PATEL RAMBHAI BECHARBHAI Vs. PATEL DAHYABHAI BECHARBHAI

JUDGEMENT

(1.) 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 1st 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.

(2.) 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 125/1 in village Chikhold, Taluka Kapadvanj, District Kaira in the State of Gujarat. On June 9, 1933, he sold the same by an oral vardi 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 1st appellant by an oral vardi for Rs. 2,521 and the 1st appellant got possession thereof on the said date. In a partition that was effected in the joint family of the 1st appellant No. 93 went to the share of the 2nd appellant and the remaining two lands fell to the share of the 1st 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 with S. 18 and S. 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 applications 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 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 Nadiad. On May 27, 1947 Bombay Agricultural Debtors Re1ief Act 28 of 1947, hereinafter called the new Act, came into force and under S. 56 (2) thereof the Bombay Agricultural Debtors Relief 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 Kapadvanj 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 in the Civil Judge. On April 24, 1950, the 1st respondent made an application before the Civil Judge for adding the 2nd appellant as a party-respondent 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, but that was summarily rejected. After the remand, the Civil Judge held that the transaction was not a mortgage and the appellants had acquired title to the lands by adverse possession. Against that order the 1st respondent preferred an appeal to the District Judge, who, by his order, dated October 16, 1958, held that the mortgage subsisted and that the appellants had not acquired title to the said lands by adverse possession. In that 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.

(3.) The learned Solicitor-General, appearing for the appellants, raised before us the following four points: (1) Under the repealed Act the Board would have jurisdiction to entertain an application 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., on or before October 31, 1945, and, as no such application was filed either against the 1st appellant or against the 2nd appellant before that date, the order of the Board adding the 1st appellant on December 4, 1945, and the order of the Civil Judge adding the 2nd appellant on August 2l, 1950 were without jurisdiction and, therefore, void; as the said orders were without jurisdiction, the appellants had acquired a vested interest in the property and the new Act does not affect the said right. (2) The appellants had acquired a right to the said lands by adverse possession. (3) The application to the Board to investigate the 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.