# PATEL BHUDER MAVJl ETC v. JAT MAMDAH KALAH (DECEASED) THROUGH L. Rs. JAT SAHEB KHAN MAMDAn ETC

- **Citation:** [1969] 3 S.C.R. 690
- **Court:** Supreme Court of India
- **Decided:** 1969-02-13
- **Case number:** Civil Appeals Nos. 123 and 124 of 1966
- **Bench:** M. Hidayatullah, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/patel-bhuder-mavjl-etc-v-jat-mamdah-kalah-deceased-through-l-rs-jat-saheb-khan-4629
- **Pages:** 8

## Headnote

Saurashtra Agricultural Debtors Relief Act Mortgage with possessionrMorlgagor applying for adjustment..:_Land declared Khalsa under the Land
Reforms Act-Effect of-Saurashtra Land Reforms Act, (Sau, 25 ol
1951)-Land declared Khalsa-Rights of Mortgagor whether extinguished.
The Respondent-Girasdars in the State of. Saurashtra mortgaged their
lands with possession with the appellants, who paid the land revenue and
other dues.
By the Saurashtra Land Reforms Act (25 of 1951), the
rights of the Girasdars were extinguished, and the tenants of Girasdara became occupants di land held by them. The Land Reforms Act provided
for the Mamlatdar to allot land to a Girasdar for personal cultivation .. The
special Mamlatdar declared the lands in dispute to be Khalsa and full assessment had to be taken, and that there was no need to grant any occupancy
rights. The Saurashtra Agricultural Debtors Relief Act, 1954 was enacted
scaling down the debts and for providing for restoration of their property
to the debtors. Thereupon the respondents applied for adjustment of their
debt to the Court having jurisdictioo under the Debtors Relie't Act. ~
appellants relied on the order of the Special Mamlatdar declaring the land•
as Khalsa and contended that the lands having been declared as JChalro,
the respondents had lost their rights therein.
HELD : The rights· of the respoodents-Girasdars in this case were not
extinguished under the Land Reforms .Act and it was open to the court
exercising jurisdiction under the Debtors Relief Act to scale down the debt
and provide the restoration of the land iit possession of the mortgagees to
the mortgagors on taking fresh · account between the parties and directing
payments by one party to the other.
.
The Saurashtra Land Reforms Act aimed at regulating the relationship
O'f persons in pos.itioo of Landholders and their tenants, and to enable the
tenants to become the real owners of the soil under direct tenancy from
the State. It wa, not meant to extinguish or affect the rights of Landholders as mortgagors unless the persons in occupation had become tenants
either by contract or by operation -0f law.
A
B
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D
E
F
No adjudication Of the rights of the debton and creditors inter se was
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done.
All that the Special Mamlatdar decided and had iuriSdicti<>n to
decide under the Land Reforms Act was whether the respondents could be
given occupancy certificates or allotted any land Gharkhed and the Special
Mamlatdar merely ordered that the lands being Khalsa full assessment had
to be taken in respect of them and there was no need to grant occupancy
rights. In order to get such occupancy rights the appellants bad ·to show
that they had become tenants which they could not be
under
H
the provisions of s. 6 of the Land Reforms Act. The fact that they
had all along paid the revenue and other dues to the State, if any, would
.not clothe them with tenancy rights. That apart, it has not been shown
that the respondents were awarded any compensation ill respect of the
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MAVJI v. MAMDAJI (Mitter, /.)
691
Khalsa lands given in mortgage to the appellants. The occupancy certifl..
cates if any, given by the Special Mamlatdar to the appellants could nol
unde; the provisions of the Land Reforms Act extingui•h the title of tho
respondents. [695 H; 696 HJ

## Text

PATEL BHUDER MAVJl ETC.
v.
JAT MAMDAH KALAH (DECEASED) THROUGH L. Rs.
JAT SAHEB KHAN MAMDAn ETC.
February 13, 1969
[M. HIDAYATULLAH, C.J. AND G. K. MITTER, JJ.]
Saurashtra Agricultural Debtors Relief Act Mortgage with possessionrMorlgagor applying for adjustment..:_Land declared Khalsa under the Land
Reforms Act-Effect of-Saurashtra Land Reforms Act, (Sau, 25 ol
1951)-Land declared Khalsa-Rights of Mortgagor whether extinguished.
The Respondent-Girasdars in the State of. Saurashtra mortgaged their
lands with possession with the appellants, who paid the land revenue and
other dues.
By the Saurashtra Land Reforms Act (25 of 1951), the
rights of the Girasdars were extinguished, and the tenants of Girasdara became occupants di land held by them. The Land Reforms Act provided
for the Mamlatdar to allot land to a Girasdar for personal cultivation .. The
special Mamlatdar declared the lands in dispute to be Khalsa and full assessment had to be taken, and that there was no need to grant any occupancy
rights. The Saurashtra Agricultural Debtors Relief Act, 1954 was enacted
scaling down the debts and for providing for restoration of their property
to the debtors. Thereupon the respondents applied for adjustment of their
debt to the Court having jurisdictioo under the Debtors Relie't Act. ~
appellants relied on the order of the Special Mamlatdar declaring the land•
as Khalsa and contended that the lands having been declared as JChalro,
the respondents had lost their rights therein.
HELD : The rights· of the respoodents-Girasdars in this case were not
extinguished under the Land Reforms .Act and it was open to the court
exercising jurisdiction under the Debtors Relief Act to scale down the debt
and provide the restoration of the land iit possession of the mortgagees to
the mortgagors on taking fresh · account between the parties and directing
payments by one party to the other.
.
The Saurashtra Land Reforms Act aimed at regulating the relationship
O'f persons in pos.itioo of Landholders and their tenants, and to enable the
tenants to become the real owners of the soil under direct tenancy from
the State. It wa, not meant to extinguish or affect the rights of Landholders as mortgagors unless the persons in occupation had become tenants
either by contract or by operation -0f law.
A
B
c
D
E
F
No adjudication Of the rights of the debton and creditors inter se was
G
done.
All that the Special Mamlatdar decided and had iuriSdicti<>n to
decide under the Land Reforms Act was whether the respondents could be
given occupancy certificates or allotted any land Gharkhed and the Special
Mamlatdar merely ordered that the lands being Khalsa full assessment had
to be taken in respect of them and there was no need to grant occupancy
rights. In order to get such occupancy rights the appellants bad ·to show
that they had become tenants which they could not be
under
H
the provisions of s. 6 of the Land Reforms Act. The fact that they
had all along paid the revenue and other dues to the State, if any, would
.not clothe them with tenancy rights. That apart, it has not been shown
that the respondents were awarded any compensation ill respect of the
A
B
MAVJI v. MAMDAJI (Mitter, /.)
691
Khalsa lands given in mortgage to the appellants. The occupancy certifl..
cates if any, given by the Special Mamlatdar to the appellants could nol
unde; the provisions of the Land Reforms Act extingui•h the title of tho
respondents. [695 H; 696 HJ
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos.
123
and 124 of 1966.
Appeals by special leave from the judgments and orders dated
April 28, 1965 of the Gujarat High Court in Civil Revision
Applications Nos. 88 and 93 of 1961.
P. B. Patwari, K. L. Hathi, S. K. Bagga and Sureshta Bagga,
for the appellants.
c
P. M. Rawal and P. C. Bhartari, for the respondents.
D
The Judgment of the Court was delivered by
Mitter, J. These are two appeals by ,special leave from judgments of the Gujarat High Court dated April 28, 1965 in Civil
Revision Applications No. 88 and 93 of 1961. As the questions
involved in both the applications were the same, the High Court
delivered the main judgment in Civil Revision Application No.
88/1961 and referred to the same in its judgment in Civil
Revision Application No. 93 of 1961. The two applications in
the High Court arose out of certain proceedings under the
Saurashtra Agricultural Debtors
Relief Aet.
The
applicants
before the High Court and the appellants before this Court were
E
mortgagees in possession of certain lands belonging to the debtors
who are now represented by the respondents. The main question
before the High Court was and before us is, whether the debtors
had Io.st all their interest in the lands mortgaged by reason of the
operatmn of the Saurashtra Land Reforms Act, XXV of 1951 and
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as such were not competent to make an application under the
Saurashtra Agricultural Debtors Relief Act, 1954. Hereinafter
the two Acts will be referred to as the Land Reforms Act ~
the
Debtors Relief Act.
It is not necessary to deal separately with the facts in the
two appeals as the course of proceedings in both cases were
similar giving rise to common questions of law.
We .therefore
propose to take note of the facts in Civil Revision Application
No. 88 of 1961. The creditors, appellants before us, were in
possesion of the properties-the subject matter
of litigation,
under two mortgage deeds of Samvat years 1997 and 1999. The
first mortgage was for Rs. 991 and the second for Rs. 1. 011
The mortgagees were with possession and the mortgagee have
been appropriating the income of the usufruct thereof for the last
50. years. There is nothing to show whether they were under· a
liibnity under the documents of mortgage to pay the revenue
and other dues to the State but there is no dispute that they havo
692
SUPREME COURT REPORTS
[1969] 3 S.C.R..
been doing so for many years past.
The lands were situate in
Bajana State with its own peculiar land tenure system known as
the Girasdari system.
The Land Reforms Act which came into force on July 23,
1951 purported to effect important and far-reaching changes in
the said system. The preamble to the Act shows that its object
was "the improvement of land revenue administration and for
ultimately putting an end to the Girasdari system" and the regulation of the relationship between the
Girasdars
and
their
tenants, to enable the latter to become occupants of the !and
held by them and to provide for the payment of compensation to
the Girasdars for the extinguishment of their rights.
It will be
noted at once that the Act aimed at regulating the relationship
of persons in the position of landholders and their tenants and
to enable the tenants to become the real owners of the soil under
direct tenancy from the State. It was not meant to extinguish
or affect the rights of the landholders as mortgagors unless the
persons in occupation had become tenants either by contract or
by operation of law.
The Act came into force in the whole Of Saurashtra area of
the State of Gujarat. Under s. 2 ( 15) 'Girasdar' meant any
ta!ukdar, bhagdar, bhayat, cadet or. mu!-girasia, etc.
Under
s. 2 ( 13) 'estate' meant all land of whatever description held
by a Girasdar including uncultivable waste whether used for the
purpose of agriculture or not and 'Gharkhed' meant any land
reserved by or allotted to a Girasdar before the 20th May 1950
or for being cultivated personally and in his personal cultivation.
A tenant under s. 2(30) meant an agriculturist who held land on
lease from a Girasdar or a person claiming through him and
included a person who was deemed to be a tenant under the
provisions of the Act. Under s. 3 the provisions of the Act were
to have effect notwithstanding anything inconsistent
therewith
contained in any, other law for the time being in forte. Section 4
provided that "all land of whatever description held by Girasdar
is and shall continue to be liable to the payment of land revenue
to the State of Gujarat." Section .5 classified Girasdars according to
the measure of their holding and under cl. ( c) thereof a Girasdar
was to belong to class C if the total area of agricultural land
comprised in his estate did not exceed Act. 120-00. Section 6(1)
of the Act laid down that any persOl!l who was lawfuUv cultivating
any ,Jand belonging to a Girasdar was to be deemed for the purposes of the Act to be the t.enant if be was not a member of the
Girasdar's family or a servant on wages pavable in cash or in
kind etc. or a mortgagee in poS$ession.
The Explanation to
the sub-section however shows that a person who was otherwise
deemed to be a tenant was not to cease tp be such only on the
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MAVJI V. MAMOAJI (Miller, J.)
693
ground that he was a mortgagee in possession. Under s. 19 it
was open to any Girasdar to apply to the Mamlatdar for the
allotment to him of land for personal cultivation within a certain
fixed time. Such application had to be made in a specified form
giving the prescribed particulars.
The applicant had to sh?w
inter alia, the area and location of the land in respect of which
B
the allotment was prayed for, the right under which he claimed
the land and full particulars of his estate as also the area of
khalsa land, if any, in his possessibn. Under s. 20 of the Act it
was for the Mamlatdar to issue notice to the tenant or t.enants
concerned on receipt of an application under s. 19 and make an
enquiry in the prescribed manner after giving the
parties
an
opportunity of being heard. After such inquiry the Mamlatdar
was required to pass an order making an allotment to the Girasc
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dar of such land as may be specified in the order and this was to
be followed by the issue of an occupancy certificate to a Girasdar
in respect of his Gharkhed and the land, if any, allotted to him
under the section. Under sub-s. ( 4) no Girasdar was to obtain
possession of any land held by a tenant except in accordance
with the order under the section. Section 24 laid down the total
area of the holding which a C class Girasdar could be allotted
for personal cultivation.
Sub-s. (2) of the section
provided
that a C class Girasdar could not be allotted any khalsa land if
it was held by a tenant. Chapter V containing sections 31 to 41
provided for acquisition of occupancy rights by tenants and s. 31
laid down the consequences which were to issue in the wake of
grant of occupancy certificates. A tenant who was J!Ianted such
a certificate was to be free of all relations and obligations as
tenant to the Girasdar. The Girasdar in his tum was to be
entitled to receive and be paid compensation as provided in the
Act. Under s. 36 the riimt. title and interest of the Girasdar in
respect of an occupancy holding were to be deemed to have been
extinguished on the payment bv the Government of the last im;talment of compensation. The functions of a Mamlatdar are laid
down in s. 46 of the Act. It was for him to decide inter Q/ia
what land should be allotted to a Girasdar for person~ cultivation and to make such allotment, to decide whether a nerson was
or was not tenant, to determine whether a tenancv shall be terminated under s. 12 and many other matters. Under s. 51
an
appeal lay to the Collector against any order of the Mamlatclar.
The above analysis of the relevant provisions of the Land
Reforms Act amply demonstrates the manner in ·which a change
was to be brought about in the relationship between the Girasda1
and ~is tenants and the ri2hts which thev were respectively tc
acomre under ihe orders of the Soecial Mamlatdar. The said
Officer had no jurisdiction to terminate any rights under mort·
!!age.
694
SUPRiMI! COURT REPORTS
[1969] 3 S.C.R.
The full text of the order of the Mamlatdar on the application
of the Girasdars (the respondents to the appeal) is not before us.
The copy of the order on the respondents' application marked
Ex. 8/1 bearing date 16th January 1954 was handed over to us.
It appears therefrom Lhat the Girasdar was allowed to keep as
Gharkhed certain lands by paying six times the assessment in the
treasury but with regard to S._Nos. 684 and 685 (the lands given
to the mortgagees) the same were held by the Mamlatdar to be
khalsa and full assessment thereof was ordered to be taken. The
Mamlatdar .further noted that there was no need to grant any
occupancy rights.
On May 2, 1955 the respondents applied for adjustment of
their debt to the Civil Judge exercising jurisdiction under the
Debtors Relief Act.
The creditors relied on the order of the
Special Mamlatdar declaring the lands as Khalia as fortified by
the decision of the Bhayati court of Bajana State. It was contended that the lands having been declared khalsa the debtors
had lost their righB therein. Reliance was also placed on Forms
7 and 8 by counsel for the appellants to show that his clients had
acquired proprietary rights in the said khalsa lands.
According
to the Civil Judg~ the judgment of the Bhayati court had merely
decided that the Bai!Ula State had no title or interest in the land
in question and that the Jats Mul-Girasdars were independent
proprietors thereof.
The Judge however remarked that it was
not for the Special Mamlatdar to decide any question as to title
and he had merely ordered recovery of full assessment from the
persons in actual oossession and this in no way vested any title
in the creditors. In the result the Civil Judge directed the restoration of the lands to the debtors subject to certain limitations
and conditions.
The creditors went up in appeal to the Assistant Judge,
Surendranagar. There it was contended on their behalf that the
mortgages had been extinP,Uished by the title of the paramount
power and on the date of the application under the Debtors Relief
Act there was no subsisting mortgage between them . and the
re~oondents. Reliance was !'laced on the dedsion of the Soedal
Mamlatdar declaring the land to be khalsa land as extinguishing
the mortgages by forfeiture of the land to the State. The Assistant Judge dealt with the question at some length and came to
the conclusion that the mortgages had not been extinl!'Uished and
not being tenants within the meanin!! of s. 6 the creditors could
not have got an occupancv certificat~- in resoect of the lands in
their possession. He further stressed on the decision of the
Special Mamlatdar to show that only the liability for the full
assessment of the lands was indicated without anv disturbance to
the rights inter se between the mortgagor and ·the mortgagee.~.
Dealing with the question of the advances made and the amounts
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MAVJI \I, MAMDAJI (Mitter, /.)
695
still due to the creditors, it was ordered that the debtors should
pay Rs. 1,698/- in twelve yearly instalments and the award was
directed to be modified accordingly.
The matter was then taken up by way of Civil Revision to
the High Court of Gujarat. The High Court arrived at the following conclusions :-
(a) The decision of the Bhavati court merely declared that the State was entitled to recover taxes of
various kinds from the lands in possession of
tenants or mortgagees.
There was no decision
that the lands in possession of the mortgagees
were confiscated to the State.
(b) The Soecial Mamlat<lar reiected the application
of the -debtors and directe<l the lands in possession of the different creditors to be treated as
Government lands as according to him the decision of the Bhayati court amounted to a forfeiture of th~ lands by the Bajana State.
(c) It was not necess~ry to test the correctness of
the decision of the Sll-~~;nl Mam1atdar as in
view of the provisions· in the Debtors Relief Act
which was an Act subsequent to the Land
Reforms Act the provisions of the latter Act
were to prevail.
In the result the High Court affirmed the order of the Assistant
Judge in appeal directing possession to be handed over to the
debtors.
Before us great stress was laid on the decision of the Special
Mamlatdar and it was argi.Jed that sub_iect to anv appeal from his
order his decision was binding on the parties and not havin~ v;one
up in appeal from the order of the Spe6al Mamlatdar the debtors
could not be allowed to agitate their rights to the land ignoring
the said order. We have not before us the full text of the order
of the Special Mamlatdar relied on by th" anoellants nor are we
satisfied from copies of form 7 orescribed under Rule 81 of the
Rules oromul_gated under the Land Reforms Act that there was
any adjudication of the rights of the dehton; and the crediton:
inter se. In our view all that the Special Mamlatdar decided ·and
had jurisdiction to decide under the Act wa~, whether the debtors
could be given occupancy certificates or allotted anv land Gharkhed and the Snecial Mamlatdar merely ordered that the lands
being kha/sa full assesment had to be taken in respect of them
and there was no need to grant occupancv rights. In order to
get such occupancy rights the creditors had to show that they had
696
SUPREME COURT REPORTS
[1969] 3 S.C.R.
become tenants which obviously they could not be under the
provisions of s. 6 of the land Reforms Act. The fact that they
had all along paid the revenue and other dues to the State, if any,
would not clothe them with the right of the tenants. Under s.
76(c) of the Transfer of Property Act a mortgagee in possession
must, in the absence of a contract to the contrary out of the
income of the property, pay the Government revenue, all other
charges of a public nature and all rent accruing due in respect
thereof durine: such possession. We do not know whether there
was a contract to the contrary and whether the mortgagors had
covenanted to pay the rent and the revenue.
But even if they
could not meet the revenue and other State dues out of the income
and paid the same out of their own pockets in order to save the
security, the mortgagees were only entitled under s. 72(b) of the
Transfer of Property Act to add the amount to the mortgage
money. They could not by paying such rent or revenue acquire
a title in derogation of the rights of the mortgagors and the payments, if any, are to be taken into account when the mortgagors
seek to redeem the property.
That apart, it has not been shown to us that the debtors were
awarded any compensation in respect of the khalsa lands given
in' mortgage to the appellants. The occupancy certificate;, if any,
given by the Special Mamlatdar to the appellants cannot under
the
provisions
of
the
Land
Reforms
Act
extinguish the title of the mortgagors. Whether the mortgagors as C
class Girasdars can be allowed to retain land in excess of the
limits specified in the Act and whether as a result of the restoration of the lands to them by the award such limit will be exceeded
in this case, are not questions for us to consider.
The right of the
mortgae:ors not bein[t extinguished under any provision of law
to which our attention was drawn. no fault can be found with
the award as finally modified by the judgment of the Assistant
Jud!!:e and effect must be given thereto.
In our view, it is not
nece~sarv to consider the noint canvassed at length before the
High Court and dealt with in th~ iudwnent of the said court as
to whether the provi<ions of the Debtors Relief Act over-ride
thn<e in th"' Land Reforms Act.
The object of the two Acts are
<liff Prnnt. The ol:>iect of the Land Reforms Act. as already noted.
is the imnrovement of the land revenue administration and nuttin<" an end to the Clirasdari svstem and irrantinJ?: of occupancy
ri~ht< to the Girasd"rs and /or their tenants, whereas the Debtors
Relief Act g-ovems the rights of the debtors and creditors inter se
inter alia bv scaling down the debets and oroviding for restoration
of their nronertv to debtors. In our view. the ri2hts of the debtors
in th;s case wP-re not extimn1ished under the Land Reforms Act
· and it was oPen to the court exercising jurisdiction
under
the
Debtors Relief Act to scale down the debt and provide for resto·
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MAVJl v. MAMDAJI (Mitter, /,)
697
A ratian Qf tho laad in p!llSOl4lon of tho mortgageos to tho mortgagor& on taking fresh acoou11ts ~n
the parties and directing
payments by one party to the other as has been done in this case.
Tho appoala thertforo fail and are dismisled with coets.
a Y.P.
App1q/ dismissed.