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Raghunath Hari Deshpande Vs. Kashinath Ramchandra Deshpande - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 273 of 1955
Judge
Reported inAIR1958Bom223; (1957)59BOMLR691
ActsTenancy Law; Bombay Tenancy and Agricultural Laws Act, 1948 - Sections 29, 85, 89 and 89(2)
AppellantRaghunath Hari Deshpande
RespondentKashinath Ramchandra Deshpande
Appellant AdvocateV.H. Kamat, Adv.
Respondent AdvocateG.M. Joshi, Adv.
Excerpt:
.....right to obtain possession on that date, without having to file a suit afterwards, was a vested right which the plaintiff obtained on the date of the decree:;hodges v. snyder (1923) 261 u.s. 600, 67 law ed. 819 and pennsylvania v. the wheeling and belmont bridge co. (1856) 18 how. 421, 15 law ed. 435 referred to.;that even if the right was a vested one, the proceedings which were undertaken to enforce that right could not be said to be proceedings which are permitted by section 89(2) of the bombay tenancy and agricultural lands act, 1948, because the suit in which the decree sought to be executed was obtained was not a suit with regard to the rights which were vested in the plaintiff before the act came into force;;that in the absence of the word 'instituted' in section 89(2),..........the word 'instituted' in the general clauses act, only those legal proceedings in respect of a vested right are not affected as could be said to be pending when the act came into force, that is, in this case, the 28th of december 1948, when the act was made applicable to the area in which the land in suit is situated. it has also been held that where a suit with regard to any right which has vested has already been filed and a decree has been obtained upon it before the act of 1948 came into force, proceedings for execution of that decree are merely a continuation of the suit and they can be filed even after the act of 1948 came into force. mr. kamat, who appears on behalf of the plaintiff, relies upon this ruling and says that originally the plaintiff had filed a suit contending.....
Judgment:

1. This is a second appeal arising from execution proceedings of a consent decree passed on 7th of November 1946. By that compromise decree the parties agreed that the respondent was to remain in possession until the period of a lease with regard to Which there was a dispute between the parties in the suit. At the end of this period on the 18th of January 1953 the plaintiff decree-holder was entitled to obtain possession of the land from the defendant. If the defendant did not hand over possession by the 18th of January 1953 the plaintiff was entitled to make an application for execution and obtain possession.

2. The defendant failed to hand over possession by the 18th of January 1953 and therefore on the 17th March 1953 the plaintiff appellant made the application for execution from which the present appeal arises for possession of the land. The respondent then met him with a contention that the lower Court had no jurisdiction to give him possession of this land because of the provisions apparently of Section 29 and Section 85 (1) of the Tenancy Act or either. The appellant contended that Section 85 (2) applied and nothing in these two sections would affect the appellant's right to obtain possession of the land in execution of the decree. This contention has been overruled and he has come in second appeal.

3. Now, it is quite clear that if the provisions of Section 89 (2) do not apply Section 29 and Section 85 (1) would have had application. Section 89 (2) provides :

'..... Nothing in this Act .....

(a) .....

(b) shall, save as expressly provided in this Act, affect or be deemed to affect

(i) any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act, or

(ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act. and any such legal proceedings shall be continued and disposed of, as if this Act was not passed.'

This Court has now taken the view that inasmuch as the saving clause does not repeat the word 'instituted' in the General Clauses Act, only those legal proceedings in respect of a vested right are not affected as could be said to be pending When the Act came into force, that is, in this case, the 28th of December 1948, when the Act was made applicable to the area in which the land in suit is situated. It has also been held that where a suit with regard to any right which has vested has already been filed and a decree has been obtained upon it before the Act of 1948 came into force, proceedings for execution of that decree are merely a continuation of the suit and they can be filed even after the Act of 1948 came into force. Mr. Kamat, who appears on behalf of the plaintiff, relies upon this ruling and says that originally the plaintiff had filed a suit contending that the defendant was a trespasser. The defendant alleged, however, that there was in his favour a rent note which he had executed in favour of the plaintiff's predecessor-in-title and inasmuch as under the provisions of the 1939 Act all leases would he deemed to be leases for 10 years, the lease in his favour was binding upon the plaintiff after his purchase. This contention appears to have been accepted by the parties when the suit which had been filed by the plaintiff against the defendant ended in a compromise decree on the 7th of November 1946. That decree provided that the defendant was to be allowed to remain in possession for a period of 10 years under the rent note which is referred to in the compromise, and on the 18th of January 1958 when this period expired the defendant was to hand over possession to the plaintiff. It is obvious, therefore, that even though the suit which the plaintiff had filed tried to make out that the plaintiff had got a vested right for possession even on the date when it was filed, he gave up this contention and he admitted by the compromise decree that the defendant was entitled to remain in possession of the properties in suit until the 18th of January 1953 as a tenant. In any case, the decree does not support the contention that the plaintiff was recognised as having a right to possession on the date the suit was filed. Now, undoubtedly the rights of the parties were that if the plaintiff had come to Court without having any right to possession the plaintiff's suit was liable to be dismissed; but the parties agreed otherwise, and what they provided by the compromise decree was that the plaintiff would be entitled to obtain possession of the suit land on the 18th of January 1953 without having recourse to any fresh litigation. In the result, therefore, it cannot be said that in this case execution proceeding which had been instituted by the plaintiff is a continuation of a suit in respect of a right which had already vested in the plaintiff, when the Act came into force. It is true that the plaintiff obtained a right to possession of the suit land on the 18th of January 1953 as a result of the decree in the suit, but this right had not vested in the plaintiff at the date when the suit was filed. The plaintiff got that right because of the compromise decree. In the result it must be taken that the plaintiff obtained the right to obtain possession only on the date of the decree.

4. Mr. Joshi contends that this is not a vested right; but I am not prepared to accept that contention. When a party obtained a decree in eviction against another, it is not possible to argue that the right which is given by the decree is not a vested right. It may be that the right had not vested in the plaintiff on the date of the suit, but that does not make any difference. When the decree provided that the plaintiff was entitled to possession of the property on 18th of January, 1953, the plaintiff's right to obtain possession on the 18th of January 1953 without having to file a suit afterwards was a vested right. Judgments are a well-known source of rights and as Crawford observes in his Statutory Construction: (Page 592).

'No statute should receive a construction which will impair an existing judgment or enlarge or validate it in any way. As a result, in case of doubt, statutes affecting judgments should be regarded as applying to subsequently secured judgments only.'

5. it appears that in the United States the private rights of parties which have been vested by the judgment of a Court cannot be taken away by subsequent legislation, but must be enforced regardless of such legislation; Hodges v. Snyder (1941) 261 US 600 , and the Court also observed in State of Pennsylvania v. Wheeling and Belmont Bridge Co. (1856) 18 How 421: 15 Law Ed 435 :

'But it is urged that the act of congress cannot have the effect and operation to annul the judgment of the Court already rendered or the rights determined thereby in favour of the plaintiff. This, as a general proposition, is certainly not to be denied especially as it respects adjudication upon the private rights of the parties.'

The proposition that the rights vested by a judgment are beyond the powers of the legislature may not be correct in India. It certainly was not in regard to the legislatures constituted before the present Constitution. But when a judgment creates a right to obtain possession without being required to file a suit in execution, the right created thereby is a vested one.

6. But even if the right was a vested one, the proceedings which have been undertaken to enforce that right cannot be said to be proceedings which are permitted by Section 89 (2) because the suit in which the decree sought to be executed was obtained was not a suit with regard to the rights which are vested in the plaintiff before the Act of 1948 came into force.

7. in that case Section 89 (2) has, because of the absence of the word 'instituted', no application in so far as an attempt has been made to enforce the right by execution proceedings.

8. in that case Section 29 would have application, and the executing Court would have no jurisdiction to grant possession.

9. Mr. Kamat says, however, that even so there is nothing for the Mamlatdar to decide, inasmuch as there is already a vested right and Section 89 (2) says that nothing in that Act affects that right. But this also will have to be determined by the Mamlatdar. In the second instance, there may be other defences which could be taken by the defendant. What is exactly the defence which the defendant had taken in the application for execution is not quite clear, because the record of the proceedings is not before me not having been called for By either party; but there is a reference in the judgment to the defendant's name having been entered as a protected tenant. Even if nothing in the Act of 1948 may affect the vested right, it may be that some provisions of the Act of 1939 may have application. I do not wish to express any opinion consequently one way or the other as to whether there is anything for the Mamlatdar to decide. In any case, it is obvious that if the plaintiff wishes to obtain possession, he must make an application to the Mamlatdar under Section 29.

10. The appeal will therefore be dismissed with costs.

11. Appeal dismissed.


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