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1966 DIGILAW 432 (ALL)

Autar Singh v. Bhawan Singh

1966-10-13

SATISH CHANDRA

body1966
ORDER Satish Chandra, J. - This revision is directed against an order u/s 22 of the UP Regulation of Agricultural Credit Act 1940, (hereinafter referred to as the Act) granting an application by the opposite parties for possession of the land in dispute. 2. One Genda Singh, who was the owner of the land in dispute, executed on 28-2-1941 a deed of sale in favour of Autar Singh, the present Applicant. On 17-5-1945 Bhawan Singh, opposite party No. 1 and Udey Singh, father of opposite party No. 2, filed a suit for a declaration that the sale deed aforesaid operates only as a usufructuary mortgage. The present Applicant, Autar Singh, contested that suit. He pleaded that the Plaintiffs were not entitled to sue, that the suit was barred by res judicata as well as time and that the vendor had legitimate grounds for not applying to sell and was entitled to exemption. It is noticeable that there was no plea that the subject matter of the sale deed was not protected land within the meaning of the Act. The learned Revenue Officer repelled the various pleas in bar and decreed the suit on 26-11-1945. He held that the vendor had not obtained the permission of the Assistant Collector as required by Section 24 of the Act and declared that the sale deed executed by Genda Singh could operate as a usufructuary mortgage for a period of 20 years. Aggrieved, the present Applicant went up in appeal (Civil Appeal No. 20 of 1946). The learned District Judge of Kumaon dismissed the appeal on the merits on 30-3-1948. 3. On the expiry of 20 years from the date of the sale, the heirs of Genda Singh filed an application (No. 18 of 1961) u/s 22 of the Act for possession of the mortgaged property on the ground that the mortgage had come to an end. This suit was resisted by the vendee mortgagee, Autar Singh, on the principal ground that the previous decree dated 24-11-1945 was without jurisdiction and the sale deed executed by Genda. Singh operated as a sale and not as a mortgage. The court below has repelled this plea. It held that the previous decree would not be without jurisdiction on the grounds taken in defence, that there was no local rate imposed on the land. It granted the prayer for possession. 4. Singh operated as a sale and not as a mortgage. The court below has repelled this plea. It held that the previous decree would not be without jurisdiction on the grounds taken in defence, that there was no local rate imposed on the land. It granted the prayer for possession. 4. This decision is impugned in the present revision. Learned Counsel for the Applicant has urged that the previous decree was totally without jurisdiction and was a nullity; the present proceedings were in the nature of execution and the Applicant was in law entitled to resist the execution on the ground that the decree was void and unenforceable. It is unnecessary to deal with the competence of the Applicant to raise this plea because the plea has no merits. The plea is that the Act applied to protected land. Section 24 read with Section 12 of the Act prohibited a permanent alienation of the protected land of a proprietor except under a permission sanctioned by the Assistant Collector Incharge of the Sub-Division in which the protected land was situate. Section 25 of the Act provided that where a permanent alienation of protected land has been made otherwise than in accordance with the provisions of this Act it shall take effect as a mortgage in the form prescribed by Clause (a) of Sub-section (1) of Section 13. If, so runs the submission, the land sold by Genda Singh was not protected land as defined by the Act, these provisions would not be applicable and the court will be incompetent to touch the sale deed and declare that it will take effect as a mortgage. 5. It is, therefore, necessary to see if the land which is the subject matter of the sale deed was protected land or not Section 2 Clause (12) of the Act defines "protected land". It says: "Protected land" means-- (a) with reference to a proprietor liable to pay local rate not exceeding twenty-five rupees per annum, all his land; and (b) with reference to a proprietor liable to pay local rate exceeding twenty -five rupees per annum, So much of his land as is declared to be protected under the provisions of Section 4 and has not ceased to be protected land in accordance with the provisions of Section 5; Section 2 Clause (8) of the Act defines "local rate". According to this, "local rate" means the rate payable by or recoverable from a proprietor under the provisions of the UP Local Rates Act, 1914. The contention for the Applicant is that no local rate was payable recoverable under the UP Local Rates Act, 1914, in the district of Garhwal where the and in dispute is situate. The Applicant had filed a copy of the gazette notification (paper No, 22-C) stating that the District Board of Garhwal had imposed a local rate of 9-3/8% on every estate in the rural area of the district with effect from 1-10-1948. On the strength of this notification it is urged that the local rate having been imposed by the District Board for the first time in 1948, there was no levy of local rate in 1941 when the sale deed was executed. This is based upon a misapprehension of the relevant provisions. Section 3 of the UP Local Rates Act, 1914, as originally enacted, authorised the Lieutenant Governor to impose the rate. In exercise of that power the Lieutenant Governor sued a notification (No. 250/1-243 dated 29-1-1915) imposing on every estate in Agra and Oudh a rate of the amounts mentioned therein. 6. In 1922 the UP District Boards Act 10 of 1922 was enacted. Section 109 of this Act substituted Section 3 of the UP Local Rates Act, 1914. Section 3 after its substitution authorised the District Board or any district to impose the rate by notification in the official gazette. 7. Section 108 Clause (a) of the UP District Boards Act also provided that the Board shall impose a local rite u/s 3 of the UP Local Rates Act, 1914. But, Section 110 of the UP District Boards Act provided that: The rate leviable in respect of the estates in a district at the commencement of this Act u/s 3 of the UP Local Rates Act, 1914, shall be deemed to have been imposed by the board of that district under Clause (a) of Section 108. Similar provision was made by Rule 286-A of the Rules framed under the UP Local Rate; Act, 1914. Similar provision was made by Rule 286-A of the Rules framed under the UP Local Rate; Act, 1914. The relevant part of this rule says: Until rates are so imposed by the District Boards, the following rates imposed by the State Government under Notification No. 250/1-243, dated 29-1-1915 (as subsequently amended by notification No. 2510/1-243, dated 10-12-1915), shall, subject to such orders as might have been or may be passed by the State Government from time to time in respect of the imposition of special rates in individual districts, continue in force u/s 110 of the UP District Boards Act, 1922 (UP Act X of 1922) The rest of the rule lays down the various rates on which the local rate is fixed in various parts of the State. 8. This provision, therefore, makes it clear that the local rate was imposed by the State Government and the same continued to be enforced until the District Boards make a fresh imposition. Until 1-10-1948 when the District Board of Garhwal imposed a local rate, the previous imposition by the State Government continued to operate. The contention raised by the Applicant that there was no levy of local rate in 1941 and as such the land was not protected land within the meaning of the Act is without merit. 9. In this view it is unnecessary to decide whether the Applicant is competent to raise this plea in the present proceeding, he being a party to the previous proceeding and not having raised this objection there. 10. In the result, the revision fails and is dismissed with costs.