judge, therefore, was right in setting aside the award so far as the Kumbharia property was concerned.
9. As regards the Bavalia property, it is the transaction relating to that property was one there can be no doubt that the Board had jurisdiction that debt and adjust it under the provisions of the S.A.D.R. Act. No doubt, the Board proceeded with that question contrary to the express direction of the learned District Judge contained in his order of remand. That indeed was a serious thing. But since this matter has gone on for a long time, it would not benefit either party to remand the matter. Besides, the litigation regarding the occupancy certificate has been finally disposed of and a final order has been passed for issuing an occupancy certificate to the respondent. Mr. Vyas appearing for the petitioners, however, contended that since there is a finding by the Board that nothing remains due and payable by the petitioners to the respondent in respect of the mortgage relating to Bavalia property, the fact that occupancy certificate has been directed to be issued to the respondent would not entitle the respondent to remain any longer in possession of the Bavalia property. Mr. Vyas argued that the S.A.D.R. Act being a later Act than the Bar-khali Abolition Act, 1951 and Clause (v) of Sub-section (2) of S.A.D.R. Act having a non-obstante clause therein, it would of Section 30(2) which would prevail and, therefore, the learned Assistant Judge was wrong in setting aside the order of the Board which directed restoration of the Bavalia property. In support of his contention, Mr. Vyas relied upon an unreported judgment of Divan J. in Civil Revision Application No. 88 of 1961 decided on April 28, 1965. In that case also, the debtor had filed an application under Section 4 of the S.A.D.R. Act for-adjustment of his debts and the Adjustment Board, by its order dated May 2, 1958, awarded possession of the fields which were mortgaged by the debtor with his creditors, amongst whom was the petitioner in that revision application. Against that order, the petitioner filed an appeal before the District Court, and the learned Assistant Judge, Surendranagar, partly allowed the appeal and ordered that the debtor should pay to the petitioner Rs. 1,698/-, but confirmed the order of restoration of possession to the debtor. The question that was canvassed before the learned Judge was whether the order passed under the S.A.D.R. Act for restoration of possession to the debtor, should prevail against the order passed by the Special Mamlatdar under the Saurashtra Land, Reforms Act, 1951, by which occupancy certificate was granted to the petitioner. The learned Judge relied upon Shiddu Rama v. Basawa 58 B.L.R. 1, and after considering the effect of the non-obstante clause in Section 30(2)(v) of the Act, held that the provisions of Section 30(2)(v) of the Act would prevail notwithstanding anything in any law to the contrary, that is to say, the provisions of the Land Reforms Act under which occupancy certificate was granted to the petitioner. In Shiddu Rama v. Basawa (supra), the contention was that though an order can be passed under the Agricultural Debtors' Relief Act restoring possession to the debtor from a mortgagee-creditor, if the mortgagee-creditor also happened to be a tenant whose possession was protected under the Tenancy Act, an order restoring possession from such mortaged-creaditor could not be validly passed. That conclusion was repelled by Gajendragadkar, J., as he then was, on the ground that since the Debt Adjustment Act was a subsequent legislation and contained a non-obstante clause, it would be that Act which would prevail [as against the Tenancy Act and therefore an order for restoration of possession in such cases could be validly passed. The position, however, in the present case is somewhat different from the one which prevailed in Shiddu Rama v. Basawa. As already stated, before the Debt Adjustment Board the 2nd petitioner took the stand that he was the barkhalidar of the village Nagwada and that he held both the lands under a barkhali tenure. The Barkhali Abolition Act, as already stated, came into force on September 1, 1951. Section 5 of the Act provides that on the commencement of the Act, all rights, title and interest of [all the barkhalidars in agricultural lands comprised in barkhali estate shall cease and be vested in the State free from all encumbrances, subject to the provisions of the Act. It is clear from Section 5, therefore, that whatever right, title and interest that the 2nd the two lands in question, those rights ceased as from and became vested in the then State of Saurashtra free from all encumbrances. Mr. Vyas for the petitioners conceded that the expression 'subject to the provisions of this Act' contained in Section 5 would relate to such provisions under which allotment of gharkhed land would be made in favour of a barkhalidar, but that since no such allotment has been made in favour of the petitioners, those words have no relevance for the consideration of Section 5 in the present case. Section 14 of the Act further provides that notwithstanding anything contained in any contract or any law for the time being in force no claim or liability, whether under any decree or order of a Civil Court, or otherwise enforce able against a barkhalidar for any money which is charged on or is secured by a mortgage of any land which is in the possession of a tenant, shall be enforceable against the occupancy holding of an occupant, and every such claim or liability shall be deemed to be a charge on the payment of compensation to be made to a barkhalidar under Section 18 of the Act. The provisions of Section 5 and Section 14, when read together, would lead to the result that as from September 1, 1951, the 2nd petitioner as barkhalidar of the two lands in question ceased to have any rights, title or interest in the two properties, such rights as he had in the lands as barkhalidar having vested in the State. As a corollary to that result, Section 14 provides that a charges or a mortgagee in respect of such land would have no right to enforce his claim against an occupant having occupancy holding in such land. Such a provision had to be made in Section 14 by reason of the fact that as from September 1, 1951, all right, title and interest of a barkhalidar in a barkhali land held by him came to an end and were vested in the State. That being the position, the question for determination would be whether in such a case an order of restoration of possession of land can be passed by the Debt Adjustment Board under the provisions of the S.A.D.R. Act, when under the provisions of the Barkhali Abolition Act a barkhalidar ceased to have any right, title or interest in such land. Such a question was not canvassed before Divan J. in Civil Revision Application No. 88 of 1961, nor did it arise in the case of Shiddu Rama v. Basawa and therefore, neither of the two, decisions can assist Mr. Vyas. The right, title and interest of a barkhalidar in barkhali land held by him having ceased as from September 1, 1951, the right of redemption in such a land mortgaged in favour of a mortgagee also would come to an end and clearly, therefore, there would be no question of an order for restoration of possession of such land being passed under the provisions of the S.A.D.R. Act, for, by the time that the S.A.D.R. Act came into force in 1954, the right, title and interest of a barkhalidar in their entirety had already come to an end. The rights of a barkhalidar in such land having already vested on and from September 1, 1951 in the State, if the State were to grant occupancy certificate, thereby granting occupancy rights in the lands to the respondent, such occupancy rights having been derived from the State and not from or through the debtor and the debtor having already ceased to have any right, title or interest in the land, no order for restoration of possession of such land could be made under the provisions of the S.A.D.R. Act. No question, therefore, of any conflict between the two Acts can be said to arise in such a case and consequently, no question of the provisions of Section 30(2)(v) of the S.A.D.R. Act prevailing over the provisions of the Barkhali Abolition Act of 1951 can possibly arise. In this view, the learned Assistant Judge was right in allowing the said appeal and setting aside the order passed by the Adjustment Board.
The revision application, consequently fails and is dismissed. The petitioners will pay to the respondent the costs of this revision application.