1. The plaintiffs filed suit No. 111 of 1946-47 in the Court of the Civil Judge, J.D.at Kathor in the former Baroda State against the defendants for a decree forpossession of certain agricultural land. A consent decree was passed in thesuit on 20-7-1948. The decree provided that the defendant Maganlal Sunderji dodeliver possession of the suit land to the plaintiffs on 8-4-1951.
It furtherprovided that if the defendant Maganlal Sunderji failed to deliver possession tothe plaintiffs, the plaintiffs may take possession through Court by filing anapplication for execution. It was then provided in the decree that defendantMaganlal Sunderji shall take the produce and shall give certain specifiedamounts to the plaintiffs.
It was alsoprovided that if the defendant Ma ganlal Sunderji failed to make the paymentwith in the specified time, the plaintiffs were entitled to recover the samefrom the person and every kind of property of the defendant Maganlal Sunderjee.
2. The Stateof Baroda merged with the Indian Union on 1-8-1949. The Bombay Tenancy andAgricultural Lands Act of 1948 was made applicable to the area in which theland in dispute is situated on. 30-7-1949. The judgment-debtors having failedto deliver possession of the property on 8-4-1951 the plaintiffs filed darkhastNo. 20 of 1951 in the Court of the Civil Judge, Junior Division, at Kathor forexecuting the decree.
The darkhastwas resisted by the first defendant Maganlal Sunderjee. The first defendantcontended that the darkhast was not maintainable in view of the provisions ofthe Bombay Agricultural Debtors Relief Act and the Bombay Tenancy andAgricultural Lands Act. 1948. The learned Trial Judge held that the plaintiffshad not applied for any money due and, therefore, the provisions of theB.A.D.R. Act did not come in the way of execution.
He furtherheld that the B.T. and A.L. Act of 1948 did not prevent execution of a decreewhich was passed before the commencement of B.T. and A.L Act of 1948 and in supportof that view he relied upon Section 89(2)(b)(i) of that Act. The learned trialJudge accordingly passed an order directing 'the execution proceedings toproceed according to law'.
3. An appealwas preferred to the District Court at Surat. In appeal the learned AssistantJudge who heard the appeal reversed the order passed by the trial Court anddismissed the darkhast with costs. Against the order of the District Courtdismissing the darkhast the plaintiffs have come to this Court in secondappeal.
4. This Courthas now taken the view that the provisions of the Bombay Tenancy andAgricultural Lands Act of 1948 are not retrospective; and if before the date onwhich that Act was made applicable a suit had been filed in ejectment fortermination of the tenancy, by reason of the provisions of Section 89 of thatAct the suit may continue in the Civil Court; and if a decree has been obtainedin a suit that decree may be executed according to its tenor notwithstandingthe provisions of the B.T. and A.L. Act of 1948.
In RajesabImamsab v. Harischandra 56 Bom LB 638 (A), I had occasion to consider whethera decree passed in a suit filed in 1946 for possession of certain propertycould be executed after the B.T. and A.L. Act of 1946 was made applicable tothe area in which the land was situate; and it was held by me in that case thatthe Civil Court was competent to execute a decree for possession ofagricultural lands which were originally in the possession of the defendant asa tenant of the plaintiff, the tenancy having been determined prior to the dateon which the B.T. and A.L. Act of 1948 was enacted, and the suit to enforce theright to obtain possession also having been instituted prior to that date.
That view hasbeen upheld by a Division Bench of this Court in -- Prithviraj Chunilal v. HariGanesh' 56 Bom LR 1076 (B). It was held in that case that when the decreeunder execution was passed in the suit which was filed before the BombayTenancy Act of 1939. was made applicable to the area where the land was situated,the Civil Court had jurisdiction, to execute the decree, in view of the abovetwo decision's, the objections to the execution of the decree which appealed tothe learned Appellate Judge cannot be sustained.
5. Mr.Gokhale who appears on behalf of the first judgment-debtor has, however,contended that in certain proceedings which were taken by the plaintiffs afterthe Bombay Tenancy Act was made applicable to the area in which the land indispute is situate, the plaintiffs themselves regarded the defendants as theirtenants and claimed to recover rent on that footing.
It isundoubtedly true that the plaintiffs prayed for possession of the land byproceeding in the Mamlatdar's Court under Section 29, Sub-section (2) of theBombay Tenancy and Agricultural Lands Act of 1948 and the first defendantsapplied for fixation of the standard rent tinder Section 12 of that Act.
In myjudgment the mere Institution of proceedings in a Court constituted under theB.T. and A.L. Act of 1948 for possession does not affect the right of theplaintiffs to proceed in a proper Court to execute the decree; and even if theplaintiffs resisted the application filed by the first defendant for fixationof the standard rent, on the merits the plaintiffs' action in resisting the applicationfor fixation of standard rent cannot raise an estoppel against the plaintiffsin the Civil Court in executing the decree.
6. Mr.Gokhale then contended that Section 4 of the B.T. and A.L. Act of 1948 raises apresumption that every person who is lawfully cultivating land belonging toanother person and who does not belong to any of the three specified classes ofperson mentioned in that section, is to be deemed to be r tenant of the land,and that the defendants were entitled to continue in possession as a protectedtenant, unless the tenancy was terminated in the manner provided by that Act.
In my viewthere is no substance in that contention also. Section 89, Sub-section (2)Clause (b) item (i) of the B.T. find A.L. Act of 1948, saves from the operationof that Act, except as expressly provided in that Act, any right, title orinterest obligation, or liability already acquired, accrued or incurred beforethe commencement of the Act.
The liabilityof the defendants to deliver pos-session and the right of the plaintiffs toenforce execution of the decree evidently arose before the date on which theAct came into operation, and the liability incurred by the defendants and theright which accrued in favour of the defendants and the right which accrued infavour of the plaintiffs were not affected by anything contained in the Act.The presumption arising under Section 4 cannot, therefore, avail thedefendants.
In that viewof the case the appeal will be allowed, the order passed by the learnedAssistant Judge set aside and the order passed by the learned trial Judgerestored with costs in this Court and in the District Court.