GOV ARDHAN DASS & 8 ORS v. SMT. SITABAJ

The alternative claim put forward on behalf of the appellan1s was that, under the decree passed on the basis of the award, and in the proceedings for insolvency of Ramachandrarao, tl1c rights in this land were acquired by the mortgagees 1hrough the pro ceedings taken by the courts. The claim was that the rights of Shankerrao passed to the mortgagees when the mortgagees pur chased his righ·ts in execution of the decree in Civil Suit No. 12-A. Judge. Khandwa of 1942 of the Court of Additional District passed on the basis of the award given hy Sri Vipat. while remaining 1 /3rd share of Ramachandrarao also passed to wh.~n his rights were transferred by the Insolvency Court. This claim, clear!)', fails in view of the provisions of s. I 2 or s. 49 of the Act as they stood at the relevant time. Section 49 deals with the right of transfer of lands cultivated by an ex-proprietary occupancy tenant, while s. I 2 deals with the right of transfer of lands cultivated by an occupancy tenant. We need not go mto F· G :. H GOVARDHAN V. SITABAI (Bhargava, J.) 275 A B c D E F G H the question whether the expression "occupancy tenant" in s. 12. If does or does not include an ex-proprietary occupancy tenant. it be held that the mortgagees had become ex-proprietary occu pancy tenants of the land in 1895 as a result of the execution of usufructuary mortgages, the provisions of s. 49 would apply. As a result of those provisions, the rights of 1he ex-proprjetary occu pancy tenant could not have been transferred in favour of the mortgagees. Section 50, as it was at that •time, did permit trans fer of certain rights of an ex-proprietary occupancy tenant; but, to be valid, such transfers required permission of the appropriate In this case, there is no suggestion that, when revenue authority. transfers were obtained by the mortgagees in pursuance of the decree in Suit No. 12-A of 1942 and in pursuance of the insol vency proceedings against Ramachandrarao, the transfers pur ported to be effected were made with the permission of the appro priate authority. Consequently, under s. 49, those transfers would be void. Taking 1he case of the second alternative that the mortgagors did not become ex-proprietary occupancy tenants in 1895 and were occupancy tenants simpliciter when the Act came into force, the transfers in favour of the mortgagees under the decree in Civil Surt No. 12-A of 1942 and in the insolvency proceedings would be in contravention of s. 12 of the Act. It appears that the revenue authorities, in restoring possession to Sitabai on her application purporting to be under s. 13 of the Act, proceeded on the basis of this second alternative that. the rights of the mortga gors were governed by s. 12 of the Act. We are unable to hold that, in this proceeding, the revenue authorities committed any error. Section 12 barrec\ ,the transfer of the cultivatory rights of an occupancy tenant in execution of the decree of a civil court or in insolvency proceedings. In fact, such rights did not vest in the Insolvency Court at all under the Provincial Insolvency Act. Consequently, the mortgagees could not acquire title to cultivatory right by virtue of the proceedings taken in execution of the decree in civil suit or in the insolvency proceedings. The right continued to vest in the mortgagors and the respondent, who was entitled as the sole survivor to those rights, was rightly res tored to possession by the revenue authorities. The decision of the revenue authorities was challenged on one other ground viz., that the jurisdiction to grant relief under s. 13 of the Act is confined to cases where one of the co-tenants illegally dispossessed and not claims possession on being in a case where the sole tenant has been dispossessed. It appears to us that this is immaterial, because relief from the same revenue authority could be claimed by a sole tenant by an applicatior under s. 100 of the Act. The application filed by Sitabai for restoration of possession could, therefore, be treated as an appli- 276 St:PREME COURT REPORTS [ 1969] I S.C.R. cation under s. I 00 of the Act in case she was the sole tenant, and the grant of relief to her was not without jurisdiction. In these circumstances. it is clear that the appellants are not entrtled to claim possession in this suit. The appeals fail and are dismissed with costs. One hearing ~ Y.P. Appeals dismissed. A B