ABBASALI YUSUFALI Vs. FAZALALI ISUFALI

JUDGEMENT

(1.) This is a revision application against an order passed by the learned District Judge Broach dismissing the appeal of the petitioner against an order made by the learned Civil Judge Junior Division Jhagadia in execution proceedings against the present petitioner who was original defendant No. 5 in the suit in which the relevant decree was passed. This revision application raises a question under the Bombay Agricultural Debtors Relief Act 1947 (hereinafter referred to as the Act). The facts leading to this application are this way:

(2.) It is necessary to state that both the debtor as well as the creditor are from the former Rajpipla State. The Act was applied to the former Rajpipla State on 15th September 1948 on its merger with the former State of Bombay by the Bombay Merged Areas (Amendment of Laws) Act 1949 - The date 1st August 1947 in sec. 4 was substituted by the date 15 June 1949 for the territory of the former Rajpipla State. Sec.4 of the Act provides as follows:

(3.) The contention of Mr. Desai was that by reason of the facts which will be presently referred to the land in question being in the possession of a receiver and cultivated by the receiver through either the tenants or servants or hired labourers the possession of the receiver should be deemed to be the petitioners possession and that the cultivation by the receiver in this manner should be deemed to be the personal cultivation of the petitioner. It is the case of the petitioner that his father was cultivating the land in question since 1935; that his father died on the 28 December 1942; that the petitioner being born in 1926 was at the time of the death of his father a minor and that immediately after his fathers death the petitioner was dispossessed of the land in question. The petitioner therefore filed a suit on the 2nd February 1944 in the Court of the former State of Rajpipla and immediately after filing of the suit a receiver was appointed who took possession of the land in question. After the merger the suit was renumbered in the Jhagadia Court and the Jhagadia Court passed a decree in favour of the plaintiffs title and also for possession on 30th November 1950. Now personal cultivation is required under clause (iii) of sec.2 (5)(a) of the Act for two years immediately preceding the date of the coming into operation of this Act. So in this case the personal cultivation that would be required would be for two years prior to 15th September 1945. In other words he should have cultivated personally for two cultivating seasons prior to 15th September 1948. Both the Courts came to the conclusion that this condition was not satisfied in regard to the petitioner. Mr. Desai's argument however was that the suit was decreed in favour of the petitioner on 30th November 1950 and that prior to that date the lands were in possession of the Receiver who had got the lands cultivated either through the tenants or through servants or hired labourers when the Receiver was appointed sometime in 1944. Mr. Desai contended that the Receiver cultivated this land for at least two years prior to 15th September 1948 and that therefore the cultivation by the Receiver should be deemed to be cultivation by the petitioner. Mr. Desai in support of his argument relied on the case of Sri Sri Nandkishore Ananga Bhima Dev Kesari Gajanathi v. Susilamala Patta Mahadevi and others A. I. R. 1940 Madras 850 where on a difference between Mr. Justice Burn and Mr. Justice Stodart the case was referred for the opinion of Mr. Justice Wadsworth and Mr. Justice Wadsworth agreed with the opinion expressed by Mr. Justice Burn to the effect that the possession of a receiver pendente lite must be held to be the possession of the party who is ultimately declared to be successful. At page 850 of the report Mr. Justice Burn observes as follows: