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Rajesab Wallad Imamsab Bagwan Vs. Harishchandra Honnawar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number First Appeal No. 567 of 1953
Judge
Reported in(1954)56BOMLR638
AppellantRajesab Wallad Imamsab Bagwan
RespondentHarishchandra Honnawar
DispositionAppeal dismissed
Excerpt:
.....was determined, the high court in appeal from the civil judge, who had decreed the plaintiff's suit, passed a decree in favour of the plaintiff for possession in 1951. in the meanwhile the defendants were entered in the record of rights by the mamlatdar as protected tenants. the plaintiff filed a darkhast in 1951 for possession of the property in execution of the decree and the civil judge ordered issue of warrant for possession of the property. the defendants applied for cancellation of the warrant on the ground that the court was incompetent to execute the decree passed by the high court and that possession of the property could only be obtained in enforcement of the decree by applying to the mainlatdar under the provisions of the bombay tenancy and agricultural lands act, 1948..........as tenants was determined. the trial court passed a decree against the defendants. against the decree passed by the trial court, first appeal no. 244 of 1947 was preferred to this court. the appeal came up for hearing before this court in october 1949. this court granted relief against forfeiture to the defendants on certain terms which are not material for the decision of this appeal. a decree was passed on october 18, 1949, requiring the defendants to make certain payments as a condition precedent to the relief being granted to them from forfeiture. as the defendants did not carry out the conditions imposed upon them under the decree, the decree was modified on january 15, 1951, and the appeal was dismissed. in the meanwhile the defendants had been entered in the record of rights.....
Judgment:

Shah, J.

1. The plaintiff filed Special Suit No. 13 of 1946 in the Court of the Civil Judge, Senior Division, at Dharwar, for a decree for possession of certain property from the defendants alleging that the right of the defendants to continue in possession thereof as tenants was determined. The trial Court passed a decree against the defendants. Against the decree passed by the trial Court, First Appeal No. 244 of 1947 was preferred to this Court. The appeal came up for hearing before this Court in October 1949. This Court granted relief against forfeiture to the defendants on certain terms which are not material for the decision of this appeal. A decree was passed on October 18, 1949, requiring the defendants to make certain payments as a condition precedent to the relief being granted to them from forfeiture. As the defendants did not carry out the conditions imposed upon them under the decree, the decree was modified on January 15, 1951, and the appeal was dismissed. In the meanwhile the defendants had been entered in the Record of Rights by the Manilatdar as protected tenants of the land in dispute. An application was filed by the plaintiff for cancellation of that entry made by the Mamlatdar, but the application was rejected. The plaintiff thereafter filed darkhast No. 10 of 1951 for possession of the land. The learned Civil Judge, Senior Division, Dharwar, ordered that a warrant for possession of the land do issue. The defendants applied inter alia for cancellation of the warrant contending that the civil Court was incompetent to execute the decree passed by this Court in First Appeal No. 244 of 1947.

2. It was urged on behalf of the defendants that even after the civil Court passed a decree for possession, possession can only be obtained in enforcement thereof by applying to the Mamlatdar under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The learned Civil Judge rejected the contention raised by the defendants. The defendants have come to this Court in appeal against the order rejecting their contention.

3. Mr. Kalagate on behalf of the appellants contended in this appeal, that even though this Court had jurisdiction in First Appeal No. 244 of 1947 to pass a decree for possession, the Court of the Civil Judge, Senior Division, at Dharwar, which otherwise had jurisdiction under the provisions of the Civil Procedure Code to execute the decree passed by this Court in appeal, was incompetent to execute it, in view of the provisions of the Bombay Tenancy and Agricultural Lands Act of 1948. In support of that contention reliance was placed upon the provisions of Sections 29, 70 and 85 of that Act; and upon certain observations in a judgment of this Court reported in Dhondi Tukaram v. Dadoo Piraji (1952) 55 Bom. L.R. 663.

4. Section 70 of the Bombay Tenancy and Agricultural Lands Act of 1948 sets out the duties and functions which are required to be performed by the Mamlatdar for purposes of that Act. Section 85 of the Act excludes the jurisdiction of the civil Courts to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their power of control. There are several clauses in Section 70 which set out the duties and functions of the Mamlatdar; but it is not one of the functions or duties of the Mamlatdar to execute a decree for possession of land passed by a civil Court. Nor is it suggested that such a power is conferred by any other provision of the Act upon the Mamlatdar or the Tribunal constituted under the Act, or a Manager or the Collector or the Bombay Revenue Tribunal or upon the State Government in exercise of their power of control, Therefore, there is nothing in Section 85 read with Section 70 which excludes the jurisdiction of the civil Court to execute its own decrees properly passed for possession of agricultural lands.

5. Section 29 of the Bombay Tenancy and Agricultural Lands Act provides the procedure for taking possession of land. Sub-sections (2) and (4) of Section 29 which are relevant in considering this argument provide that a landlord shall not obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar; and that any person taking possession of any land or dwelling house except in accordance with the provisions of Sub-section (2) shall be liable to forfeiture of drops, if any, grown in the land in addition to payment of costs as may be directed by the Mamlatdar or by the Collector and also to the penalty prescribed in Section 81 of the Act. It is evident that the expression 'person' used in Sub-section (4) read withSub-section (2) must mean a 'landlord'. A decree-holder who has obtained a decree in his favour in a suit for possession of land in a civil Court is, however, not a 'landlord' within the meaning of Section 29 of the Act. It is true that at the time when he filed the suit the plaintiff was in the position qua the defendants of a landlord and he claimed possession of property from the defendants on the plea that the latter were at one time his tenants, and their right to occupy the land had come to an end. But after the civil Court passed a decree for possession, the relation of landlord and tenant came to an end, and the rights of the parties were merged in the decree of the Court. The decree-holder thereafter could not be regarded as 'landlord' within the meaning of Section 29(2). There is nothing in Section 29 of the Act of 1948 which required a decree-holder who has obtained a decree for possession in his favour from the civil Court to apply to the Mamlatdar to execute the decree. No other provision of the Bombay Tenancy and Agricultural Lands Act of 1948 is pointed out to me which excludes the jurisdiction of the civil Court to execute a decree properly passed by it.

6. Section 89 of the Bombay Tenancy and Agricultural Lands Act of 1948 by its first sub-section repeals the enactments mentioned in the Fourth Column of the Schedule to the Act; and the Fourth Column of the Schedule sets out the various. provisions of the Bombay Tenancy Act of 1939 repealed by the Act of 1948, Subsection (2) of Section 89 provides (in so far as it is material) :

But nothing in this Act or any repeal effected thereby-...

(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 proceedings shall be continued and disposed of, as if this Act was not passed.

7. It is evident that pre-existing rights, titles, interests, obligations and liabilities which had arisen, accrued or incurred before the commencement of the Act are saved from the operation of the Act of 1948. Liability to forfeit the tenancy and the obligation to deliver possession were incurred by the defendants prior to the date on which the Bombay Tenancy and Agricultural Lands Act of 1948 was brought into operation. Similarly a right had accrued in favour of the plaintiff to obtain possession on the footing that the defendants had ceased to have any interest in the land in dispute, and those rights and obligations not having been affected by/ anything contained in the Act of 1948, it was open to the plaintiff to enforce those rights by proceedings which had prior to the Act of 1948 been instituted in the civil Court. It is true that by Clause (ii) of Sub-section (2) of Section 89 pending legal proceedings or remedies in respect of rights, obligations and liabilities can be continued arid disposed of as if the Act has not been passed, and institution of fresh proceedings to enforce rights or obligations previously incurred is not saved from the operation of the Act. If for enforcement of a right, obligation or liability which arose or accrued before the Bombay Tenancy and Agricultural Lands Act of 1948 was brought into operation, a suit is instituted after that date, the suit will be governed by the provisions of the Act and is liable to be dismissed if the jurisdiction of the civil Court to try that suit is excluded. But a suit filed in the civil Court prior to the date on which the Bombay Tenancy and Agricultural Lands Act of 1948 came into operation can be continued under Clause (b) of Sub-section (2) of Section 89 as if the Act had not been passed. Now, a suit does not come to an end merely by the passing of a decree therein. It need hardly be said that an appeal is a continuation of a suit; similarly execution proceedings taken for enforcing rights declared by a decree in the suit are also a continuation of the suit. Therefore., for ascertaining whether an execution application lies in a civil Court for relief which can be granted under the Bombay Tenancy and Agricultural Lands Act of 1948, only by the Mamlatdar, regard must be had to the date on which the suit (in which the decree was passed) was instituted. If the civil Court had jurisdiction to pass the decree, notwithstanding the provisions of the Act, the decree may be executed by the civil Court, and not by the Mamlatdar.

8. In my view the expression 'proceeding' used in Section 89(2)(b)(ii) must in its context mean a suit or a proceeding in the nature of a suit, and an appeal or appeals which lie under the provisions relating to appeals, and execution proceedings for enforcement of rights declared by the decree or order passed in the suit or appeal must be regarded merely as continuation of the suit. The suit filed by the plaintiff having been instituted in the present case in the year 1946 to enforce a right that was acquired prior to the date on which the Bombay Tenancy and Agricultural Lands Act of 1948, was applied, would, in my judgment, be deemed to be continued by the darkhast filed for execution of the decree obtained therein, and the maintainability of the darkhast is not affected by the application of the Act.

9. It was urged by Mr. Kalagate that certain observations made in Dhondi Tukaram v. Dadoo Piraji (1952) 55 Bom. L.R 663 indicated that the Court had expressed a view contrary to the one that I am taking. That was a case in which a suit was filed in the year 1946 by the plaintiff for possession of certain lands claiming that the tenancy of the defendants had determined by efflux of time, and that the defendants had failed and neglected to vacate and deliver possession, even though they were called upon so to do. It was held that the suit having been instituted prior to the date on which the Bombay Tenancy and Agricultural Lands Act of 1948 came to be enacted, the suit could be tried and the appeal from the decree passed in the suit could also be prosecuted as if the Bombay Tenancy and Agricultural Lands Act of 1948 had not been passed. It was observed at p. 669 of the report:.Section 89(2)(b)(ii) unambiguously lays down that any legal proceeding in respect of rights mentioned in Section 89(2)(b)(i) shall be continued and disposed of as if this Act was not passed. It would be noticed that what are saved are only pending proceedings. In other words, if a proceeding is instituted subsequent to the commencement of the Act, it would be governed by this Act notwithstanding the fact that the right itself had accrued to the party prior to the Act.... Section 89 of the present Act, however, does not seem to protect legal proceedings in respect of vested rights which may be instituted subsequent to the commencement of this Act, unlike Section 7 of the General Clauses Act. It does not refer to the institution of legal proceedings, but mentions merely their continuance and disposal, which clearly denotes pending proceedings. That is why we hold that it is only pending proceedings in respect of vested rights that are saved from the operation of this Act; so that even in respect of vested rights which are saved, if a suit to enforce them is filed subsequent to the commencement of the Act, the provisions of this Act will apply, and if any question mentioned in Section 70 arises between the parties, it will have to be decided by the Mamlatdar.

10. There is nothing in those observations on which reliance was placed by Mr. Kala-gate which is inconsistent with the view that I am taking. The last sentence from the excerpt which I have quoted clearly indicates that the Court took the view that what was prohibited was the institution of a fresh suit to enforce the rights which had accrued prior to the date on which the Act of 1948 was applied. In the penultimate paragraph of the judgment it was observed that the Court was not called upon to consider whether it would be open to the decree-holder to secure possession of the land by executing a decree which may be passed in favour of the plaintiff by the civil Court. But that observation does not even indirectly suggest that the Court was prepared to take the view that the civil Court has no jurisdiction to enforce compliance with a decree passed in exercise of its jurisdiction.

11. In my view the civil Court is competent to execute the decree passed by it for possession of agricultural lands which were originally in the possession of the defendants as tenants of the plaintiff-the tenancy having been terminated prior to the date on which the Bombay Tenancy and Agricultural Lands Act off 1948 was enacted and the suit also having been instituted prior to that date. In that view of the case, this appeal must fail.

12. The appeal, therefore, fails and is dismissed with costs.

13. Civil Application No. 2213 of 1958 is also dismissed with costs.


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