# PATEL RAMBRAI BACHARBHAI & ANR v. PATEL DAHYABHAI BECHARBHAI & Al'iR

- **Citation:** [1966] Supp. 1 S.C.R. 146
- **Court:** Supreme Court of India
- **Decided:** 1966-04-04
- **Case number:** Civil Revision Application No. 158 of 1960
- **Bench:** K. Subba Rao A~D V. Ra~Aswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/patel-rambrai-bacharbhai-anr-v-patel-dahyabhai-becharbhai-al-ir-3793
- **Pages:** 8

## Headnote

Bombay r1gricult,,rul Debtors Ilelief Act (28 of 194i), ss. 46 and
56-Scope of.
The father of the first respondent sold his lands to the second
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respondent but continued to be in possession. The second respondent
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sold them to the appellants who were put in possession in 1934. In
August 1945, the first respondent filed a pe!lbion against the second
respondent, before the Debt Adjustment Board, under ss. 17, 18 and
45 of the Bombay Agricultural Debtors Relief Act. 1939, within the
time prescribed by s. 17, alleging that the transaction with the second
respondent was a mortgage and that the debt was liable to be adjusted under the Act The first appellant was impleadcd as a party
to the petition in December 1945, beyond the time specified in s. 17.
D
No appeal was filed <1gainst that order. and in 1947, the Board dispos<?d of the petition for adjustment of debt by directing the second
respondent to render occounts. He appealed and, pending the appeal,
the 1939 Art was rcpt>aled by the Bombay Agricultural Debtors Re1;ef Act of 1947. In 1949. the appellate Court set aside the Board's
order and remanded the case to the C1v1l Judge, for deciding the na·
ture of the transaction. because. under the 1947 Act. the Board was
dissolved an:i its jurisdict'on was vested in the Civil Judge. Jn 1950,
the first respondent's application to the Civil Judge for impleading
E
the second respondent also as u party to the petition for adjustment
of the debt. was allowed. and thercaf1er, the matter was disposed of
on merits.
On the questions: (i) Whether the orders impleading the appellants were without jurndiction. and (ii) whether the appellants had
acquired title tc> the lands by adverse possession,
HELD; fi) The orders were not without jurisdiction.
Under the• rcpcald Art. if a part,- was added beyond the period
prescribed under s. 17 of the Act. if he was added as a
necessary
party to a petition filt>d in time. the said order might be improper
but not without jurisdiction. [151 C-D]
p
Under s. 5G of the 1947 Act. origrnal and appcilate proceedings
initiated under the repealed Act but pending at the time
the 1947
Act came into force \\'ill have to be disoosed of in arcordanre with
the substantive and procedural sections of the 1947 Act. Under s. 46
G
of the 1947 Act. tl~e court is empo1,1,·crcd. in a suitable case. to add
parties under 0.1. r. Ill. Civil Procedur,• Code. and they mcv be added irrespective of th .. lime limit prescribed under the· repealed Act
or the time specified m ss. 4 and 24 of the 1947 Ad. [152 A-Cl
'

## Text

146
PATEL RAMBRAI BACHARBHAI & ANR.
v.
PATEL DAHYABHAI BECHARBHAI & Al'iR.
April 4, 1966
[K. SUBBA RAO A~D V. RA~ASWAMI, JJ.}
Bombay r1gricult,,rul Debtors Ilelief Act (28 of 194i), ss. 46 and
56-Scope of.
The father of the first respondent sold his lands to the second
A
l!
respondent but continued to be in possession. The second respondent
C
sold them to the appellants who were put in possession in 1934. In
August 1945, the first respondent filed a pe!lbion against the second
respondent, before the Debt Adjustment Board, under ss. 17, 18 and
45 of the Bombay Agricultural Debtors Relief Act. 1939, within the
time prescribed by s. 17, alleging that the transaction with the second
respondent was a mortgage and that the debt was liable to be adjusted under the Act The first appellant was impleadcd as a party
to the petition in December 1945, beyond the time specified in s. 17.
D
No appeal was filed <1gainst that order. and in 1947, the Board dispos<?d of the petition for adjustment of debt by directing the second
respondent to render occounts. He appealed and, pending the appeal,
the 1939 Art was rcpt>aled by the Bombay Agricultural Debtors Re1;ef Act of 1947. In 1949. the appellate Court set aside the Board's
order and remanded the case to the C1v1l Judge, for deciding the na·
ture of the transaction. because. under the 1947 Act. the Board was
dissolved an:i its jurisdict'on was vested in the Civil Judge. Jn 1950,
the first respondent's application to the Civil Judge for impleading
E
the second respondent also as u party to the petition for adjustment
of the debt. was allowed. and thercaf1er, the matter was disposed of
on merits.
On the questions: (i) Whether the orders impleading the appellants were without jurndiction. and (ii) whether the appellants had
acquired title tc> the lands by adverse possession,
HELD; fi) The orders were not without jurisdiction.
Under the• rcpcald Art. if a part,- was added beyond the period
prescribed under s. 17 of the Act. if he was added as a
necessary
party to a petition filt>d in time. the said order might be improper
but not without jurisdiction. [151 C-D]
p
Under s. 5G of the 1947 Act. origrnal and appcilate proceedings
initiated under the repealed Act but pending at the time
the 1947
Act came into force \\'ill have to be disoosed of in arcordanre with
the substantive and procedural sections of the 1947 Act. Under s. 46
G
of the 1947 Act. tl~e court is empo1,1,·crcd. in a suitable case. to add
parties under 0.1. r. Ill. Civil Procedur,• Code. and they mcv be added irrespective of th .. lime limit prescribed under the· repealed Act
or the time specified m ss. 4 and 24 of the 1947 Ad. [152 A-Cl
'
Case law referred to.
.
(i1l The appellants had not acquired any title bv adverse po;sess10n. as the pet1t:on fnr adjustment of debt was filed .., .. ;thin 12 years
H
from the date- of their occupation of the suit lands. [153 F]
•
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RAMB!llI v. DARYABHAI (Subba Rao, J.)
147
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 386 of
~ : '
1964.
:ii
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Appeal by special leave from the judgment and order dated
January 10, 1962 of the Gujarat High Court in Civil Revision
Application No. 158 of 1960.
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S. V.
Gupte, Solicitor-General,
S. H. Sheth .and
M. V.
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Goswami, for the appellants.
G. L. Sanghi and A. G. Ratnaparkhi, for respondent No. I.
The Judgment of the Court was delivered by
Sobba Rao, J. This appeal by special leave is directed against
the order of the Gujarat High Court in Civil Revision
Application No. 158 of 1960 confirming that of the District Judge,
Kaira, holding that the lst respondent herein was a debtor and
directing the Civil Judge, Kapadvanj, to adjust the debt under the
provisions of the Bombay Agricultural Debtors Relief Act.
The relevant facts may be briefly stated.
The father of the
first respondent owned three pieces of land bearing Survey Nos.
93, 102/3 and 125I1 in village
Chikhlod, Taluka Kapadwanj,
District Kaira in the State of Gujarat. On June 9, 1933, he sold
the same by an oral vardi to respondent No. 2 for a sum of
Rs. 2,701/- but continued to be in possession thereof. On April 7,
1934, the 2nd respondent sold the said lands to the I st appellant
by an oral vardi for Rs. 2,521 I - and the !st appellant got possession thereof on the said date. In a partition that was effected in
the joint family of the I st appellant. survey No. 93 went to the
share of the 2nd appellant and the remaining two lands fell to the
share of the !st appellant. The appellants have been in possession
of the said lands from April 7, 1934.
On August 3, 1945, the 1st
respondent filed an application before the Debt Adjustment
Board under s. 17. read withs. 18 ands. 45 of the Bombay Agricultural Debtors Relief Act, 1939. To that application only the
2nd respondent was made a party. His case was that his father
had money dealings with the 2nd respondent and in consideration
of past debts his father had sold the said lands to the 2nd respondent in 1933 by way of an oral sale with a condition of reconveyance of the said lands to the vendor and, therefore, the said debt
was liable to be adjusted under the provisions of the said Act. The
2nd respondent denied that he had any money dealings with the
father of the 1st respondent and stated that the lands were not in
his possession.
On December 4. 1945, the respondent made an
app]jcation before the Debt Adjustment Board for adding the
appellants as respondents to the petition. It appears from the
record that only the 1st appellant was made a party-respondent to
14A
8t"l'HE\1F 00\IRT REP<'RT:i
! 19tlfl1 SI"PP.
~ ,(' R
that application.
On April 29, 1947, the said Board held that the
sales in favour of the 2nd respondent and the appellants were invalid and directed the 2nd
respondent to render the accounts.
Against that order. the 2nd respondent preferred an appeal to the
District Judge at Na<liad.
On May 27. 1947, Bombay Agricultural Debtors Relief Act 28 of 1947. hereinafter called the new
Act. came into force and under s. 56(2) thereof the Bombay Agricullllral Debtors Relid Act. 1939, hereinafter called the repealed
Act was repealed.
On April
14.
1949
the learned District
Judge. Kaira. set aside the order of the Board and remanded the
case to the court of the Civil Judge (Junior Division) at Kapadwanj with a direction to decide afresh the question of the nature
of the said transaction in accordance with law.
It was remanded
to the said Civil Judge as under the new Act the Debt Adjustment
Board was dissolved and its jurisdiction was vested on the Civil
Judge.
On April 24. 1950. the 1st respondent made an application before the Civil Judge for adding the 2nd appellant as a partyrespondent and that petition was allowed on August 21, 1950. On
September 29. 1953. the Civil Judge dismissed the petition as not
maintainable; but on appeal the District Judge, Kaira, allowed the
appeal and remanded the matter to the Civil Judge for disposal
according to law. The appellants and the 2nd respondent preferred
a revision to the High Court. hut that was summarily rejected.
After the remand. the Civil Judge held that the transaction was
not a mortgage and th.: appellants had acquired title lo the lands
by adverse possession.
Against that order the !st respondent pre·
ferrcd an appeal to the District Judge, who. by his order dated
October 16. 1958. held that the mortgage subsisted and that the ap·
pellants had not acquired title to the said lands by adverse possession. In hat view. he remanded the case to the Civil Judge for adjustment of the debts. On revision the High Court of Gujarat
accepted the finding of the learned District Judge and dismissed
the revision. Hence the present appeal.
The learned Solicitor-General, appearing for the appdlanls.
raised before us the following four points: 0) Under the repealed
Act the Board would have jurisdiction to entertain an application
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for adjustment of debts. if it was filed within 18 months from the
date of the appointment of the Board under s. 4 of the said Act. i.e..
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on or before October 31. 1945. and. as no such application was filed
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either against the 1st appellant or against the 2nd appellant before
>
that date. the order of the Board adding
the
Isl appellant on
December 4. 1945, and the order of the Civil Judge adding the 2nd
appellant on August 21. 1950 were without juriS<tiction a;1d. therefore. void; as the said orders were without jurisdiction. the appellants
had acquired a vested interest in the properly and the new Act does
H
not affect the said right. (2) The appellant had acquired a right to
the said lands by adverse possession. t3l The application to the
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RAMBHAI v. DAHYABHAI (Subba Rao, J).
149
Board to investigate ihc nature of the transaction was not competent. And (4) The benefit under s. 55(6)(b) of the Transfer of Property Act is available only to a buyer under a valid transaction
and not to a buyer under a transaction which is void at the very
inception.
At the outset it may be mentioned that the 4th point was
sought to be raised before the High Court for the first time and
the High Court refused to go into that matter. We cannot,
therefore, allow the appellants to raise that point before us.
The third point was also not raised before the High Court and
we do nol see any justification for allowing the appellants to press
the same before us.
We shall, therefore, confine our judgment to the first two
points raised.
To appreciate the rival contentions of the parties it will be
convenient to read at this stage the relevant provisions of both the
repealed and new Acts.
The Bombay Agricultural Debtors Relief Act, 1939.
&ction 17. (1) Within eighteen months from the
date on which a Board is established under section 4, any
debtor may make an application to the Board for the
adjustment of his debts under this Act as hereinafter provided:
(3) An application under this section shall be made
to the Board established for any local area if the debtor
or any of the debtors who is a party to the application
ordinarily resides in such area, or to the Board established for the class of debtors, if the debtor or any of the
debtors who is a party to the application belongs to the
said class.
Section 7.(1) Subject to the provisions of this Act and
any rules, the Board shall have the same powers as are
vested in civil courts under the Code of Civil Procedure,
1908, when trying a suit and in particular in respect of
the following matters: -
(a) joining any necessary or proper parties.
The Bombay Agricultral Debtors Relief Act, 1947.
Section 4. (!) Any debtor ordinarily residing in any
local area for which a Board was established under section 4 of the repealed Act on or after the 1st February
H
1947, or his creditor may make an application before the
1st August 1947 to the Court for the adjustment of his
debts.
150
&LPREME C01.'RT REPORTS
[lr66J serP.
s.c.~.
Section 46. Save as otherwise expressly provided in
this Act, the pro\'isions of the Code of Civil Procedure.
1908, shall apply to all proceedings under this Chapter.
*Provided that the Court may in a proper case and
on such terms as may appear to it to be just, exercise its
powers to add or strike out parties under rule 10 of Order
I of the said Code in any proceeding pending before it
under section 4 or 24, notwithstanding the fact that such
addition, or strikin~ out of parties is to be made after the
date specified in scdion 4 or 24. as the case may be, has
elapsed.
(*This proviso wa.s added by Bombay Act 37 of 1950.
s. 9).
Section 56. (2) The Bombay
Agricultural
Debtors
Relief Act. 1939, is repealed.
All Boards established under section 4 of the repealed Act shall be dissolved: Provided that-
(a) all proceedings pending before any such Board at
the date when this Act comes into force shall be continued and disposed of by the Court under this Act as if an
application under section 4 had been made to the Court
in respect therefor;
(b) all awards made. confirmed or modified under
the repealed Act shall be deemed to have been made,
confirmed or modified under this Act as if this Act was
in force at the date when the said awards were made,
confirmed or modified, as the case may be;
(c) all appeals pending before any Court under the
repealed Act against the decision. order or award of such
Board shall be continued and disposed of as if the said
appeals were filed under the provisions of this Act; and
(d) all appeals which could have been filed under
the repealed Act against any decision. order or award of
such Board but which could not be filed only by reason
of the fact that the said Act was repealed by this Act
shall when filed before a competent court be deemed to
have been filed under the provisions of this Act and shall
be disposed of accordingly.
The impact of the provisions of the new Act on those of the
repealed Act in the context of the present enquiry may be stated
thus: Under the repealed Act an application could be filed before the appropriate Board for the adjustment of a debt within
the time prescribed under s. 17 thereof. Under s. 7 thereof the
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A
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R(lJBHAI v. DAHYABHAI (Siibba Rao, J.)
151
Board had the power to join any necessary or proper parties. The
said power was coterminus with that of a civil court under the
Code of Civil Procedure.
Order I, r. 10, of the Code of Civil Procedure enables the court in a suitable case to strike out or add
parties; and under sub-s. (5) thereof, subject to the provisions of
s. 22 of the Indian Limitation Act, 1877, the proceedings as against
any person added as defendant shall be deemed to have begun
only on the service of the summons.
Under the repealed Act
therefore, if a party was added, the proceedings as against him
should be deemed to have been taken only on the service of summons. If a party was added subsequent to the period prescribed
under s. 17 of the repealed Act, it could be objected that the proceedings against the party so added was beyond the period prescribed under s. 17. But nonetheless if he was added as a necessary party to a petition filed in time, though the said order might
be improper, it could not be said that the court acted without
jurisdiction. If it was an illegal order, it could be set aside by an
appropriate order in appeal.
Under s. 56(2) of the new Act the
1939 Act was repealed and all the Boards established under the
repealed Act were dissolved. The three provisos to sub-s. (2) of
s. 56 of the new Act prescribed for the continuity of the proceedings initiated under the repealed Act. Under the first proviso, all
proceedings pending before any such Board shall be continued
before the court as if an application under s. 4 of the said Act had
been made to the court.
This proviso introduces a fiction; and
under that fiction, if an application filed before the Board under
s. 17 of the repealed Act was pending at the time the new Act
came into force, it shall be continued as if it were an application
filed under s. 4 of the new Act. Under the third proviso, which
deals with pending appeals, appeals pending before any court
under the repealed Act shall be continued and disposed of as if
they were appeals under the new Act. This proviso also introduces a fiction, namely, the appeal should be deemed to be an
appeal under the new Act. The expression "under the Act"
means under the provisions of the Act.
This expression emphasizes the fact that pending appeals shall be deemed to be appeals
under the (new) Act and, therefore, shall be disposed of by applying the provisions thereof. The fourth proviso deals with appeals
to be filed against the orders under the repealed Act; under the
G·
said proviso those appeals when presented after the new Act came
into force shall be deemed to be appeals from the decision
or orders or awards of courts under the new Act and
shall be disposed of accordingly. In short, the old Act was repealed and the proceedings, original or appellate, are all deemed
to be proceedings under the new Act and they should be disposed
H
of in accordance with the substantive and procedural sections of
the new Act. If that be the interpretation of s. 56 (2) of the new
Act, to such a proceeding s. 46 is immediately attracted. Under
L/S5SCI-12
.
.
lli2
Scl'REME COURT RRl'IMTS
(1006]
RLl'l'. 8.C,R.
s. 46 of the new Act. the court is empowered in a suitable case to
add parties under Order I, rule I 0, of the Code of Civil Procedure,
notwithstanding the fact that the addition of parties is made after
the dates specified in s. 4 or 24, as the case may be, have expired.
By reason of the aforesaid fiction. a proceeding taken under the
repealed Act is deemed to be a proceeding under the new Act and,
therefore. a party may be added after the prescribed period.
To summarize: After the new Act was passed there are two
types of proceedings, namely. (i) proceedings initiated under the
repealed Act but pending at the time the new Act came into force;
and (ii) proceedings taken under the new Act. Both the proceed·
ings will have to be disposed of under the provisions of the new
Act, that is to say, both the substantive and the procedural sections
of the new Act would equally apply to both classes of proceedings.
Some of the decisions cited at the Bar have a direct bearing
on the question raised before us.
A division Bench of the Born·
bay High Court in Vishwanath Mahadev Adhikari v. Krishnaji
Ramchandra Bodas(') construed the scope of the three provisos to
s. 56(2) of the new Act. It was contended before the said Bench
that proviso 2 had no retrospective effect and the appeals which
were pending should be disposed of according to the repealed Act
and not according to the new Act. Chagla, C. J., adverting to that
argument. speaking for the Court, observed thus:
"Further, in our opinion, the language used in proviso 2 is
fairly clear and explicit and makes this proviso retros·
pective in its effect. What the Legislature says ;s that
the appeals shall be continued and disposed of as if
they were appeals under this Act, which clearly means
that all the provisions of this Act shall apply to the
appeals which are pending. The appeal Court is asked to treat the appeals as if the new Act was in force
and not the old Act, and in disposing of those appeals
the appeal Court has to consider the substantive Jaw
as well as the procedural law brought into force by Act
XXVlll (28) of I 947 ."
Another division Bench of that Court in Hiraman Ratan v. P11r·
shollam Deorao(') expressed the same view. Therein it held that
the language of the provisos to s. 5612) of the new Act clearly gave
retrospective effect to all the provisions of the new Act including
the substantive provisions and not merely to the procedural provisions thereof. In Basarnnappa Shivappa v. Neelappa Adiveppa(').
Gajendragadkar. J .. construed s. 46 of the new Act and held that
parties could be added in a proper case without considerations of
delay.
('I A.T,R. 1949 Boru. 390,1!11,
(') A.T.R 1953 nom. 200,
(') A.T.R. 1966 Dom, 201.
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RAMBHAI v. DAHYABHAI (Subba Rao, J.)
153
The views expressed in these decisimi.s accord with those
expressed by us earlier.
With this legal position in mind, let us look at the facts of
the present case. The application was filed by the 1st respondent
against the 2nd respondent under s. 17 of the repealed Act before
the prescribed time, i.e., October 31, 1945. The 1st appellant was
added by the Board itself on December 4, 1945; and the 2nd
appellant was added by the Civil Judge on August 21, 1950. As
the appeal against the order of the Board was pending at the time
the new Act came into force, under proviso (c) to s. 56(2) of the new
Act that appeal had to be disposed of under the provisions of the
n~w Act and after remand the application had likewise to be disposed of under the provisions of the new Act.
At that time the
civil Court had ample jurisdiction to add the appellants as parties
irrespective of the time limit prescribed under the repealed Act.
If so, it cannot be said that the Civil Judge acted without jurisdiction in disposing of the petition as if it was filed under the new
Act. There are, therefore, no merits in the first contention.
There are no merits in the second contention either. Some
relevant facts may be recapitulated. The father of the 1st respondent sold the lands to the 2nd respondent on June 9, 1933. The
2nd respondent sold the same to the l st
appellant on April 7,
1934, and he was put in possession on the same day. From June
9, 1933 to April 7, 1934 the father of the 1st respondent was in
possession. The application for adjustment of the debt was made
on August 3, 1945. From April 7, 1934 to August 3, 1945 the
appellants were in possession of the disputed lands and the said
period of occupation of the lands by the appellants was less than
12 years.
But it was contended that the 1st respondent was in
possession of the lands as a tenant of the !st appellant between
June 9, 1933 to April 7, 1934 and, therefore, the said period
should be tacked on to the period of adverse possession by the
appellants. But the High Court found, agreeing with the District
Judge, that the appellants failed to prove that the !st respondent
was in possession of the lands as a tenant during that period.
1f
so, it follows that the appellants had not acquired any title to the
suit property by adverse possession.
In the result, the appeal is dismissed with costs.
Appeal dismissed.
LjS5SCI--12(a)