judgement:
l Appeal No. 1613 of 1966.
Appeal from the judgment and decree dated August 19, 1963 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 50 D of 1960.
V.A. Seyid Muhammad, S.P. Nayar and B.D. Sharma ', for the appellants.
S.T. Desai, K.L.Arora, Bishambar Lal and H.K. Puri, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by certificate from the judgment of the Division Bench of the Punjab High Court dated August 19, 1963 in Letters Patent Appeal No. 50 D of 1960.
An auction was held for the sale of licence of country liquor shop in Bela Road for the year 1949 50 on March 23, 1949.
The auction took place in pursuance of the conditions of "Auction of Excise Shops in Delhi for the year Clauses 31 and 33 of the conditions were to the following effect: "31.
The Chief Commissioner is under no obligation to grant any license until he is assured of financial status of the bidder.
At the conclusion of the auction an enquiry will be made into the financial position of any bidder not known to the excise staff and any such bidder shall if necessary be called upon to furnish security for the observance of the terms of his licence as required by sub section (2) of section 34 of the Punjab Excise Act 1 of 1914, as extended to Delhi Province.
596 33.
All final bids will be made subject to the confirmation by the Chief Commissioner who may reject any bid without assigning any reasons.
If no bid is accepted for any shop,_ the Chief Commissioner reserves the right to dispose.
it off by tender or otherwise as he thinks The respondent offered the highest bid of Rs. 4,01,000/ for the shop.
Under the Excise Rules the bidder had to deposit one sixth of the purchase price within seven days of the auction but the deposit was not made by the respondent.
In these circumstances the Chief Commissioner did not confirm the bid of the respondent and resale of the Excise Shop was ordered.
On May 3, 1949 the shop was again auctioned when Messrs Daulat Ram Amar Singh offered the highest bid of Rs. 2,20,000/ which was confirmed by the Chief Commissioner, on July 7, 1949.
Holding the respondent liable for the loss of Rs. 1,81,000 being the difference between the bid of the respondent and of Messrs Daulat Ram Amar Snigh the Collector of Delhi started proceedings for the recovery of Rs. 1,81,000,./. On July 22, 1949 the respondent filed a suit in the court of Senior Subordinate Judge, Delhi praying for a permanent injunction restraining the appellants from taking any proceedings to recover the amount.
The trial judge decreed the suit holding that the sale was subject to confirmation by the Chief Commissioner under cl. 33 and since the auction in favour of the respondent was not accepted by him there was no binding obligation between the parties.
The decree of the trial court was upheld by the lower appellate court.
In second appeal False, J., took the view that cl. 3 3 was not in consonance with the statutory rules and the contract came into existence when the bidding was closed in favour of the respondent on March 23, 1949.
The respondent was therefore held liable to make good the loss which the Government sustained in resorting to the resale of the excise shop.
The resportdent preferred an appeal under Letters Patent.
The Division Bench allowed the appeal reversing the decision of the single Judge and restored that of the trial court.
Clause 21 of rule 5.34 states: "A person to whom a shop has been sold shall pay one sixth of the annual fee within seven days of the auction (any deposits already made shall be credited to this sum, and any excess shall be either returned to him or credited to future payments).
By the 7th of the month in which he begins his business under his license and by the 7th of every subsequent month the licensee shall pay one twelfth of the annual fee till the whole fee is paid.
But he may at any time pay the whole amount due if he wishes.
If the total amount due is less than Rs. 100 it shall be payable in one sum unless the Collector for 597 special reasons, allows payment to be made in instalments.
If any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one sixth of the annual fee, or if he refuses to accept the license, the Collector may resell the license, either by public auction or by private contract, and any deficiency in price and all expenses of such resale or attempted resale shall be recoverable from the defaulting bidder in the manner laid down in section 60 of the Punjab Excise Act, 1 of 1914, as applied to the Delhi Province.
Rule 22 states: "When a license has been cancelled, the Collector may resell it by public auction or by private contract and any deficiency in price and all expenses of such resale or attempted resale shall be recoverable from the defaulting licensee in the manner laid down in section 60 of the Excise Act as applied .to the Delhi Province.
" On behalf of the appellants it was contended by Dr. Seyid Muhammad that the respondent was under a legal obligation to pay one sixth of the annual fee within seven days of the auction under cl. 21 of r. 5.34 and it.
was due to his default that a resale of the excise shep was ordered.
Under cl. 22 of r. 5.34 the respondent was liable for the deficiency in price and all expenses of such resale* which was caused by his default.
We are unable to accept this argument.
The first portion of cl. 21 requires the "person to whom the shop has been sold" to deposit one sixth of the total annual fee within seven days.
But the sale is deemed to have been made in favour of the highest bidder only on the completion of the formalities before the conclusion of the sale.
Clause 16 of r. 5.34 states that "all sales are open to revision by the Chief Commissioner".
Under cl. 18, the Collector has to make a report to the Chief Commissioner where in his discretion he is accepting a lower bid.
Clause 33 of the Conditions, exhibit D 28, states that "all final bids will be made subject to the confirmation by the Chief Commissioner who may reject any bid without assigning any reasons.
" It is, therefore, clear that the contract of sale was not complete till the bid was confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid.
When the bid is so withdrawn before the confirmation of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the shortfall on the resale.
An acceptance of an offer may be either absolute or conditional.
If the acceptance is conditional the offer can be withdrawn at any moment until absolute acceptance has taken place.
This view is borne out by the 598 decision of the Court of Appeal in Hussey vs HornePayne(1).
In that case V offered land to P and P accepted 'subject to the title being approved by my solicitors '.
V later refused to go on with the contract and the Court of Appeal held that the acceptance was conditional and there was no binding contract and that V could withdraw at any time Until P 's solicitors had approved the title.
Jessel, M.R. observed at p. 626 of the report as follows: "The offer made to the Plaintiff of the estate at that price was a simple offer containing no reference whatever to title.
The alleged acceptance was an acceptance of the offer, so far as price was concerned, 'subject to the title being approved by our solicitors '.
There was no acceptance of that additional term, and the only question which we are called upon to decide is, whether that additional term so expressed amounts in law to an additional term or whether it amounts, as was very fairly admitted by the counsel for the Respondents, to nothing at that is, whether it merely expresses what the law would otherwise have implied.
The expression 'subject to the title being approved by our solicitors ' appears to me to be plainly an additional term.
The law does not give a right to the purchaser to say that the title shall be approved by any one, either by his solicitor or his conveyancing counsel, or any one else.
All that he is entitled to require is what is called a marketable title, or, as it is sometimes called, a good title.
Therefore, when he puts in 'subject to the title being approved by our solicitors ', he must be taken to mean what he says, that is, to make a condition that solicitors of his own selection shall approve of the title.
" It was submitted on behalf of the appellant that the phrase "person to whom a shop has been sold" in cl.
21 of r. 5.34 means a " 'person whose bid has been provisionally accepted".
It is not possible to accept this argument.
As we have already shown the first part of cl.
21 deals with a completed sale and the second part deals with a situation where the auction is conducted by an officer lower in rank than the Collector.
In the latter case the rule makes it clear that if any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one sixth of the annual fee, or if he refuses to accept the licence, the Collector may resell the licenee, either by public auction or by private contract and any deficiency in price and all expenses of such resale shall be recoverable from the defaulting bidder.
In the present case the first part of cl. 21 applies.
It is not disputed that the (1) at 676.
599 Chief Commissioner has disapproved the bid offered by the respondent.
If the Chief Commissioner had granted sanction under cl. 33 of exhibit D 23 the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale.
As the essential pre requisites of a completed sale are missing in this case there is no liability imposed on the respondent for payment of the deficiency in the price.
For these reasons we hold that the judgment of the Punjab High Court dated August 19, 1963 in L.P.A. No. 50 D of 1960 is correct and this appeal must be dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The respondent gave the highest bid at an auction for the sale of license for a country liquor shop in Delhi for the year 1949 50.
Under cl. 31 of the conditions of sale for that year, the Chief Commissioner was under no obligation to grant a license until he was assured of the financial status of the bidder.
Under el.
33 all final bids were made subject to confirmation by the Chief Commissioner who could reject any bid assigning any reasons.
However under cl. 21 of r. 5.34 of the Delhi Liquor License Rules a person to whom a shop had been sold had to pay one sixth of the annual fee within seven days of the auction.
The respondent not having paid one sixth of the annual fee as required by the said cl. 21, the Chief Commissioner did not confirm his bid.
Resale of the excise shop was ordered.
At the new auction it was sold at a lower price.
The Collector Delhi thereupon held the respondent liable to pay the difference between his bid and the bid for which the shop was later sold, and commenced proceedings for the recovery of the sum.
The respondent filed a suit in the Court of the Senior Subordinate Judge, Delhi praying for a permanent injunction restraining the appellants (Union of India & Ors.) from taking any proceedings for the recovery of the amount.
The trial judge decreed the suit.
The decree was upheld by the first appellate court.
In second appeal the Single Judge decided against the respondent.
The Division Bench decided in his favour.
The appellants came to this Court with certificate.
It was contended on behalf of the appellants that the respondent was under a legal obligation to pay one sixth of the annual fee within seven days of the auction under el.
21 of r. 5.34; it was due to his default that a resale of the excise shop was ordered; and under cl. 22 of r. 5.34 the respondent was liable for the deficiency in price and all expenses of such resale which was caused by his default.
HELD: (i) An acceptance of an offer may be either absolute or conditional.
If the acceptance is conditional the offer can be withdrawn at any moment until absolute acceptance has taken place.
[H 597] From cl. 33 of the conditions of sale it is clear that the contract of sale is not complete till it is confirmed by the Chief Commissioner and till such confirmation the person whose bid has been provisionally accepted is entitled to withdraw his bid.
If the bid is so withdrawn before the confirmslion of the Chief Commissioner the bidder will not be liable for damages on account of any breach of contract or for the shortfall on resale.
[G H 597] Hussers vs Horne Payne, , 676, referred to.
595 (ii) The phrase "person to whom a shop has been sold" in el.
21 r. 5.34 cannot be accepted to mean a "person whose bid has bern provisionally accepted".
The first part of el.; 21 deals with a completed sale and the second part with a situation where the auction is conducted by an officer lower in rank than the Collector.
In the latter case the rule makes it clear that if any person whose bid has been accepted by the officer presiding at the auction fails to make the deposit of one sixth of the annual fee, or if he refuses to accept the licence.
the Collector may resell the licence either by public auction or by private contract and any deficiency in price and all expenses of such resale shall be recoverable from the defaulting bidder.
[F G 598] In the present case the first part of d. 21 was applicable.
If the Chief Commissioner had not disapproved the bid offered by the respondent under el.
33 of the conditions of sale, the auction sale in favour of the respondent would have been a completed transaction and he would have been liable for any shortfall on the resale.
As the essential prerequisites of a completed sale were lacking in this case there was no liability imposed on the respondent for payment of the deficiency in the price.
[598 H; 599 A B]


judgement:
Appeals Nos. 312 and 313 of 1966. 787 Appeals by special leave from the judgment and decree dated February 5, 1963 of the Gujarat High Court in Appeal No. 1009 of 1960 from original decree.
S.T. Desai, G. L. Sanghi, B.R. Agarwala and M. 1.
Patel, for the appellant (in C.A. No. 312 of 1966) and the respondent (in C.A. No. 313 of 1966).
K.L. Hathi, for respondents Nos.
1 to 8 (in C.A. No. 312 of 1966) and the appellants (in C.A. No. 313 of 1966).
N.S. Bindra and S.P. Nayar, for respondent No,. 9 (in C.A. No. 312 of 1966).
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought, by special leave, from the judgment of the High Court of Gujarat dated February 5, 1963 in appeal No. 1009 of 1960 arising out of Civil Suit No. 64 of 1958 filed by Mussamiya Imam Haider Bax Razvi, appellant in Civil Appeal No. 312 of 1966 (hereinafter referred to as the plaintiff) against the respondents in Civil Appeal No. 312 of 1966 and the appellants (excepting the Charity Commissioner) in Civil Appeal No. 313 of 1966 (hereinafter referred to as the defendants).
The lands in dispute are located in the village Isanpur and form part of a 'Devasthan ' inam.
The 'Sanads ' were created in the name of the ancestors of the plaintiff as the Sarjudanashi of the estate of Shah Alam which was an estate consisting of 'Roza ', a mosque, a grave yard and several other properties.
The estate was last held by the father of the plaintiff who expired on or about March 9, 1948 leaving behind him the plaintiff who was then a minor as his only heir.
On August 26, 1948 the Collector of Ahmedabad was appointed as the guardian of the properties of the plaintiff by an order of the District Court, Ahmedabad.
Subsequently, on or about January 15, 1953, the then Bombay Government assumed management of the estate under the Court of Wards Act, 1905 (Bombay Act No: 1 of 1905) and appointed the Collector of Ahmedabad as the manager of the same.
The case of the plaintiff is that the defendants fraudulently entered into a conspiracy with the Collector 's subordinate staff for getting possession of the disputed lands.
In this connection the first defendant wrote to the District Collector, Ahmedabad on July 25, 1956 representing that certain persons formed or will form a Co operative Society for carrying on agriculture and therefore required the lands for that purpose.
Defendants 1, 2, 3 and 5 also made applications for that purpose alleging that they were Rabari, kept cattle and were residents of Ahmedabad but none of them had any agricultural land.
On account of the fraud of the defendants the Collector was prevailed upon to make an order 788 dated July 28, 1956 in breach of the provisions of sections 63 and 64 of the Bombay Tenancy and Agricultural Lands Act (Bombay Act 67 of 1948), hereinafter referred to as the 'Act ', and the Rules made thereunder granting possession of the lands to the defendants who were neither carrying on agriculture on cooperative basis nor ever formed a Co operative Society.
It was contended on behalf of the plaintiff that the lease granted to the defendants was void and the plaintiff was entitled to a decree for recovery of possession of the lands from the defendants and also for a sum of ' Rs. 10,000 for damages for use and occupation of the land prior to the date of the suit and ,for future mesne profits at the rate of Rs. 500 per month.
The main written statement was filed by the first defendant and his contention was that the Civil Court had no jurisdiction to hear the suit.
It was said that valid lease had been created in favour of the defendants and as a result of the coming into force of the Amending Act (Bombay Act No. 13 of 1956) the defendants had become statutory owners of the lands in question.
The suit came up for hearing before the 5th Joint Civil Judge, Senior Division at Ahmedabad who by his judgment dated July 30, 1960, held that the Civil Court had jurisdiction to hear the suit and the provisions of the Act did not apply to the suit lands and therefore the defendants were trespassers.
The learned Judge accordingly granted a decree in favour of the plaintiff for recovery of possession of the lands from defendants 1 to 8.
He also granted the plaintiff a decree for a sum of Rs. 10,000 as damages for use and occupation of the lands with interest at 6 per cent p.a. from August 1, 1956 till the date of the suit i.e., July 11, 1958.
The learned Judge further ordered that the plaintiff was entitled to recover mesne profits to be determined under O.20, r. 12, Civil Procedure Code.
Defendants 1 to 8 took the matter in appeal to the High Court of Gujarat, being First Appeal No. 1009 of 1960.
The High Court held: (1 ) that the defendants had failed to establish that they had become statutory owners of the suit lands on or before the date of the suit, (2) that the plaintiff had failed to establish that the lease created either on July 28, 1956 or on August 24, 1956 was vitiated by fraud, and (3) that the Civil Court had no jurisdiction to deal with the question as to whether the defendants were or were not tenants from the date of the suit and this question could only be decided by the Revenue Authorities.
For these reasons the High Court directed that under section 85A of the ' Act the following issue should be referred to the Mamlatdar having jurisdiction in the matter for his decision and that the officer shall communicate his decision, or, if there are appeals from the decision, the final decision, to the High Court as soon as possible.
The issue was as follows: "Do the defendants prove that they are tenants of the lands in suit?" The High Court further directed that the hearing of the appeal 789 should stand adjourned until after the relevant communication was received from the Revenue Authorities.
It is necessary at this stage to set out the relevant provisions of the Act as it stood at the material time.
Section 2(18) states: "2.
In this Act, unless there is anything repugnant in the subject or context, (18) 'tenant ' means a person who holds land on lease and include (a) a person who is deemed to be a tenant under section 4; (b) a person who is a protected tenant; and (c) a person who is a permanent tenant; and the word 'landlord ' shall be construed accordingly;" Section 32(1) is to the following effect: "32.(1).
On the first day of April 1957 (hereinafter referred to as 'the tillers ' day") every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the land, or (iii) the landlord has not terminated the tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1957 under section 29 for obtaining possession of the lands.
Provided that if an application made by the landlord under section 29 for obtain Sup.
C.1. 69 4 790 ing possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the Gujarat Revenue Tribunal under the provisions of the Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed.
The date on which the final order of rejection is passed is hereinafter referred to as 'the postponed date '.
Provided further that the tenant of a landlord who is entitled to the benefit of the proviso to sub section (3) of section 31 shall be deemed to have purchased the land on the 1st day of April 1958, if no separation of his share has been effected before the date mentioned in that proviso.
" Section 32 F reads as follows: (1) Notwithstanding anything contained in the preceding sections, (a) where the landlord is a minor, or a widow or a person subject to any mental or physical disability or a serving member of the armed forces the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31.
Provided that where a person of such category is a member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day.
of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.
(b) Where the tenant is a minor or a widow or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause 791 (a) the right to purchase land under section 32 may be exercised ( i ) by the minor within one year from the date on which he attains majority; (ii) by the successor in title of the widow within one year from the date on which her interest in the land ceases to exist; Provided that where a person of such category is a.member of a joint family, the provisions of this sub section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not, in a larger proportion.
Section 63 (1) reads thus "63.
(1 ) Save as provided in this Act, (a) no sale ,(including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist (or who being an agriculturist will, after such sale, gift, exchange, lease or mortgage, hold land exceeding two thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings Act, 1961, or who is not an agricultural labourer ): Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed.
Explanation.
For the purpose of this sub section the expression 'agriculturist ' includes any person who as 792 a result of the acquisition of his land for any public purpose has been rendered landless, for a period not exceeding tea years from the date possession of his land is taken for such acquisition.
Section 70 is to the following effect: "70.
For the purposes of this Act the following shall be the duties and functions to be performed by the Mamlatdar (a) to decide whether a person is an agriculturist; (b) to decide whether a person is a tenant or a protected tenant (or a permanent tenant); (c) to decide such other matters as may be referred to him by or under this Act.
" Section 85 states: "(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court.
Explanation.
For the purposes of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdars ' Courts Act., 1906." Section 85A provides as follows: "( 1 ) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority ') the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shah communicate ifs decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable there Explanation.
For the purpose of this section a Civil Court shall include a Mamlatdar 's Court constituted under the Mamlatdars ' Courts Act, 1906.
" Section 88 reads "(1) Save as otherwise provided in sub section (2), nothing in the foregoing provisions of this Act shall apply (a) to lands belonging to, or held on 'lease from, the Government; (b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specific as being reserved for nonagricultural or industrial development; (c) to an estate or land taken . . . under the management of the Court of Wards or of a Government Officer appointed in his official capacity as a guardian under the ; (d) to an estate or land taken under management by the State Government under Chapter IV or section 65 except as provided in the said Chapter IV or section 65, as the case may be, and in sections 66, 80A, 82, 83, 84, 85, 86 and 87: Provided that from the date on which the land is released from management, all the foregoing provisions of this Act shall apply there to; but subject to the modification that in the case of a tenancy, not being a permanent tenancy, which on that date subsists in the land (a) the landlord shall be entitled to.
terminate the tenancy under section 31 or under section 33B in the case of a certificated land ' lord within one year from such date; and (b) within one year from the expiry of the period during which the landlord or certificated landlord is entitled to terminate the tenancy as aforesaid, the tenant shall have the right to purchase the land under section 32 (or under section 33C in the case of an excluded tenant); and 794 Rule 36 of the Bombay Tenancy and Agricultural Lands Rules, 1956 is to the following effect: "Conditions on which permission for sale etc.
of land.
under section 63 may be granted ( 1 ) The Collector or other officer authorized under the proviso to sub section (1 ) of section 63 shall not grant permission for the sale, gift, exchange, lease or mortgage of any land in favour of a person who is not either an agriculturist or an agricultural laboratory or who, being an agriculturist, cultivates personally land not less than the ceiling area whether as owner or tenant or partly as owner and partly as tenant unless any of the following conditions are satisfied : (a) such a person bona fide requires the land for a non agricultural purpose; or (b) the land is required for the benefit of an industrial or commercial undertaking or an educational or charitable institution; or (c) such land being mortgaged, the mortgagee has obtained from the Collector a certificate that he intends to take the profession of an agriculturist and agrees to cultivate ,he land personally; or (d) the land is required by a Co operative Society; or The first question to be considered in this case is whether the High Court was right in taking the view that the plaintiff failed to establish that the lease created on August 24, 1956 was vitiated by fraud.
It was contended by Mr. S.T. Desai on behalf of the plaintiff that the trial court had reached the finding that there was a conspiracy between the defendants and the Collectables staff and the Collector was induced by fraud and misrepresentation to grant lease in favour of the defendants.
It was argued that there was no justification for the High Court to interfere with the finding of the trial Judge on this point.
Mr. S.T. Desai took us through the relevant documentary evidence on this issue but having perused that evidence, we are satisfied that the High Court was right in holding that the plaintiff had not established that there was any fraud or misrepresentation made to the Collector or that there was a conspiracy between the defendants and the City Deputy Collector or his subordinates.
In this connection, the High Court has referred to the circumstance that the offer made by the Collector in his letter, exhibit 51 embodies 795 the conditions which are capable of being explained on the ground that the Collector was aware of the fact that there was no Co operative Society in existence and that the defendants were not members of any! Co operative Society.
The High Court also referred to the application, exhibit 5 3 which contains an endorsement of the City Deputy Collector that the defendants were given the lands for cultivation on co operative basis.
The High Court also referred to the circumstance that neither the plaintiff nor his personal guardian had appeared in the witness box to support the allegation of fraud.
We are accordingly of the opinion that the High Court was right in expressing the view that the lease in favour of the defendants was not vitiated by fraud and Counsel on behalf of the plaintiff has been unable to make good his submission on this aspect of the case We pass on to consider the next question arising in this case, namely, whether the defendants had become statutory owners of the suit lands because of the provisions of section 32, section 32 F or section 88(1) of the Act.
It is necessary to state at the outset that the Amending Act No. 13 of 1956 came into force on August 1, 1956.
It is not disputed by the parties that the Act as it stood before the Amending Act 13 of 1956, applied to the suit land.
One of the sections which was amended by the Amending Act 13 of 1956 was section 88.
One of the effects of the amendment of section 88 was that sections 1 to 87A were not applicable to "an estate or land taken under the management of the Court of Wards".
So, it is not in dispute that after August 1, 1956 the provisions contained in sections 1 to 87A of the Act did not apply to the suit lands.
It is also admitted that after the cessation of the management by the Court of Wards the provisions of the Act again became applicable to the suit lands.
It has been found by the High Court upon examination of the evidence that the Court of Wards withdrew its superintendence on May 11, 1958 when the order for the release of the management was actually passed and not on May 11, 1957 when the plaintiff attained majority.
It is evident therefore that the Act applied to the suit lands before August 1, 1956, that sections 1 to 87A did not apply during the period between August 1, 1956 and May 11, 1958 which was the date on which the management of the estate by the Court of Wards ceased, and that the provisions of the Act again applied to the suit lands after the cessation of such management.
On behalf of the defendants the argument was presented that there was a valid lease granted on July 28, 1956 and the defendants were tenants on April 1, 1957 i.e., the date of 'the tillers day ' under section 32 of the Act and accordingly the defendants became statutory owners of the lands in suit under that section.
Mr. Hathi on behalf of the defendants challenged the finding of the High Court that there was no valid lease created on July 28, 1956, but having gone through the relevant documentary 796 and oral evidence, we are satisfied that the defendants have not substantiated their case that there was any valid lease of the lands on July 28, 1956 and the High Court was right in taking the view that the lease was created only on the execution of the ' 'Kabuliyat ' dated August 24, 1956.
It follows from this finding that the defendants were not tenants on the 'tillers ' day ' mentioned in section 32 of the Act.
The other question which arises in! this connection is whether the defendants became statutory owners because of the provisions contained in the first proviso to section 88 of the amended Act.
The High Court has found that the defendants were not subsisting tenants on May 11, 1958 which was the date on which there was a cessation of the management.
The reason was that the 'Kabuliyat ' dated August 24, 1956 was a period of.
one year and having regard to the fact that the Act was not applicable to the plaintiff 's estate from August 1, 1956 to May 11, 1958, the tenancy would expire on May 31, 1957 as provided for in the 'Kabuliyat ' itself.
The High Court therefore found that on the basis that the tenancy was created by the 'Kabuliyat ' dated August 24, 1956, the tenancy came to an end on May 31, 1957, so that there was no subsisting tenancy on the date of the cessation of the management.
If there wag.
no subsisting lease on May 11, 1958, the High Court was right in taking the view that the defendants had failed to establish that they had become statutory owners of the land by virtue of the first proviso to section 88 of the new Act.
We proceed to consider the next question arising in this case, namely, whether the Civil Court had jurisdiction to decide the question whether the defendants were tenants of the suit lands on July 28, 1956 or on May 11, 1958 and whether the lease was created in favour of the defendants on July 28, 1956 as claimed by them or on August 24, 1956 as claimed by the plaintiff.
Mr. Hathi addressed the argument that the question whether the defendants were tenants with effect from July 28, 1956 or thereafter was an issue which was expressly triable by a Revenue Court under section 70 of the Act and the jurisdiction of the Civil Court was barred.
It was argued that the issue of ownership was not the primary issue before the High Court and the main question was whether the defendants were or were not the tenants of the suit lands on the material date, namely, July 28, 1956 or on May 11, 1958 and such a question lay within the scope of the jurisdiction of the Revenue Authorities.
In other words, it was argued that the determination of the question whether the lease was created which subsisted after August 1, 1956 or which subsisted also on May 11, 1958 was not a matter within the scope of the jurisdiction of the High Court.
We are unable to accept the argument put forward by Mr. Hathi as correct.
Section 70 (b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant, but the sub section 797 does not cast a duty upon him to decide whether a person was or was not a tenant in the past whether recent or remote.
The main question in the present case was the claim of the defendants that they had become statutory owners of the disputed lands because they were tenants either on the 'tillers ' day ' or on the date of the release of the management by the Court of Wards.
In either case, the question for decision will be not whether the defendants were tenants on the date of the suit but the question would be whether they were or were not tenants in the past.
The question whether the defendants were tenants on July 28, 1956 or on May 11, 1958 was not an independent question but it was put forward by the defendants as a reason for substantiating their plea of statutory ownership.
In other words, the plea of tenancy on the two past dates was a subsidiary plea and the main plea was of statutory ownership and the jurisdiction of the Civil Court cannot therefore be held to be barred in this case by virtue of the provisions of section 70 of the Act read with the provisions of section 85 of the Act.
We are accordingly of the opinion that section 85 read with section 70 of the Act does not bar the jurisdiction of the Civil Court to examine and decide the question whether the defendants had acquired the title of statutory owners to the disputed lands under the new Act.
In this context, it is necessary to bear in mind the important principle of construction which is that if a statute purports to exclude the ordinary jurisdiction of a Civil Court it must do so either by express terms or by the use of such terms as would necessarily lead to the inference of such exclusion.
As the Judicial Committee observed in Secretary of State vs Mask & Co.(1) "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied.
" In our opinion, there is nothing in the language or context of section 70 or section 85 of the Act to suggest that the jurisdiction of the Civil Court is expressly or by necessary implication barred with regard to the question whether the defendants had become statutory owners of the land and to decide in that connection whether the defendants had been in the past tenants in relation to the land on particular past dates.
We are also of the opinion that the jurisdiction of the Civil Court is not barred in considering the question whether the provisions of the Act are applicable or not applicable to the disputed land during a particular period.
We accordingly reject the argument of Mr. Hathi on this aspect of the case.
(1) 67 I.A. 222, 236. 798 The next contention on behalf of the plaintiff is that the High Court was in error in referring to the Mamlatdar under section 85A of the Act, the issue whether "the defendants were tenants of the land in suit".
It was pointed out by Mr. S.T. Desai that the High Court had rejected the contention of the defendants that the tenancy was created on July 28, 1956 but the defendants were tenants only with effect from August 24, 1956.
The High Court has further found that there was no subsisting tenancy on May 11, 1958 when there was a cessation of the management of the Court of Wards.
The suit was brought by the plaintiff on July 11, 1958 and the argument put forward on behalf of the plaintiff is that there was no plea on behalf of the defendants that there was any intervening act, event or transaction between May 11, 1958 and July 11, 1958 under which a fresh tenancy was created.
In other words, the argument on behalf of the plaintiff was that the only plea set up on behalf of the defendants was the plea of tenancy on July 28, 1956 which was the basis of the plea of statutory ownership.
It was said that there was no other plea of tenancy set up by the defendants subsequent to May 11, 1958 when the management of the Court of Wards ceased.
In our opinion, the argument is well founded and must be accepted as correct.
On behalf of the defendants Mr. Hathi referred to paragraphs 4 and 6 of the written statement of the first defendant dated September 18, 1958, but, in our opinion, both these paragraphs must be read together and the plea of tenancy in para 4 is based upon the: claim of the defendants that they were "lawful ' tenants of the suit lands and they got this right before August 1, 1956".
The plea of tenancy is therefore based upon the alleged lease of July 28, 1956 which is rolled up in the plea of substantive claim of statutory ownership.
On a proper interpretation of the language of paragraphs 4.
and 6 of the written statement we are satisfied that there is no independent plea of tenancy set up by the defendants as subsisting on ' the date of the suit and there was no issue which survived for being referred for the decision of the Mamlatdar under section 85A of the Act.
We are accordingly of the opinion that the High Court was in error in referring any fresh issue to the Mamlatdar but instead should have granted a decree to the plaintiff for recovery of possession the lands and also as to damages and mesne profits as decreed by the trial court.
For the reasons expressed we hold that Civil Appeal No. 312 of 1966 must be allowed and the judgment of the High Court dated February 5, 1963 should be set aside and the decree of the 5th Joint Civil Judge, Senior Division at Ahmedabad dated July 30.
1960 should be restored.
Civil Appeal No. 313 of 1966 is dismissed.
The plaintiff will be entitled to the costs of 799 this Court (one set of hearing fees) but we do not propose to make any order with regard to the costs incurred by the parties in the High Court.
The application filed by the defendants for leave to produce additional evidence in this Court is rejected.
C.A. 312 of 1966 allowed.
V.P.S. C.A. 313 of 1966 dismissed.

dataset_name: IN-Abs

summary/full:
The appellant succeeded to the estate consisting of the suit lands when he was a minor.
The State Government assumed management of the estate under the Bombay Court of Wards Act, 1905 and appointed the Collector as the manager of the estate.
While the estate was under the management of the Court of Wards on July 25, 1956.
the first respondent wrote to the Collector that the respondents were forming a cooperative society.
for carrying on agriculture, and that the suit lands were required for that purpose.
The Collector passed an order on July 28, 1956.
The kabuliyat was executed on August 24, 1956 by the respondents, though no cooperative society was formed.
The lease was therefore created on August 24, 1956 and according to the kabuliyat, expired on 31st May, 1957.
The Court of Wards withdrew its superintendence on May 11, 1958.
Under section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 every tenant shall be deemed to have become a statutory owner of the land on 1st April, 1957 known as the "tillers ' day". ' The Act was amended by Amending Act 13 of 1956 which came into force on August 1, 1956.
The effect of the amendment was that sections 1 to 87A were not applicable to an estate or land taken under the management of the Court of Wards.
Under section 88 of the Act, after cessation of the management by the Court of Wards, the provisions of the Act would apply to such estate.
Therefore, sections 1 to 87A of the Act were not applicable to the suit lands from August 1, 19 '56 to May 11, 1958.
The appellant filed a suit on July 11, 1958 for recovery of possession of the suit lands and mesne profits on the ground that the lease was fraudulently obtained by the respondents.
The respondents contended that they became statutory owners under section 32 or section 88 of the Act and that the civil court had no jurisdiction to hear the suit.
The trial court decreed the suit.
On appeal, the High Court held: (1) that the appellant had failed to establish that the lease was vitiated by fraud; (2) that the respondents had failed to establish that they had become statutory owners of the suit lands on or before the date of suit; (3) that the civil court had jurisdiction to decide whether the resportdents were tenants on the relevant dates namely July 28, 19 '56 or May 11, 1958, before the suit was filed, and whether they had become statutory owners, (4) but that the civil court had no jurisdiction to deal with the question as to whether the defendants were or were not tenants on the date of the suit that such question could only be decided by the Revenue authorities and that the question should be referred to the Mamlatdar accordingly.
786 In appeal to this Court, HELD: (1) On the evidence adduced, the High Court was right in its view that the lease in favour of the respondeats was not vitiated by fraud.
The evidence showed 'that the lease was granted with the knowledge that there was no cooperative society.
[795 A C] (2) (a) As during the period August 1, 1956 to May 11, 1958 sections 1 to 87A of the Act were not applicable to the suit lands, section 32 was not applicable, and therefore, the respondents could not have become statutory owners on the "tillers ' day", mentioned in section 32.
[795 G; 796 A] (b) As provided by the Kabuliyat itself the tenancy expired on May 31, 1957.
That is, there was no subsisting lease on May 11, 1958 which was the date of cessation of the management by the Court of Wards.
If there was no subsisting lease on May 11, 1958 the respondents were not tenants, and the High Court was right in its view that the respondents had failed to establish that they had become statutory owners of the land under section 32 by virtue of the first proviso to section 88.
[796 s E] (3) Section 70(b) of the Act imposes a duty on the Mamlatdar to decide whether a person is a tenant and not to decide whether a person was or was not a tenant in the past.
In the present case, the contention of statutory ownership of the respondeats was based on the question whether the respondents were tenants on July 28, 1956 or on May 11, 1958 and not whether they were tenants on July 11, 1958 the date of the suit.
The question would be therefore whether they were or were not tenants in the past.
Further, the question.
was put forward by the respondents not as an independent question but as a reason for substantiating their plea of statutory ownership.
Therefore, the plea of tenancy on the past two dates was a subsidiary plea and the main plea was of statutory ownership and the jurisdiction of the civil court cannot be held to be barred by virtue of the provisions of sections 70 and 85, as there is no exclusion, expressly or by necessary implication, of the jurisdiction of the civil court to decide the question whether the respondents had acquired title as statutory owners.
Nor is the jurisdiction of the civil court barred for considering the question whether the provisions of the Act are or are not applicable to the suit land during a particular period.
[796 H; 797 A E; G H] Secretary of State vs Mask & Co., 67 I.A. 222, 236, referred to.
(4) In the written statement, the only plea set up on behalf of the respondents Was the plea of tenancy on July 28, 1956 which was the basis of statutory ownership.
The High Court found that the tenancy was created on August 24, 1956 and that the tenancy did not subsist on May 11.
1958 when there was a cessation of the management by the Court of Wards.
There was no plea of any intervening act or transaction between May 11, 1958 and July 11, 1958, the date of suit, under which a fresh tenancy was created and which was subsisting on the date of the suit.
There was thus no issue which survived for the decision of the Mamlatdar under section 85A of the Act.
Therefore, the High Court should have decreed the suit and was in error in referring the issue whether the respondents were tenants of the land on the date of suit to the Mamlatdar.
[798 A G]


judgement:
Appeal No. 1016 of 1966.
Appeal by Special 'leave from the order dated October 15, 1965 of the Board of Revenue, U.P. in Revision No. 2 E of 1964 Saharanpur.
J.P. Goyal ' and S.M. Hanif, for the appellants.
S.V. Gupte, G.D. Gupta and B. P. Maheshwari, for respondents Nos. 1 to. 3.
delivered by Vaidialingam, J.
The question that 'arises for consideration in this appeal, by special leave:, is as to whether the bhumidhari rights and trees belonging to the appellants can be proceeded against and sold for realisation of the: debts due to the respondents under the U.P.
Encumbered Estates Act, 1934 (Act XXV of 1934) as amended (hereinafter referred to as the Encumbered Estates Act).
The contention of the appellants iS that they cannot be sold, whereas, according to the respondents, they can be sold.
The predecessors in interest of the appellants were Landlords owning immovable properties, including agricultural land, trees, groves and well, situate in the various villages in the District of Saharanpur.
They were very heavily indebted, the debts being both secured and unsecured, payable by them to the creditors.
The respondents were among the secured creditors to whom large amounts were due.
On or about March 26, 1936 the appellants predecessors in interest filed an application under section 4 of the Encumbered Estates Act to the Collector for determination of their debts.
As required by section 6 of the said Act, the Collector forwarded this application to the Special Judge, Saharanpur, appointed under s.3 of the said Act and the said application was registered as Suit No.23 of 1936.
After complying with the other formalities under the Encumbered Estates Act, the Special Judge, on December .23, 1936 passed a decree under s.14(7).
of the Encumbered Estates Act.
The said decree was amended on 568 January 23, 1938.
The Special Judge granted a decree in favour of respondents 1 ' to 3 for two sums= of Rs. 36,000/. and Rs. 25,000/ on loans secured over properties mentioned in Schedules A, B and C of the decree.
They were also granted a decree for Rs. 9,000/ which was the decree debt for the payment of which the mother of the 'daughter had stood surety.
Over and above these amounts, the respondents were given a decree for Rs. 3,500/ for an unsecured debt.
The liquidation proceedings which were started under the Encumbered Estates Act and were pending before the Collector were stayed till 1954 in view of the contemplated legislation for abolition of zamindari, the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) (hereinafter referred to as the Abolition Act), and the appellant 's estate vested on July 1, 19 '52 in the State by virtue of the notification issued under section 4( 1 ) of that Act.
The liquidation proceedings pending before the Collector under the Encumbered Estates Act were reopened in the year 1955.
On May 15, 1959 the respondents made an application to the ASsistant Collector of Saharanpur (to whom the powers of the Collector, for the purposes of section 24 of the Encumbered Estates Act had been delegated) to recover the amounts decreed to them by the Special Judge by proceeding against the bhumidhari rights, and trees belonging to the appellants and to auction the same under section 24 of the Encumbered Estates Act.
The appellants filed objections, briefly, to the following effect.
The decree holder iS not entitled to proceed against the bhumidhari rights or the trees in their possession.
The decree holder 's debts are secured debts and they are entitled only to three fourths of the Zamindari Abolition and Rehabilitation Grants and that they are not entitled to 'get anything more under the decree. ' The list forwarded by the Special Judge does not refer to any of their rights now sought to be attached and therefore no execution can be levied against such properties.
Bhumidhari rights accrued only after the 'abolition of the zamindari and, as such, they cannot be proceeded against for realisation of the decreed amounts.
The Assistant Collector, by his order dated February 21, 1961 upheld the objections of the appellantsdebtors and ' dismissed the 'application of the decree holders res pondents for sale of bhumidhari and other rights in the properties mentioned by them.
The basis.
on which the Assistant Collector declined to allow execution to proceed was that bhumidhari rights represent the proprietary rights which the zamindars, on the abolition of the estate, were allowed to retain, by the Abolition Act.
In substance, those rights were the original proprietary rights, though a new name of bhumidhari rights was given to them.
The respondents challenged this order of the Assistant Collector in appeal, under section 45(3) of the Encumbered Estates Act, 569 before the Commissioner, Meerut Division, who by his order dated March 24, 1965 ' reversed the order of the ASSistant Collector and held that the trees and bhumindhari rights of the appellants could be sold in execution of the decree.
The view of the Commissioner is that such rights are rights other than proprietary rights.
The prOhibitiOn contained in the Encumbered Estates (Act is only 'regarding the sale of proprietary rights and bhumidhari fights not being proprietary rights could be proceeded with in execution. ' The appellants filed a revision, under section 46(2) of the Encumberedestates Act, before the Board of Revenue.
The two contentions, that were raised by the appellants, before the Board of Revenue were: (i) bhumidhari rights are proprietary rights in land and as such, no execution can levy against such rights; (ii) the bhumidhari rights sought to be proceeded against have not been mentioned in the list of properties sent by the Special Judge to.
the Collector under section 19 of the Encumbered Estates Act and therefore they cannot be sold in liquidation proceedings under Chapter V of the Encumbered Estates Act.
Both these contentions were rejected by the Board of Revenue who, by their order dated October 15, 1965 confirmed the order of the Commissioner and dismissed the appellant 's revision petition.
The Board of Revenue has held that bhumidhari rights are not proprietary rights and so long as there is no prohibition under the Abolition Act to proceed against them, the decree holder was entitled to attach and sell those rights.
The Board further held that the properties have been mentioned in the list sent by the Special Judge and the nature of the rights, viz., bhumidhari rights, could not have been mentioned on the date when the list was sent because such rights were obtained by the appellants long thereafter.
It is against this order of the Board that the appellants have come up to this Court in appeal.
Mr. Goyal, learned counsel for the appellants, urged that the decree obtained by the respondents.
under the Encumbered Estates Act, as provided under section 14(8) thereof, 'shall not be executable within U.P. except under the provisions of this Act ' Section 19 of the Encumbered Estates Act provides for the Special Judge informing the Collector of the nature and extent of the property mentioned in the notice under section 11, which he has found to be liable for attachment and sale in satisfaction of the debts of the applicant.
Section 24 provides for the Collector realising the value of such of the debtor 's property other than the proprietary rights in land as shall have been reported by the Special Judge, under the provisions.
of sub section
(2) 'of section 19 to be liable to attachment or sale.
Having due regard to these provisions, the counsel urged that the bhumidhari rights granted to the 570 appellants under the Abolition Act, having not been admittedly reported by the Special Judge, cannot be proceeded against in execution under the Encumbered Estates Act.
The counsel further urged that bhumidhari rights are special and new rights given under the Abolition Act to the former proprietors of the estate: which vested in the State.
Those rights cannot be proceeded against for realisation of the debts due to the respondents.
Counsel referred us to the material provisions of the Encumbered Estates Act and the Abolition Act in support of the above contentions.
Mr. Goyal also urged that the rights of the respondents, if any, are only to proceed against the compensation awarded under the Abolition Act.
In support of his contention that the bhumidhari rights are new and special rights, Mr. Goyal referred us to two decisions of this Court in Rana Sheo Ambar Singh vs Allahabad Bank Ltd., Allahabad(1) and Krishna Prasad vs Guari Kumari Devi(2).
On the other hand, Mr. Gupte, learned counsel for the respondents, urged that the respondents are executing the decree strictly in accordance with the provisions of the Encumbered Estates Act.
In this connection, counsel pointed out that whatever rights of the respondents, as mortgagees, originally might " have been, the decree passed under the Encumbered Estates Act, under section 14(7)(b)(i), in favour of the respondents is only a simple: money decree.
Therefore the provisions dealing with the rights of a mortgagee in respect of an estate under the Zamindari Abolition Act dO not have any material bearing.
He also referred to section 18 of the Encumbered .Estates Act to show that the effect of a decree of a Special Judge under section 14(7) is to extinguish the 'previously existing.
rights of mortgage or security.
The properties which are: sought to be proceeded against are clearly referred to by the Special Judge in the decree sent to the Collector under section 19 of the Encumbered Estates Act.
Under cl.
(b) of section 19 (2) it was only necessary to state the nature and extent of the property and the Special Judge has informed the Collector of those particulars.
SeCtion 24 gives power to the Collector to realise the value of such.
of the debtors ' property as has been reported by the Special Judge under sub section
(2) of section 19.
It is against such property that the respondents are proceeding against for realisation of their dues.
Mr. Gupte further urged that the fact that at the time when execution is levied, the right of the appellants is the bhumidhari rights in those identical properties is not of any consequence.
The decisions.
relied on by Mr. Goyal, the counsel points out, had no occasion to deal with the rights of a creditor under the Encumbered Estates Act.
He further pointed out that there is nO provision in the Abolition Act.
barring attachment and sale of bhumidhari rights.
The counsel (1) [1962] 2S.C.R. 441.
(2) [1962] Supp.
3 S.C.R. 571 finally urged that the main purpose of the Encumbered Estates Act was to help to preserve the proprietary rights of land owners in U.P. and at the same time to evolve a machinery to liquidate their rights.
It could not be the intention of the Legislature on the one hand tO preserve property rights in land even though it is encumbered with heavy debts and on the other to provide the creditors no machinery for realisation of their dues.
It will be seen from the rival contentions set out above that the main question that arises for consideration is as to whether the bhumidhari rights of the appellants obtained by them under the Abolition Act can be proceeded with for realisation of the decree obtained by the respondents under the provisions of the Encumbered Estates Act.
This takes us to a consideration of the material provisions of the Encumbered Estates Act and the Abolition Act.
The object of the Encumbered Estates Act is to provide for relief of encumbered estates in U.P. Section 2 defines among other expressions, 'debt ', 'land ' and 'landlord ' Section 3 deals with the appointment of a Special Judge.
Section 4 provides for the landlord who is subject to or whose immovable property or any part thereof is encumbered with private debts,.
for making an application within the time mentioned therein to the concerned Collector requesting that the provisions of the Encumbered Estates Act be applied to him.
The landlord has to state in the application the amount of private debts as also his public debts, both decreed and undecreed.
Section 6 deals with the transmission to the Special Judge of the application received by the Collector under section 4.
The Collector has also to inform the Special Judge of any public debts outstanding against the landlord.
Section 7 deals with the consequence of acceptance of an application by the Collector.
In brief, all pending proceedings excepting proceedings by way of appeal or revision stand stayed and all attachments and other execution processes are declared null and void.
No fresh suit or other proceeding excepting an appeal or revision against a decree or order can be instituted in any civil or revenue Court.
Section 8 deals with the Special Judge who has received an application under section 6 calling upon the applicant landlord to submit a written statement containing full particulars regarding the public or private debts to which the landlord is subject or his immovable property is encumbered, the nature and extent of the landlord 's proprietary rights in land, the nature and extent of his property liable to attachment and sale under section 60, C.P.C., and the names and addresses of his creditors.
Under section 9, the Special Judge has to publish in the Gazette a notice calling upon all persons having claims in respect of private debts, both decreed and undecreed, against the landlord or his property.
Section 10 provides that every claim made under Sup.
CI/70 6 572 section 9 should contain full particulars of the claim and also to the extent possible the nature and extent of the landlord 's propfietory rights in land as also the nature and extent of the landlord 's property other than proprietary rights.
Section 11 requires the Special Judge to publish a notice specifying the property mentioned by the landlord under section 8 and by a claimant under section 10.
It also provides for any person having any claim to the property mentioned in such notice of making an application to the Special Judge specifying his claim and for investigation by the Special Judge whether the property specified in the claim or any part thereof is liable to attachment, sale or mortgage in satisfaction of the applicant.
Section 14 empowers the Special Judge, after giving the necessary notices in that behalf, to examine each claim and determine the amount, if any, due from the landlord to the claimant on the date of the application under section 4.
Section 14 (7) (b) provides for the Special Judge, on finding that an amount is due to the claimant, to pass a simple money decree.
Sub section
(8) states that every decree passed under sub section
(7) shall be deemed to be a decree of a Court of competent jurisdiction but shall not be executable within U.P. except under the provisions of the Encumbered Estates Act.
Section 18, dealing with the effect of the finding of the Special Judge states that the existing relationship between the debt and the property which is charged or mortgaged for that debt are extinguished and the decree that is given by the Special Judge is stated to substitute for the previous rights a right to recover the amount of the decree in the manner and to the extent thereafter provided.
It has already been noted that under section 14 it is only a simple money decree that is passed by the Special Judge.
Section 19 provides for the transmission of the decrees passed by the Special Judge to the Collector for execution in accordance with the provisions of Chapter V.
The Special Judge is also to inform the Collector of the nature and extent of the property mentioned in the notice under section 11 which he has found to be liable to attachment or sale in execution of the debts of the applicant.
In the case before us there is no con troves that the Special Judge has complied with this provision.
Chapter V deals with execution of decrees and liquidation of debts and section 24 provides for the Collector to whom the decree has been transmitted by the Special Judge under section 19 to proceed to realise the value of such of the debtor 's property other than proprietary rights in land as shall have been reported by the Special Judge under the provisions of section 19(2) to be liable to attachment and sale.
In this connection, it may be stated that the question that will arise for consideration is whether bhumidhari rights are 'the debtor 's property other than proprietary rights in land '.
If they are not proprietary rights in land then 573 under this section they are liable to be sold under auction because the nature and extent of the property has been mentioned by the Special Judge in his report under section 19(2) to be liable to attachment and sale.
From the provisions referred to above, the Scheme of the Encumbered Estates Act appears to be as follows.
Any landlord who is encumbered with private debts can make an application to the prescribed authority for applying the provisions of that Act.
The Special Judge, after making the necessary publication, calls for claimants against the landlord and also ascertains the property of the debtor.
He then examines the claimants and determines the amounts of debt due and passes a decree under section 7 of the Encumbered Estates Act if amounts are found to be due; but even though the amount may have been charged on the property, the Special Judge passes only a simple money decree.
Under section 14(8) the decree so passed is deemed to be a decree of a Civil Court of competent jurisdiction and it shall not be executable except under the provisions of the Encumbered Estates Act.
Once the matter goes within the jurisdiction of the Special Judge the existing relations between the debt and the property which is charged or mortgaged for that debt are extinguished and the decree is only a simple money decree and not a mortgage decree.
The mode of execution is then described in section 19 under which the Special Judge transmits the decrees for execution to the Collector informing the latter among other matters of the nature and extent of the property which he has found to be liable to attachment or sale in satisfaction of the debts.
The Collector, under section 24, has to realise the value of the debtor 's property other than proprietary rights in land.
In the case before us we have already referred to the various stages leading up to the respondents obtaining a decree and the decree being transmitted for execution, as well as the final order of the Board of Revenue, accepting the right of the respondents to levy execution against the bhumidhari rights in the land.
Under the Abolition Act, there is no controversy, that the estate of the appellants vested in the State on July 1, 1952 by virtue of the notification issued under section 4.
Section 3 defines the various expressions.
Section 4 deals with vesting of estates in the State on the issue of a notification thereunder.
Section 6 deals with the various consequences of the vesting of an estate in the State.
Clause (h) of section 6 provides that no claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by a mortgage of such estate or part thereof, shall, except as provided in section 73 of the Transfer of Property, 1882, be enforceable against the interests of such third person.
Section 574 18 deals with settlement of certain items with intermediaries of cultivators as bhumidhars.
It is the claim of the appellants that under this section they have been given rights of a bhumidhar in respect of the properties which are now sought to be sold by the respondents in execution.
Section 199 provides that no bhumidhar shall be liable to ejectment.
We have not referred very elaborately to the provisions of the Abolition Act or its scheme, because these have been considered in the previous judgment of this Court in Rana Sheo Ambar Singh 's Case(1).
It is enough to state that no provision in the Abolition Act prohibiting the attachment and sale of the bhumidhari rights have been brought to our notice by Mr. Goyal.
In Rana Sheo Ambar Singh 's Case(1) the facts were briefly as follows.
The proprietor of an estate had executed a simple mortgage of his proprietary interest in the estate consisting of 67 villages to the Allahabad Bank Ltd. The Bank obtained a decree and while execution proceedings were pending, the zamindan Abolition Act was passed by virtue of which the estate vested in the State and, consequently, the decree holder Bank could no longer sell the rights of the proprietor in the 67 villageS, mortgaged to it.
The Bank made an application to the executing Court to realise the amounts due to it by proceeding against the rights of the judgment debtor as remained in him after the coming into force of the Abolition Act.
One of the rights of the judgment debtor which were sought to be proceeded against was the bhumidhari rights created under section 18 of the Abolition Act.
The case of the Bank was that the judgment debtor 's proprietary rights in grove land and sir and khudkast lands had been continued under section 18 of the Abolition Act and that, in any event, they constituted substituted security in place of the original proprietary rights mortgaged.
The judgment debtor raised objections to execution being taken against his bhumidhari rights.
The High Court upheld the view of the executing Court that execution could proceed against the bhumidhari rights.
This Court reversed the judgment of the High Court and held that the proprietary rights in sir, khudkast lands and groves vested in the State on the issue of a notification under section 4.
This conclusion was reached after rejecting the contention of the decree holder that the proprietary rights in sir, khudkast and grove lands did not vest in the State and that those rights were continued in the landlord under section 18.
This Court further held that the Legislature was creating a new right under section 18 and the old proprietary right in sir, khudkast and intermediaries ' grove land had already vested in the State under section 6, and further observed, at p. 448: "We are of opinion that the proprietary rights in sir and khudkast land and in grove land have vested (1) [1962] 2 S.G.R. 441 575 in the State and what is conferred on the intermediary by s.18 is a new right altogether which he never had and which could not therefore have been mortgaged in 1914.
" In the later part of the judgment it was further held that the bhumidhari rights created under section 18 are not compensation and that they are special rights conferred on the intermediary by virtue of his cultivatory possession of lands comprised therein and that the decree holder cannot enforce his rights under the mortgage by sale of the bhumidhari rights created in favour of the landlords under section 18, so far as sir, grove land and khudkast lands are concerned and that he can only follow the compensation money under section 6(h); The court finally rejected the contention that bhumidhari rights can be followed as substituted security.
It will be seen that in the decision cited above this Court was considering the rights of a mortgagee as such to proceed against the bhumidhari rights and it was in that connection, in view of the specific provision under section 6(h) of the Act and the nature of the new rights created under section 18, that this Court held that the mortgagee was not entitled to levy execution against the bhumidhari rights.
The said decision also lays down that the bhumidhari rights granted under s.18 were new rights created by the legislature and the old proprietary fight in the land had already vested under section 6 in the State.
It is also clear from the said decision that bhumidhari rights created under s.18 are not compensation and that they are special rights conferred on the intermediary by virtue of his cultivatory possession of the lands comprised therein and bhumidhari rights cannot also be considered as substituted security.
The point to be noted, and which has been emphasised in that decision, is that all proprietary rights in the land had vested in the State and that no part of the proprietary rights remained in the landlord after the vesting of the estate in the State.
It is further to be seen from that decision that the bhumidhari rights are no part of proprietary rights which the landlord had, prior to vesting.
In Krishna Prasad 's Case(1) the question that arose for consideration was whether under the Bihar Land Reforms Act, 1950 (hereinafter called the Bihar Act) it was open to a mortgagee decree holder of an estate which ' had vested in the State to levy execution personally against the mortgagor by attachment and sale of other properties of the mortgagor.
It was held by this Court, after a review of the provisions of the Bihar Act which were more or less substantially the same as those of the Abolition Act, that the compensation payable on acquisition of (1) [1962] Supp.
3 S.C.R. 562.
576 a mortgaged estate had been made a kind of substituted security against which the mortgage claim could be enforced under the Bihar Act.
It was further held that execution, by way of a personal decree, could only be done eventually if the realisation from the compensation amount was found insufficient to satisfy the decree.
We may also refer to the decision of this Court in Shivashankar Prasad Sah vs Baikunth Nath Singh(1).
That decision had, again, to deal with the rights of a mortgagee decree holder to proceed against the Bakasht land of the judgment debtors and that right had to be decided under the Bihar Act.
Section 6 of tiffs Act, corresponds more or less to section 18 of the Abolition Act.
In dealing with the scheme of the Bihar Act and in particular, the effect of section 6 this Court observed: "Reading sections 3, 4 and 6 together, it follows that all Estates notified under s.3 vest in the State free of all encumbrances.
The quondum proprietors and tenureholders of those Estates lose all interests in those Estates.
As proprietors they retain no interest in respect of them whatsoever.
But in respect of the lands enumerated in section 6 the State settled on them the rights of raiyats.
Though in fact the vesting of the Estates and the deemed settlement of raiyats in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free of all encumbranches.
Then followed the deemed settlement by the State of raiyat 's rights on the quondum proprietors.
Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within section 6.
" Finally this Court held that the mortgagee decree holder 's only remedy was to establish their claim under the Bihar Act and get compensation and that they cannot levy execution against the Bakasht land.
In our opinion, none of the decisions referred to above, assists the appellants.
Those decisions were directly concerned with the rights of the mortgagees as such to levy execution either as against the bhumidhari rights.
or personally against the mortgagor or against his other properties.
The right to levy execution was claimed by the decree holders as mortgagees after the estate mortgaged to them had vested in the State, under the relevant Acts.
Under those circumstances, this Court held that the (1) Civil Appeal No. 368 of 1966 decided on 7. 3. 1969.
577 mortgagees ' remedy was only to proceed against the compensation money as provided under the material provisions of the statute governing the same.
None of those decisions had occasion to consider the question that now arises for consideration before us, viz., the rights of a decree holder under the Encumbered Estates Act.
We have already referred to the nature of the decree that has been obtained by the respondents.
Though at an earlier stage they were mortgagees, it was a simple money decree that was granted to them under section 14(7) of the Encumbered Estates Act and their rights as against the mortgage securities had been extinguished under s.18 of the Encumbered Estates Act.
In this view, s.6(h) of the Abolition Act, relied on by Mr. Goyal, does not assist him.
It is no doubt true that the decree obtained by the respondents shall not be executable except under the provisions of the Encumbered Estates Act.
The nature and the extent of the property liable to attachment and sale in satisfaction of the debts due to the respondent, as required under s.19(2)(b) of the Encumbered Estates Act have all been furnished in the decree granted under s.14(7) by the Special Judge and transmitted to the Collector under s.19.
Therefore, when the respondents approached the Assistant Collector on May 15, 1959 with an application to recover their debts from the bhumidhari rights of the appellants, they were only in the position of holders of simple money decrees.
If so, execution can be levied normally from any property or rights which are liable to be attached or sold unless there is any prohibition imposed by the statute.
Section 18, after extinguishing the rights in the property that may have been held under a mortgage or security, specifically provides that ' where any decree is given by the Special Judge they are in substitution of the original rights of a mortgagee or security holder and the decree holder has got the right to recover the amount of the decree in the manner and to the extent prescribed.
Section 24 gives a right to the decree holders to recover their dues from the property of a debtor other than proprietary rights in land.
Therefore the question is whether the bhumidhari rights conferred on the appellants under section 18 of the Abolition Act are property other than proprietary rights in land.
If they are rights other than proprietary rights, they can be proceeded against under section 24 read with section 18 of the Encumbered Estates Act.
The decisions of this Court, referred to above, clearly lay down that the proprietary rights of the landlord in the land vest in the State on the passing of the relevant Abolition Acts.
It has also been emphasised in Rana Sheo Ambar Singh 's Case(1) and as is also clear from section 6 of the Abolition Act that all rights, (1) ; 578 title and interest of all the intermediaries in every estate shall cease and be vested in the State, on the issue of a notification under section 4 of the Abolition Act.
If so, it follows that after the estate vested in the State, the appellants had no proprietary rights left in them; and the bhumidhari rights, as held by this Court, being new rights created for the first time in favour of the appellants under section 18 of the Abolition Act and not proprietary rights, the respondents are entitled to proceed against those rights under section 24 of the Encumbered Estates Act.
Mr. Goyal next urged that the bhumidhari rights have not been mentioned in the decree granted under section 14(7) nor have they been reported by the Special Judge under section 19(2) as being liable to attachment and sale as is necessary under section 24.
True it is that these rights, as such, have not been mentioned.
But a perusal of section 19(2)(b) clearly shows that it was not necessary that the interest or rights of the debtor should be mentioned in the decree, because the requirement is only regarding the nature and extent of the property and that has been mentioned in the decree granted in favour of the respondents by the Special Judge under section 14(7), and it has been reported to the Collector under section 19(2).
If so, the requirements of sections 19 and 24 have been complied with.
Hence it follows that this contention of Mr. Goyal cannot be accepted.
There is also another reason for rejecting the said contention.
Bhumidhari rights have been created in favour of the appellants only on July 1, 1952, the date of vesting, on the issue of a notification under section 4 of the Abolition Act, whereas the amended decree in favour of the respondents has been passed under s.14(7) as early as January 23, 1938.
When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than proprietary rights in land and when there is no prohibition in the Abolition Act against execution of decrees obtained under the Encumbered Estates Act against such rights, it follows that the decree holder respondents are entitled to proceed against the bhumidhari rights and therefore the appellate order of the Additional Commissioner, dated March 24, 1965 and the revisional order of the Board of Revenue, dated October 15, 1965 upholding the right of the respondents in this regard, are correct.
The further question that arises is whether the respondents are entitled to levy execution against the trees in the possession of the appellants in execution of their decree.
No doubt, the general objection that was taken by the appellants before the Assistant Collector was that the groves formed part of the sir property and .
therefore the question of their being auctioned does not arise and that the groves do not form part of the list mentioned in the decree passed by the Special Judge.
On the other hand, according to.
579 the respondents, the trees never vested in the State under the Abolition Act and, as the appellants continued to be the owners of the same, execution can be levied against the trees.
The contention of the appellants that the trees have not been mentioned in the list need not detain us because the amended decree passed by the Special Judge clearly refers to trees standing on the lands described in the Schedules.
Then the question is whether the trees belong to the respondents.
Section 3(26) of the Abolition Act states that the words and expressions, mentioned therein and which have not been defined in the Act but used in the U.P. Tenancy Act, 1939 shall have the meaning assigned to them in the latter Act.
Two, among the various expressions referred to in section 3(26) are 'grove ' and 'grove holder '.
Therefore we have to look into the U.P. Tenancy Act to find out the meaning of the expression 'grove ' Section 3(6) of the U.P. Tenancy Act, 1939 (U.P. Act XVII of 1939) defines the expression 'grove land ' as follows: "3(6). 'grove land ' means any specific piece of land in a mahal or mahals having trees planted thereon in such numbers that they preclude or when full grown will preclude, the land or any considerable portion thereof from being used primarily for any other purpose and the trees on such land constitute a grove.
" From the above, it will be seen that 'grove ' is something different ' from 'grove land ' because the definition says that the trees on such land, viz., 'grove land ', constitute a 'grove '.
Section 6 of the Abolition Act, dealing with the consequences of the vesting of an estate in the State, among other things, states in cl.
(a): "6(a) all rights, title and interest of all the intermediaries (i) in every estate in such area including land (cultivable or barren), grove land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water channels, ferries, pathways, abadi, sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which clauses (a) to (c) of sub section (1) of Section 18 apply), and (ii) in all sub soil in such estates including rights, if any, in 1 mines and minerals, whether being worked or not, shall cease and be vested in the State of Uttar Pradesh free from all encumbrances.
" 580 Clause (a), referred to above, deals with grove lands and trees, separately.
The grove land referred to above, will be the grove land defined in section 3(6) of the U.P. Tenancy Act.
Clause (a) also refers to the right, title and interest of intermediaries in trees ceasing and vesting in the State.
From among the trees, such of the trees as constitute a grove have been excluded from the operation of cl.
(a) of section 6.
Therefore, the excluded category of trees forming the grove cannot be considered to have vested in the State on the abolition of the estates.
Section 18, which creates bhumidhari rights deals, among other items, with "intermediary 's grove".
The expression "intermediary 's grove" is defined in section 3 (13) of the Abolition Act as grove land held or occupied by an intermediary as such.
We do not find any material on record to draw an inference that the appellant raised any contention that the trees constituted an 'intermediary 's grove '.
From what is stated above, it will be seen that the trees constituting the grove, have not vested in the State and therefore they could not have formed the subject of creation of bhumidhari rights under section 18.
Therefore the trees constituting the grove, being the debtor 's property, are liable to be proceeded with in execution under section 24 of the Encumbered Estates Act.
Even if it is to be held that the appellants have got bhumidhari rights over the trees constituting the grove, as already held by us, these rights can be proceeded with under section 24 of the Encumbered Estates Act.
Therefore, from either point of view, the trees constituting the grove are liable to be proceeded against, for realisation of the decree by the respondents.
The result is the appeal fails, and is dismissed with costs.
V.P.S. Appeal dismissed.

summary/full:
The predecessors in interest of the appellants were landlords owning an estate including agricultural land, trees, groves etc., in U.P., and were heavily indebted to the respondents.
Most of the debts were secured.
On the application of the landlords proceedings were taken under the U.P.
Encumbered Estates Act, 1934, and a decree was passed under section 14(7) of the Act in favour of the respondents in 1938.
The nature and extent of property liable to attachment and sale, as required by section 19(2)(b) of the Act, were furnished to the executing authority.
By virtue of a notification under the U.P. Zamindari Abolition and Land Reforms Act.
1950, the estate vested in the State, and new rights, namely, bhumidhari rights in the lands in the estate, were created in 1952 in favour of the appellants who were the successors in interest of the landlords.
In 1959.
the respondents applied under section 24 of the Encumbered Estates Act to recover the amount decreed to them, by proceeding against the bhumidhari rights and trees belonging to the appellants.
On the question whether: (1 ) the bhumidhari rights, and (2) the trees, could be proceeded against, HELD: (1) Though the respondents were mortgagees their rights as such were extinguished under the Encumbered Estates Act and the decree in theft favour under the Act was only a simple money decree which was not executable except under the provisions of the Act.
Under section 24 execution can be levied from any property or rights, other than proprietary rights in land, which are reported under section 19 as liable to be attached and sold.
On the passing of the U.P. Abolition Act the proprietary rights of the landlords in the land vested in the State and thereafter, the appellants had no proprietary rights left in them.
The bhumidhari rights being new rights created for the first time in favour of the appellants under the Abolition Act, are not proprietary rights.
In the present case, the requirements of sections 19 and 24 have been complied with, even though the bhumidhari rights were not mentioned as being liable to attachment and sale because.
, (i) under section 19(2)(b) the requirement is only to report the nature and extent of the property liable to attachment and sale and not the interests or rights of the debtor in the property; and (ii) the decree under the Encumbered Estates Act was passed in 1938 while the bhumidhari rights were created only in 1952, and hence, could not be specifically mentioned in the decree.
When the Encumbered Estates Act permits the respondents to levy execution against the property of the debtor other than the proprietary rights in land, and when there is no prohibition in the Abolition Act against execution of a, decree obtained under the Encumbered Estates Act, against the bhumidhari rights, the respondents were entitled to proceed against such rights.
[575 A B; 577 B E; G; 578 A.F] 567 Rang Sheo Am,bar Singh vs Allahabad 'Bank Ltd. ; , followed.
(2) Unders; 6(a) of the Abolition Act and section 3.(6)of the U.P. Tenancy Act, 1939. ',the right title and interest of intermediaries in trees and grove land, but not in trees constituting a grove, cease, and vest in the State.
Since the trees constituting a grove have not vested in the State ,and could not have formed the subject of creation of bhumidhari rights they are the debtor 's property and, are liable to be proceeded against in execution under section 24 of the Encumbered Estates Act.
Even if the appellants got bhumidhari rights over the trees constituting the grove, they could be proceeded against; because, bhumidhari rights could be proceeded against in execution.
[580 B, C E]