CHARANJIT LAL ETC Vs. TARA SINGH ETC

JUDGEMENT

(1.) This second appeal has been filed by the defendants under the following circumstances :-

(2.) The possession over the lands had been exchanged and the transaction had been reported to the Patwari who had made entries in the register of mutations, copy Exhibit P.4. The mutation officer had forwarded the proceedings to the Deputy Commissioner who had wrongly been described as the Collector in these proceedings. After a protracted inquiry, the Deputy Commissioner finally declined to sanction this permanent alienation in 1942. The defendants had thereupon filed suits to get back the possession of the lands that they had given away in this transaction of exchange. They had offered to restore possession of the lands that had acquired from the respondents under that transaction. These suits had been dismissed by the trial Court and appeals filed by the present appellants to this Court of first appeal and then to the High Court had been dismissed one after the other. Exhibit P.7 is the copy of the judgment dated Ist July, 1946 of the High Court of Judicature at Lahore. It has already been held inter partes in that judgment that the transmission of the mutation proceedings by the Revenue Officer to the Deputy Commissioner, was to be deemed to be an application under Section 3 for the Deputy Commissioner's sanction to the transaction. The argument of the learned counsel for the appellants that no formal application under Section 3 of the Act had been presented to the Deputy Commissioner was, therefore, rejected. This objection cannot, therefore, be allowed to be raised again in these proceedings and in view of the Lahore High Court judgment inter partes, the case has to be dealt with on the footing that the Deputy Commissioner had finally refused to sanction the exchange of lands.

(3.) The Act was repealed by the Adaptation of Laws (Third Amendment) Order, 1951 which was published in the Gazette of India on 4th April, 1951. The reason was that the provisions of the Act were repugnant to the Constitution of India. The respondents had, therefore, filed this suit in 1960 for the possession of the land which they had given away to the appellants under the transaction of exchange. It was alleged that the alienation of this land took effect only as a usufructuary mortgage in form 'a' of Section 6(1) and that with the expiry of a period of 20 years, the plaintiff-respondents were entitled to redeem the land without any payment. The suit was registered by the defendant-appellants on a number of grounds but the main ground with which we are concerned here was that the repeal of the Act had the effect of reviving the original character of the alienation, which was an exchange of lands on a permanent basis. The learned trial Court was of the view that it was still open to the Deputy Commissioner to review his order refusing to sanction the transaction of exchange and that the plaintiff-respondents' right to redeem was no more than inchoate or imperfect right. The trial Court had relied upon a Full Bench decision of this Court in Risaldar Major Amar Singh Uttam Singh v. R.L. Aggarwal and Others, 1960 AIR(P&H) 312, to conclude that with the repeal of the Act, the statutory compulsion had been lifted and the transaction which was not void ab initio had resumed its original character of permanent exchange of lands. The suit had, therefore, been dismissed by the trial Court. On an appeal filed by the plaintiff-respondents, the learned Senior Sub Judge at Amritsar has taken a different view. The counsel for both the parties had placed reliance on the Full Bench decision in Risaldar Major Amar Singh's case , but the lower appellate Court had distinguished this ruling on the ground that in the case cited, the sanction of the Deputy Commissioner to the alienation had never been refused and that the possibility of the Deputy Commissioner granting that sanction at any time during the term of 20 years for which the transaction had taken effect as a mortgage could not be ruled out altogether. In the case in hand, however, this sanction had been expressly declined by the Deputy Commissioner. With the repeal of the Act, there was no Deputy Commissioner functioning under the Act, who could have reviewed his decision declining sanction to the transaction of exchange. The rights of the parties were, therefore, found to have taken final shape as mortgagor and mortgagee and the plaintiff's right to redeem the land was found to have taken a perfect or final shape. There were no inchoate rights which could taken away with the repeal of the Act. The rights of the parties as mortgagor and mortgagee had become vested rights with the express refusal of the Deputy Commissioner to accord sanction to the transaction of exchange as such. This view taken by the lower appellate Court may appear to be quite sound and can be supported by ample authority.