PIRJI SAFDAR ALI Vs. IDEAL BANK LTD

JUDGEMENT

(1.) Execution Second Appeals Nos. 1654 of 1946 and 1553 of 1946 have been referred to a Full Bench in view of the difficulty and importance of certain questions of law that arise in them. The most important question which necessitated this reference wag whether the authority of the Division Bench judgments of this Court in Thakar Das V/s. Roshan Din A.I.R. 1933 Lah. 897, Chhaju Ram V/s. Muzaffar Ahmad A.I.R. 1936 Lah. 845 and Sahib Dayal and Anr. v. Jamaluddin and Ors. A.I.R. 1937 Lah. 194 had not been impaired by the Full Bench judgment in Punjab National Bank Ltd. Ferozepore City V/s. Ram Karan Ramji Lal and Ors. A.I.R. 1940 Lah. 370 (F.B.) and whether those judgments can otherwise be held to lay down good law. The question involved in these judgments was whether in view of Section 16, Punjab Alienation of Land Act, the executing Court had jurisdiction to refuse sale of the land belonging to a member of a notified agricultural tribe when the decree sought to be executed was a mortgage decree and contained a direction for the sale of agricultural land covered by the mortgage.

(2.) In order to properly appreciate the points involved in these appeals and to find a correct solution to the problems raised it is necessary to set out shortly the facts and the circumstances that have led to this reference. One Pirji Safdar Ali, a resident of Delhi, is a lessee of certain rights in agricultural land measuring 26 bighas 16 biswas kham in the area of Mauza Basalwa, Tahsil Balabgarh, District Gurgaon. He holds perpetual lease-hold rights in these plots of land which belong to different persons. The purpose of the lease is to grow hina plants and to derive benefit from the produce of these plants. In January 1934 an equitable mortgage of his leasehold rights was created by Pirji Safadar Ali in favour of the Ideal Bank, Ltd., Delhi. The object of this equitable mortgage was to secure an overdraft account between the debtor and the creditor.

(3.) On 21 August 1941 a suit was brought on the foot of this mortgage by the Bank for the recovery of Rs. 1,546-4-3 principal and interest. This suit was defended on a number of grounds by the debtor. It is, however, unnecessary to mention all those grounds as they are not necessary or relevant in the present enquiry. The only ground that concerns us here was that the mortgaged property fell within the definition of the phrase "land" defined in the Punjab Alienation of Land Act, and, therefore, could not be sold in execution of the decree in view of the provisions of that Act. This plea was covered by issue 1 which ran thus: Is defendant 1 a member of an agricultural tribe 1 Is the mortgage property land within Act I of 1900? Is it not liable to be sold in execution of Civil Court's decree? The judgment on this issue was delivered in these terms: The term Sardrakhti was considered and interpreted in Muhammad Ismail V/s. Shams-ud-Din A.I.R. 1920 Lah. 310). There it was held that a sale of Sardrakhti rights of the tenant will mean the sale of the right owned by the lessee in the trees and not the actual trees themselves. Such a sale was held not to be a sale of land within the meaning of Section 3, Punjab Pre-emption Act, read with Section 2(3), Punjab Alienation of Land Act. In ordering the sale of the Sardrakhti rights of defendant 1 in execution of the decree, if passed, the Court will not be ordering the sale of land as defined in the Alienation of Land Act but some rights in land which do not constitute land. Kajumal V/s. Saligram A.I.R. 1924 P.C. 1 was cited by the counsel for defendants 5 and 6. It was held therein that land let out for plantation of tea will be agricultural land let out for purposes of agriculture. This ruling is clearly distinguishable from the facts of the case. Here land itself is not being sold. Following Muhammad Ismail V/s. Shams-u-Din A.I.R. 1920 Lah. 310, I find this issue against defendants 4 to 8. In order to discover the true import of this decision reference may be made to the decision of the Bench in Muhammad Ismail V/s. Shamus-ud- Din A.I.R. 1920 Lah. 310. In this case, the vendor was the tenant of certain land under a lease made in 1888 in which it was stated that the land was leased waste lagane sardrakhti, i. e, for the planting of a grove of trees or plantation. The lease was for seven years and after expiry of that period the lessor was to receive the of the produce of flowers, fruits, etc., of the land. Another condition was that if the lessor wanted to evict the lessee after the expiry of the seven years he would pay the latter the value of his sardrakhti. By a deed of sale made in 1914 the vendor sold his sardrakhti in the land i.e., the rights owned by him in the trees. The plaintiff sued for pre-emption in respect of the sale and the questions for decision were, whether the subject of the sale came within the definition of (1) agricultural land in the Punjab Pre-emption Act, Section 3, read with the Punjab Alienation of Land Act, 1900, Section 2(3)(b) as being a share in the profits of an estate or holding, or (2) immovable property under the Punjab Pre-emption Act, Section 3. It was held, that the temporary rights which the vendor had in the produce of the trees under the lease did not constitute him owner of a share in the profits of the holding and that consequently the subject of the sale as not agricultural land within the meaning of the above section. Scott-Smith, J. who delivered the judgment of the Court in this case observed as follows: What has been sold is the lessee's rights in the trees and their produce. Now, the lessee's rights are only temporary ones, and though, as long as he is in possession as such lessee, he is entitled to keep the produce after deducting the landlord's share, I do not think it can be said that these temporary rights constitute him owner of a share in the profits of the holding. I think the definition is intended to apply only to the proprietor who owns a permanent share in the profits, and not to a mere tenant at will who is entitled to reap the produce as the fruits of his labours. I am, therefore, of opinion that what was sold was not agricultural land.