VIDYA SAGAR v. SUDESH KUMARI & OTHERS
Citation: [1976] 2 S.C.R. 193; 1975 INSC 250
Court: Supreme Court of India
Bench: A. ALAGIRISWAMI , P.K. GOSWAMI, N.L. UNTWALIA
Judgment date:
Case summary
1975 INSC 250. Supreme Court of India judgment dated 1975-10-08. VIDYA SAGAR v. SUDESH KUMARI & OTHERS. Read the judgment and case details on LawSphereX.
Judgment text
194 SUPREME COURT REPORTS (1976] 2 S. C. R. VIDYA SAGAR v . • SUDESH KUMAR! & OTHERS October 8, 1975 [A. ALAGIRISWAMI, P. K. GOSWAMI AND N. L. UNTWALIA, JJ. ] B- U. P. Zamindari Abolition and Land Reforms AcJ, 1950 (1 of 1951), ss. 4 and 6-Pre-emption decree-If executable after tlze application of Act to land. The co-sharen with the appellant, in the proprietary interest of certain lands. sold their share to the respondents. The appellant fil~d a suit fo~ pre4 f ' emption, and in pursuance of the decree in his favour_ deposited the consideration of the sale deed in court. But, before that date, that is, from July 1, 1970, the U. P. Zamindari Abolition and Land Reforms Act 1950. had. come into force in the district where the property was situate. On the question whether the decree was executable, HELD. : The decree was inexecutable in view of ss. 4 and 6 of the Act.
(a) Having deposited the money, the appellant got himself substituted for the vendees in respect of the share in the property. But, since the veodees were still in possession after their purchase, the appe! lant had to obtain possession of the land and for that purpose had to take execution proceedings. The appellants' right to possession was, thus, based upon the decree which I> was itself based on the fact that he was a co-sharer of the proprietary right in the land. Since, however, on and from July 1, 1970, nnder ss. 4 and 6 of the Act, all rights, title and interest in that land ceased to exist and vested in the State, and nothing survived in favour of the erstwhile proprietors-the appellant or the vendors-the decree became devoid of substance and incapa· ble of execution. Jt could not be contended that the decree was still execu"' table in the absence of an express provision voiding the decree or taking away the right under the decree by operation of law.
[196B-G] (b) The decision of this Court in Rana Shea Ambar Singh v. Allahabad Bank Ltd. , [19621 2 S. C. R. 441 is a complete answer to the submission of the appellant. In that case, it was held that on the application of the Act to the mortgagor"; estate, but for s. 6 (h) of the Act, the mortgagee would have nothing to proceed against under his mortgage-decree, and that under that provision, a special remedy was provided in. favour of a mortgagee for proceeding only against the compensation money under s. 71, Transfer of Property Act. . [198 A-Cl Shivshankar Prasad She. Ji and Ors. v. Baikunt/z Nath Singh &; Ors. , [1969~ 3 s. C. R. 909, referred to. [The rival claims with. regard to the rights. if any, in the land under s. 18 • ? f the Act. will have to be w·orked out by the parties in appropriate proceedings. ] [198E-F] Kailas/z Rai v. Jai lai Ram and others, A. I. R. 1973 S. C. 893, ·referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1537 of 1974.
Appeal by special leave from the judgment and order dated the 23rd November, 1973 of the Allahabad High Court in Execution Secon,1 of s. 6(h) with respect to the pro-perty which has bee'a acquired under the Act. We have held that sir and khudkasht land and grove land have been acquired under the Act and have vested in the State; therefore the mortgagee is relegated to enforce his rights against the mortgagor in the manner provided in s. 73 of the Transfer of Property Act and in no other way. " But for the provision under section 6(h) the mortgagee would have had nothing to follow upon under the mortgage decree as the proprietary interests in the land yielded to new bhumidhari rights under the Act, and the mortgage decree had reference only to the earlier proprietary rights. This decision is a complete answer to the submission of the learned counsel. The above case of this Court was followed in Shivashankar Prasad Shah & Ors. v. Baikunth Nath Singh & Ors.
('t) The learned counsel, however, drew our attention to a. decision of 2 this Court in Kai/ash Rai v. Jai Jai Ram and others( ) where this Court had to deal with the expression 'possession' under section 18 (1) (a) of the Act. This Court held that- "the expression 'possession' in clause (a), in our opinion, takes is not only actual physical possession, but also cons-tructive possession that a person has in law. " This decision was cited ·by the learned counsel in order to get some assistance from section 18 of the Act. We are, however, not requir-ed to deal with the nature of rights, if a:ny, which section 18, may confer upon the appellant with regard to the land comprised in the erstwhile intermediary's interest which may be available to the vcndees.
These rival claims with regard to the rights in the land conferred under section 18 of the Act will have to be worked out by the parties, if they are so advised, in appropriate proceedings and we express no opinion on that aspect of the case in this appeal. We are, therefore, clearly of opinion that the decree for pre-emption in this case was not capable of execution. In the result the appeal fails and is dismissed, but we will make ,no order as to costs. V. P. S. Appeal dismissed. (1) [1969] 3 s. c. R. 909. (2) A. I. R. 1973 S. C. 893.
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