LILACHAND TULJARAM GUJAR AND OTHERS versus MALLAPPA TUKARAM BORGAVI AND OTHERS

Citation: [1960] 1 S.C.R. 693 · Decided: 11-09-1959 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Dismissed

Judgment (excerpt)

-
S.C.R. 
SUPREME COURT REPORTS 
693 
and the provisions contained in Part XVIII of the 
Constitution. This contention also fails. 
It now remains to notice three points that were 
urged during the course of arguments on behalf of the 
appellants, namely, (i) s. 4 (1) of the Ordinance is hit 
by Art. 20 (1) of the Constitution, (ii) s. 11 (1) is hit by 
Art. 22 (1) of the Constitution, and (iii) the' Special 
Judge has no jurisdiction to try an offence under the 
Explosiv-e Substances Act. Apart from the fact that 
these points not having been raised by the appellants 
in their writ petition or urged before the High Court, 
we should be reluctant to permit them to raise these 
points for the first time in this Court, we may, in 
passing, point out that the offences for which the 
appellants are being prosecuted are said to have taken 
place in June 1957 and that they have been allowed to 
engage lawyers of their choice. They can therefore 
have no grievance so far as the first two points are 
concerned and we leave them to be decided in a case 
where there is grievance. There is no substance in the 
third point. 
There is no force therefore in this appeal and it is 
hereby dismissed. 
Appeal dismissed. 
LILACHAND·TULJARAM GUJAR AND OTHERS 
v. 
MALLAPPA TUKARAM BORGA VI AND OTHERS 
(S. R. DAS, C.J., M. HIDAYATULLAH and 
K. c. DAS GUPTA, JJ.) 
Occupancy, relinquishment of-Registered occupant surrender-
ing occupancy-Such surrender, if and when can bind other occupants 
-Bombay Land Revenue Code, r879 (Bom. V of r879), s. 74. 
The suit out of which the present appeal arose was one for 
redemption of some occupancy lands, owned and mortgaged by 
two brothers, S and A, the Khata of the lands standing in the 
name of S as the registered occupant under s. 74 of the Bombay 
Land Revenue Code, 1879. The mortgage, which was a usufruct-
uary one, was executed by S and A in 1888 in favour of the 
predecessors-in-interest of the appellants. By a Rajinama filed 
under s. 74 of the Code in 1900, S made an unconditional 
88 
I959 
Rehman Shagoo 
and Others 
v. 
State of Jammu 
and Kashmir 
Wanchooj. 
I959 
September II. 
694 
SUPREME COURT REPORTS [1960(1)) 
1959 
surrender of the occupancy. On the same.day the mortgagees by 
a Kabuliyat prayed that the occupancy in the mortgaged property 
, 
Lilachand. 
might be granted to them. Both the Rajinama and· the Kabuliyat 
Tul;aram Gu;ar were granted by the Mamlatdar. By the Rajinama S did not, 
v. 
however, purport to relinquish the occupancy on behalf of A. 
Mallappa Tukaram After the death of S, A applied to the Mamlatdar for the cancel-
Bor1avi 
lation of the transfer in favour of the mortgagees and registering 
the mortgaged property in his name. That application was 
rejected. The heirs of S, claiming also to be the heirs of A, 
brought the suit for redemption. The defence of the appellants 
was that the plaintiffs were not the heirs of A .and that the right 
of redemption in the entire occupancy had been extinguished by 
the Rajinama. The administrators of the estate of A were then 
added as defendants but were later on transposed to the category 
of co-plaintiffs. The courts below found against the appellants. 
Hence this appeal by special leave. The question for determin-
ation was whether the surrender by S amounted to a relinquish-
ment of the entire occupancy including the share of A. 
Held, that the Rajinama could in no way affect the right of 
A to his share in the occupancy and the right of redemption in 
respect of his share still ,subsisted. 
Under s. 74 of the Bombay Land Revenue Code, 1879, 
rightly construed, the registered occupant had no inherent or 
independent right, in the absence of any authority, express or 
implied, which must be clearly pleaded and strictly proved, to 
give a notice of relinquishment so as to affect the interest of 
other occupants as well. Although the section conferred certain 
rights and imposed certain obligations on the registered occupant, 
it was not intended to take away the rights of other occupants. 
Lalchand Sakharam Marwadi v. Khendu Kedu Ugbade, 22 
Born. L.R. 1431, referred to. 
Held, further, that even though A's application to get the 
mortgaged property register_ed in his name had failed, there could 
be no question of adverse possession since the possession of the 
mortgagees had a lawful origin in the usufructuary mortgage. 
Nor could a mere assertion of adverse title affect the subsisting 
equity of redemption or shorten th

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