# The decision of this Court in Rana Shea Ambar Singh v. Allahabad

- **Citation:** [1976] 2 S.C.R. 193
- **Court:** Supreme Court of India
- **Decided:** 1975-10-08
- **Case number:** Civil Appeal No. 1537 of 1974
- **Bench:** A. Alagiriswami, P. K. Goswami, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-decision-of-this-court-in-rana-shea-ambar-singh-v-allahabad-6705
- **Pages:** 6

## Headnote

BU.P. Zamindari Abolition and Land Reforms AcJ, 1950 (1 of 1951), ss. 4
and 6-Pre-emption decree-If executable after tlze application of Act to land.
The co-sharen with the appellant, in the proprietary interest of certain
lands. sold their share to the respondents. The appellant fil~d a suit fo~ pre4
emption, and in pursuance of the decree in his favour_ deposited the consideration of the sale deed in court.
But, before that date, that is, from July 1, 1970,
the U.P. Zamindari Abolition and Land Reforms Act 1950. had. come into
force in the district where the property was situate.
On the question whether C
the decree was executable,
HELD.: The decree was inexecutable in view of ss. 4 and 6 of the Act.
(a) Having deposited the money, the appellant got himself substituted for
the vendees in respect of the share in the property. But, since the veodees
were still in possession after their purchase, the appe!lant had to obtain possession of the land and for that purpose had to take execution proceedings.
The appellants' right to possession was, thus, based upon the decree which I>
was itself based on the fact that he was a co-sharer of the proprietary right
in the land. Since, however, on and from July 1, 1970, nnder ss. 4 and 6 of
the Act, all rights, title and interest in that land ceased to exist and vested in
the State, and nothing survived in favour of the erstwhile proprietors-the
appellant or the vendors-the decree became devoid of substance and incapa·
ble of execution.
Jt could not be contended that the decree was still execu"'
table in the absence of an express provision voiding the decree or taking away
the right under the decree by operation of law.
[196B-G]
(b) The decision of this Court in Rana Shea Ambar Singh v. Allahabad
Bank Ltd., [19621 2 S.C.R. 441 is a complete answer to the submission of the
appellant. In that case, it was held that on the application of the Act to the
mortgagor"; estate, but for s. 6 (h) of the Act, the mortgagee would have nothing
to proceed against under his mortgage-decree, and that under that provision,
a special remedy was provided in. favour of a mortgagee for proceeding only
against the compensation money under s. 71, Transfer of Property Act.
E
. [198 A-Cl F
Shivshankar Prasad She.Ji and Ors. v. Baikunt/z Nath Singh &; Ors., [1969~
3 s.C.R. 909, referred to.
[The rival claims with. regard to the rights. if any, in the land under s. 18
•
?f the Act. will have to be w·orked out by the parties in appropriate proceedings.] [198E-F]
Kailas/z Rai v. Jai lai Ram and others, A.I.R. 1973 S.C. 893, ·referred to. G

## Text

•
f '
VIDYA SAGAR
v .
SUDESH KUMAR! & OTHERS
October 8, 1975
193
A
[A. ALAGIRISWAMI, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.]
BU.P. Zamindari Abolition and Land Reforms AcJ, 1950 (1 of 1951), ss. 4
and 6-Pre-emption decree-If executable after tlze application of Act to land.
The co-sharen with the appellant, in the proprietary interest of certain
lands. sold their share to the respondents. The appellant fil~d a suit fo~ pre4
emption, and in pursuance of the decree in his favour_ deposited the consideration of the sale deed in court.
But, before that date, that is, from July 1, 1970,
the U.P. Zamindari Abolition and Land Reforms Act 1950. had. come into
force in the district where the property was situate.
On the question whether C
the decree was executable,
HELD.: The decree was inexecutable in view of ss. 4 and 6 of the Act.
(a) Having deposited the money, the appellant got himself substituted for
the vendees in respect of the share in the property. But, since the veodees
were still in possession after their purchase, the appe!lant had to obtain possession of the land and for that purpose had to take execution proceedings.
The appellants' right to possession was, thus, based upon the decree which I>
was itself based on the fact that he was a co-sharer of the proprietary right
in the land. Since, however, on and from July 1, 1970, nnder ss. 4 and 6 of
the Act, all rights, title and interest in that land ceased to exist and vested in
the State, and nothing survived in favour of the erstwhile proprietors-the
appellant or the vendors-the decree became devoid of substance and incapa·
ble of execution.
Jt could not be contended that the decree was still execu"'
table in the absence of an express provision voiding the decree or taking away
the right under the decree by operation of law.
[196B-G]
(b) The decision of this Court in Rana Shea Ambar Singh v. Allahabad
Bank Ltd., [19621 2 S.C.R. 441 is a complete answer to the submission of the
appellant. In that case, it was held that on the application of the Act to the
mortgagor"; estate, but for s. 6 (h) of the Act, the mortgagee would have nothing
to proceed against under his mortgage-decree, and that under that provision,
a special remedy was provided in. favour of a mortgagee for proceeding only
against the compensation money under s. 71, Transfer of Property Act.
E
. [198 A-Cl F
Shivshankar Prasad She.Ji and Ors. v. Baikunt/z Nath Singh &; Ors., [1969~
3 s.C.R. 909, referred to.
[The rival claims with. regard to the rights. if any, in the land under s. 18
•
?f the Act. will have to be w·orked out by the parties in appropriate proceedings.] [198E-F]
Kailas/z Rai v. Jai lai Ram and others, A.I.R. 1973 S.C. 893, ·referred to. G
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1537 of 1974.
Appeal by special leave from the judgment and order dated the
23rd November, 1973 of the
Allahabad High Court in Execution
Secon,1<:1 Appeal No. 2738 of 1971.
L. M. Pant and R. C. Prasad for the Appellant.
L. i'vf. Singhvi and S. K. Dhingra for Respondents 2-4.
H
.A
194
SUPREME COURT REPORTS
(1976] 2 S.C.R.
The Judgment of the Court was delivered by
GosWAMI, J. The short question that arises for consideration in
this appeal by special leave against the judgmt\nt of the Allahabad
•
High Court is whether a decree for pre-emptioμ obtamed prior to
the enforcement of the Uttar Pradesh Zamindari Abolition and Land
Reforms Act, .1950 (U.P. Act No. 1 of 1951) survives for execution
.B
after the enforcement of the Act in the particular area in which the
land is situated.
Briefly the facts are as follows. :-
The plaintiff (appellant here~n) and defendants 5 and 6 were cosharers in proprietary interest of lands in Khata Khewat No. 1 of
village Noyagoa111 Chandan Singh
Bandobasti Pargana Bhabarkota,
'C · Tehsil Kaldhungi, District Nainital. Defendants 5 and 6 sold
by
registered sale deed a certain share of the land in that Khata Khewat
in favour of defendants 1 to 4 (respondents herein).
The p~aintift'
thereupon filed a suit for pre-emption arid obtained a decree which
was affirmed by the High Court in second appeal on April 27, 1970.
The plaintiff also deposited the consideration of the sale deed in court
on August 20, 1969, as ordered. The Uttar Pradesh Zamindari AboID
lition and Land Reforms Act, 1950 (briefly the Act) was brought
-<
into force in the district N ainital wliere the property is situated with
effect from July 1, 1970.
The appellant instituted an execut~on proceeding after the enforcement of the Act in the area.
An objection
.... 4
was taken by the judgment-debtors (respondents herein) under section 47, Civil Procedure Code, on various grounds
including that
with which we are n,ow concerned, namely, that the decree has belE
come inexecutable in view of the provisions of the Act.
An objection was raised under section 336 of the Act which provides
for
extinguishment of the right of pre-emption in the area to which the
Act applies.
The High Court repelled this obje2tion and we . are
now not concerned with the said question in this appeal.
The only submission of the learned counsel appearing on belF
half of the appellant before us is that the High Court is wrong in
holding that the decree is inexecutable in view of section 4 and section 6 of the Act.
'
II
As the preamble shows the Act provides for-
"the abolition of the Zamindari system which involves
intermediaries between the tiller of the soil and the State in
Uttar Pradesh and for the acquisition of their rights, title
and interest and to reform the law relath1g to land tenu're
consequent upon such abolition and
acquisition and to
make provision for other matters connected therewith".
We may now read a few secticms which are material for deciding
the issue :
"Section 4(1) : As soon as may be after the commencement of this Act, the State Government may, by notification,
declare that, as from a date to be specified, all estates situate
in Uttar Pradesh shall vest in the State and as from
the
•
\
VIDYA SAGAR v. SUDESH KUMARI (Goswami, J.)
195
beginning of the date so specified (hereinafter called the
date of vesting), all such estates sh~ll sta?d transferred to
and vest, except as hereinafter provided, m the State free
from all encumbrances.
Section 6 : "Consequences of the vesting of an estate in the StateWhen the notification under section 4 has been published in
the Gazette, then, notwithstanding anything contained . in
aiay contract or document or in any other law for the time
being in force and save as otherwise provided in the Act,
the consequences as hereinafter set forth shall,
from
th<!
beginning of the date of vesting, ensue in the area to which
the notification relates, namely-
( a) all rights, title and interest of all the i'atermediaries--
0 In every estate in such area including land ( culti-
·vablc or barren), grove-land, forests whether Within or outside village boundaries, trees (other than
trees in village abadi, holding or grove), fisheries,
tanks, ponds, waterchannels, ferries, pathways,
abadi sites, hats,, bazars and males [other than hats,
bazars and melas held upon land to which clauses
(a) to (c) of sub-section (1) of section 18 applyl,
and
(ii) in all sub-soil in such estates including rights,
if any, in mines and minerals, whether bei'.ig worked
or not,
shall cease and b' vested in the State of Uttar Pradesh free
from all encumbunces".
Section 18 : "Settlement of certain lands with intermediaries
or cultivators as bhl.IJllidhars-
( 1) Subject to the provisions of Sections 10, 15, 16 and
17 all lands-
( a) in possession of or held or deemed to be held by an
intermediary as sir, khudkhasht m an intermediary's
grove
*
*
*
on the date immediately preceding the date of vesting
shall be deemed to be settled by the State Government
with such intermediary, lessee, tenant, grantee or grove- .
holder, as the case may be, who shall, subject to the provisions of this Act, be entitled to take or retain possession
as bhumidhar thereof."
It is strenuously contended by the learned counsel for the appellant
that a decree cannot be made inexecutable unless there is a provision
in the Act itself that such a decree is no longer valid.
He submits
that in absence of any express provisioia declaring the decree to be
void or inexecutable, the rights under the decree cannot be taken away.
A
B
c
E
F
G
H
A
B
c
0
E
F
G
H
196
SUPREME COURT REPORTS
(1976] 2 S.C.R.
He draws our attention to a single Bench decision of the Allahabad
High Court in Paltu v. Joti Prasad(.l) in support of his submission.
We are unable to accept as correct the submission and the ratio of
the above decisio·a.
The position has to be looked from an altogether different standpojnt.
It is true that the appellant obtained the pre-emption decree
pnor to the enforcement of the Act in the area in question and he
duly c;Ieposited the requisite money in court according to law. Having
deposited the money it is true that the decree-holder got substituted
for the v~adee in respect of the share in the property.
It is, therefore,
clear that on August 20, 1969, when the appellant had deposited the
money in court, his name stood substituted in. law in place of the
vendees.
Since, however, the vendees were in possession after the.
purchase, it was still necessary for the decree-holder to obtain possession of the land.
For this purpose he had to institute the execution
case for delivery of possessida.
The appellant in execution sought
for possession basing his right under the decree.
The decree was on
the basis that he was a co-sharer of certain intermediary's interest
in the land in question along with the vendors, namely his co-sharers.
Since, however, on and from July 1, 1970, all rights and title i·n that
proprietary land ceased to exist and vested in the State, the decree
to that extent became devoid of substance inasmuch as the proprietary
interests with regard to which alone the decree was passed had vested
in the State and nothing survived in favour of the erstwhile proprietors,
the appellant or the vendors.
The appellant could execute
the decree for delivery of possession only 01,1 the basis that he had
the proprietary right in the land on the basis of which, as a co-sharer
therein, he had obtained.. the decree of pre-emption.
Now, since
there is vesting of the property under the Act and emergence of a new
species of property, which was not even the subject-matter of
the
decree, the present decree becomes incapable
of
execution.
The
intermediary and for the matter of that the decree-holder lost the
property as known earlier to law with a bundle of proprietary rights.
There was a vacuum on cessation of the proprietary interests of the
zamindars and all intermediaries and the entire land then vested in the
State.
There is therefore no substance in the contention that this
decree is still e~ecutable i~ absence of an express provision voiding
the decree or taking away the rights under the decree by operation
of Jaw.
The old property became extinct and the proprietors including the appellant had nothing left with them after the vesting in the
State and necessarily, therefore, the decree cannot be executed for
that reason. It would have been possible to execute the decree only
if the interests in the land as such survived in the proprietors. Land
can be understood only with reference to the rights in the ~and and
when the old rights give place to the emergence of new rn~hts.
a
decree with reference to the old rights cannot be executed when that
has already lapsed under the Act.
In this connection we may refer to a decision of this f ourt. in
Rana Shea Ambar Singh v. Allahabad Bank Ltd., Allahabad( ) which
0) [1958]. 5(5 All. L.J.31.'
(2) [1962] 2 S.C.R. 441.
VIDYA SAGAR v. SUDESH KUMAR! (Goswami,!.)
197
was also relied upon by the learned counsel with reference to section
A
6(h) of: the Act. We do not ~ee how this decision helps the appellant.
This was a case in which the appellant's father, a Talukdar of the
Estate of Khajurgaon executed a simple mortgage of his proprietary
interest in the estate consisting of sixty-seven villages to the Allahabad
Bank Ltd.
While execution proceedings were pending,
the
U.P.
Zamindari Abolition and Land Reforms Act, 1950, came into force
from July 1952.
As a result, the Zamindari rights of the appellant
B
judgment-debtor were abolished and it was no longer possible for the
Bank to sell these rights in the 67 villages. The Bank applied to the
executing court preying for sale of the substituted bhumidhari rights
which the zamindar acquired under the Act. Repelling the contention
this Court held as follows :-
"All lands therefore whether cultivable -or
barren or
c
grove lands vested in the State on the notification under s. 4
having been made save as otherwise provided in this Act.
Therefore, proprietary rights in sir and .Khudkasht land and
grove land would vest in the State on the coming into force of
the notification under s. 4 unless there was some provision
otherwise in the Act.
The contention of the
respoudent
therefore that sir and khudkashat land and grove had contiD
nued to be property of the appellant and would therefore
remain liable to be sold fo execution proceedings would fail
in view of the notification under s. 4 unless of course there is
a provision otherwise in the Act."
·
The Court further held that-
"the proprietary right in sir and khudkashat land and
grove land which were _mortgaged would be extinguished-and
the bhumidhari right which is created by s. 18 would be a
new right altogether and would not therefore be considered
to be, included under the mortgage in this case".
E
The learned counsel very much relied upon the discussion in the
F
decision with reference to section 6(h) of the Act which provides
that-
"n9 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
G
Transfer of Property Act, 1882, be enforceable against his
interest in the estate."
Dealing .with the question this Court observed as follows :-
"Therefore, s.6(h) read with s. 73 directs that the mortgagee shall proceed in the manner provided in s. 73, name)y,
H
follow the compensation money, and there is no other way
possible for him in view> of s.6(h) with respect to the pro-
A
198
SUPREME COURT REPORTS
[ 197 6] 2 S.C.R.
perty which has bee'a acquired under the Act. We have held
that sir and khudkasht land and grove land have been acquired under the Act and have vested in the State; therefore the
mortgagee is relegated to enforce his rights against the mortgagor in the manner provided in s. 73 of the Transfer of Property Act and in no other way."
B
But for the provision under section 6(h) the mortgagee would have had
nothing to follow upon under the mortgage decree as the proprietary
interests in the land yielded to new bhumidhari rights under the Act,
and the mortgage decree had reference only to the earlier proprietary
rights.
This decision is a complete answer to the submission of the learned
C
counsel.
The above case of this Court was followed in Shivashankar
Prasad Shah & Ors. v. Baikunth Nath Singh & Ors.('t)
D
E
The learned counsel, however, drew our attention to a. decision of
this Court in Kai/ash Rai v. Jai Jai Ram and others( 2 ) where this
Court had to deal with the expression 'possession' under section 18 (1)
(a) of the Act.
This Court held that-
"the expression 'possession' in clause (a), in our opinion,
takes is not only actual physical possession, but also constructive possession that a person has in law."
This decision was cited ·by the learned counsel in order to get some
assistance from section 18 of the Act.
We are, however, not required to deal with the nature of rights, if a:ny, which section 18, may
confer upon the appellant with regard to the land comprised in the
erstwhile intermediary's interest which may
be
available
to
the
vcndees.
These rival claims with regard to the rights in the land
conferred under section 18 of the Act will have to be worked out by
the parties, if they are so advised, in appropriate proceedings and we
express no opinion on that aspect of the case in this appeal.
F
We are, therefore, clearly of opinion that the decree for pre-emption
in this case was not capable of execution.
In the result the appeal
fails and is dismissed, but we will make ,no order as to costs.
V.P.S.
(1) [1969] 3 s. c. R. 909.
(2) A. I. R. 1973 S. C. 893.
Appeal dismissed.