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Rango Laxman Pingle Vs. Kumudini Chandrakant Pethkar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal Nos. 53 and 67 of 1976
Judge
Reported inAIR1981Bom220; 1980MhLJ605
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 32G, 32M, 85, 89 and 89(2); Bombay Land Revenue Code, 1879 - Sections 59; Khoti Settlement Act, 1880 - Sections 6 and 9; Registration Act - Sections 17; Code of Civil Procedure (CPC), 1908 - Order 31, Rule 35
AppellantRango Laxman Pingle
RespondentKumudini Chandrakant Pethkar and ors.
Appellant AdvocateK.J. Abhyankar, Adv. in L.P.A. No. 53 of 1976 and;D.M. Nargolkar, Adv. for;M.S. Nargolkar, Adv.
Respondent AdvocateK.J. Abhyankar, Adv. in L.P.A. No. 67 of 1976 and;C.R. Dalvi, Adv.
Excerpt:
.....if he satisfied them that his dues were not fully recovered and that they still owed some amount to him, he was at liberty to retain that property for a further period of 8 years. in any case by the end of may 1973 irrespective of the question whether the plaintiff's debt had been satisfied or not, the property was to be regarded as free from debt and the plaintiff mehendale had to hand over possession of the suit property and the defendants were directed to take possession of the suit property at the end of may 1973 in their own right as owners-after may 1973 the plaintiff mehendale had no right of any kind over the property in question. under the terms of the decree there is an express direction that at the end of may 1973, irrespective of whether the money claim of the plaintiff..........to be regarded as free from debt and the plaintiff mehendale had to hand over possession of the suit property and the defendants were directed to take possession of the suit property at the end of may 1973 in their own right as owners-after may 1973 the plaintiff mehendale had no right of any kind over the property in question. pursuant to this decree, the plaintiff in that suit obtained possession of the suit property under the decree. in 1956 and 1966 pingles filed darkhasts asking for possession of the suit property. but the darkhasts were rejected on the ground that pingale were not entitled to recover possession of the suit property from mehendale under the decree before 1973. proceedings in respect of these previous darkhasts are not on the record before us. on 4-6-1973 the.....
Judgment:

Manohar, J.

1. The appellants in the two Letters Patent Appeals are the son and grandsons of one Laxman Pingle. On or about 2nd March, 1922 a Special Civil Suit No. 341 of 1922 was filed by Khanderao Mehendale against the sons of Laxman Pingle for recovery of a sum of about Rs. 18,150/- together with interest thereon on the basis of a pro-note. The disputes between the parties were referred to arbitration. Ultimately an award was given in this arbitration pursuant to which a decree in terms of the award was passed on 21-3-1922. Under the terms of the decree, the defendants, that is to say, the sons of Laxman Pingle were ordered to pay a sum of Rs. 20,000/- to the plaintiff Mehendale and in satisfaction of the amount, Pingles were directed to deliver possession of an immovable property viz. Survey No. 15 from Donaje village in Haveli Taluka, Poona District to the plaintiff decree-holder. It was further provided that the plaintiff decree-holder would enjoy the property till the end of 1964 as his own property and he would give accounts of the mesne profits to the defendants. If he satisfied them that his dues were not fully recovered and that they still owed some amount to him, he was at liberty to retain that property for a further period of 8 years. In any case by the end of May 1973 irrespective of the question whether the plaintiff's debt had been satisfied or not, the property was to be regarded as free from debt and the plaintiff Mehendale had to hand over possession of the suit property and the defendants were directed to take possession of the suit property at the end of May 1973 in their own right as owners-After May 1973 the plaintiff Mehendale had no right of any kind over the property in question. Pursuant to this decree, the plaintiff in that suit obtained possession of the suit property under the decree. In 1956 and 1966 Pingles filed Darkhasts asking for possession of the suit property. But the Darkhasts were rejected on the ground that Pingale were not entitled to recover possession of the suit property from Mehendale under the decree before 1973. Proceedings in respect of these previous Darkhasts are not on the record before us. On 4-6-1973 the appellants took out the present Darkhast for possession of the said property in execution of the decree which was passed on 21-3-1922.

2. This application for execution was contested originally by one Padmavati, Khanderao Mehendale who was the original plaintiff had died leaving a son Balwant who had also died on 20-2-1958, Padmavati was the widow of Balwant. Padmavati resisted the application for execution on the ground that she had been the tenant of the suit property from her husband Balwant and that after the coming into operation of the Bombay Tenancy and Agricultural Lands Act, 1948 proceedings were taken under Section 32G of the Act and she was granted a certificate under Section 32M of the Act recognising her as a deemed purchaser of the suit property. She, therefore, claimed that under the provisions of the Bombay Tenancy and Agricultural Lands Act she was a deemed purchaser by virtue of the certificate granted to her under Section 32M and the decree for possession could not be executed against her. During the pendency of these execution proceedings Padmavati has also died and the proceedings are now being defended by Kumudini (Respondent No. 1) who is the daughter of Padmavati.

3. The question that arises for our consideration is whether the appellants are entitled to execute the decree of 21-3-1922 under which they were given a right to obtain possession of the said property at the end of May 1973 in view of the fact that Padmavati was recognised as a deemed purchaser under Section 32M of the Bombay Tenancy and Agricultural Lands Act, 1948.

4. Before the effect of a certificate granted under Section 32M can be considered, it is necessary to decide whether the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 can be taken into account in considering the present application for execution. The suit in which the decree was obtained was instituted in the year 1922 long prior to the coming into operation of the Bombay Tenancy and Agricultural Lands Act. This suit was in respect of a money claim. The decree in terms of the award which is passed in this suit is also passed on 21st March, 1922 long prior to the coming into operation of the Bombay Tenancy and Agricultural Lands Act. Under this decree certain rights are created in favour of the parties. As far as the appellants are concerned, under the decree they have a right to obtain possession of the suit property at the end of May 1973. Now can this decretal right which the appellants have, be enforced by them by taking out execution proceedings after the coming into operation of the Bombay Tenancy and Agricultural Lands Act, 1948? In considering this question it is necessary to consider the provisions of Section 89. Sub-section (2) of the Bombay Tenancy and Agricultural Lands Act. Section 89, Sub-section (2), of the Act provides as follows:

'89. (1) xx xx xx

(2) But nothing in this Act or any repeal effected thereby -

(a) shall affect the amendments made in Section 59 of the Bombay Land Revenue Code, 1879, or Sections 6 and 9 of the Khoti Settlement Act, 1880.

(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.

XX XX XX XX'

Therefore, under Sub-section (2) of Section 89 if any right has accrued to party before the commencement of the Bombay Tenancy and Agricultural Lands Act, then, any legal proceedings which may have been instituted for the enforcement of that right can be continued and disposed of as if the Bombay Tenancy and Agricultural Lands Act had not been passed. There are a number of decisions of our High Court in which provisions of Section 89, Sub-section (2), have been construed by this Court.

5. In the case of Rajesab Wallad Imamsab Bagwan v. Harishchandra Honnawar reported in : (1954)56BOMLR638 Shah, J. (as he then was) has held that all pre-existing rights, titles, interests, obligations and liabilities which had arisen, accrued or had been incurred before the commencement of the Act are saved from the operation of the Act of 1948. In this connection, Shah, J. has observed as follows at p. 642.

'.....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.'

Shah, J. has relied upon the observations of a Division Bench of this Court in Dhondi Tukaram v. Dadoo Piraji reported in 55 Bom LR 663: AIR 1954 Bom 100 in support of the conclusion to which he has come, namely that if a suit had been filed for enforcement of any right prior to the coming into operation of the Tenancy Act, all subsequent legal proceedings in that suit including appeals and execution proceedings are saved! from the provisions of the Tenancy Act. This view has been confirmed by another Division Bench of this Court in Dhanjibhai Khivashibhai Gujrathi v. Daulatbee Mare Najakali reported in : (1956)58BOMLR584 . The ratio laid down in all the above decisions is sought to be distinguished by Mr. Dalvi, who appears on behalf of respondent No. 1, on the basis that in all the above decisions the suit which was originally instituted was a suit to enforce a vested right which had accrued in favour of the plaintiff and in respect of which a decree was passed. In other words, he contends that the decree which is passed in the suit must confirm the vested right which is claimed in the suit. Only in such a case the subsequent proceedings for execution can be considered as a continuation of the suit, if the right in question is created for the first time by the decree, then a proceeding for the execution of such a decree is not a continuation of the suit at all. It is a separate legal proceeding instituted for the first time when the execution application is made. If such an application for execution is made after the coming into operation of the Tenancy Act, it is not saved by the provisions of Section 89 (2) of the Tenancy Act. Hence in such a case, the right created by the decree can only be enforced under the provisions, if any, of the Tenancy Act. In support of his contention Mr. Dalvi relies upon a decision of a single Judge of this Court in Raghumath Hari Deshpande v. Kashinath Ramchandra Deshpande reported in : AIR1958Bom223 . In that case the plaintiff had filed a suit against the defendant for possession of land alleging that the defendant had no interest in the land at all and that he was in wrongful possession. In that suit a consent decree was passed on 7-11-1946, under which the defendant, inter alia, admitted the title of the plaintiff as the owner of the suit property and the defendant, inter alia, was to deliver to the plaintiff possession of the suit property on 18th January 1953. The plaintiff made an application for execution of this decree after 18-1-1953. The matter ultimately came up before the High Court and the learned single Judge of this Court came to the conclusion that the plaintiff was not entitled to obtain possession of the land from the defendant in execution of that decree. The learned single Judge, in that case held that by virtue of the decree which was passed prior to the coming into operation of the Tenancy Act of 1948, the plaintiff had acquired a vested right to obtain possession of the suit property on 18-1-1953, without having to file another suit. He, however, came to the conclusion that since this right was not claimed in the suit itself but it was created by the decree which was passed in that suit, an application to execute the decree could not be considered as a continuation of the suit. He treated the application for execution as institution of a fresh legal proceeding after the coming into operation of the Tenancy Act and therefore held that such an application was not covered by the provisions of Section 89 (2) of the Act. He, therefore, observed that for enforcement of such a vested right, the plaintiff was required to take recourse to the provisions of the Tenancy Act and a Civil Court would not have jurisdiction to entertain the application for execution.

6. The above judgment has not taken into account the previous ruling of this High Court including the Division Bench ruling. All these judgments have laid down that execution proceedings are a continuation of the suit which was originally filed. If the suit in which the decretal rights have been created was filed prior to the coming into operation of the Tenancy Act, then the execution proceedings which are taken out in that suit subsequent to the coming into operation of the Tenancy Act are not affected in .any manner by the provisions of the Tenancy Act. The distinction sought to be made by the learned single Judge between a suit in which the plaintiff has initially claimed the right which is conferred on him by the decree and a suit in which such a right is not initially claimed by the plaintiff is also not warranted. In our view, it is not open for a Court to say that only in a suit where the right initially claimed by the plaintiff is confirmed by the decree, will the Court treat the execution application of that decree as a continuation of the original suit proceedings. In all cases irrespective of the cause of action pleaded in the plaint, an execution proceeding is a continuation of the original suit which was filed and in which a decree was obtained which is sought to be executed by the execution proceeding. The language of Section 89, Sub-section (2), of the Tenancy Act also does not support the distinction which is sought to be made by the learned single Judge. Under Section 89, Sub-section (2) (ii), any legal proceeding in respect of a right which is accrued prior to the commencement of this Act can be continued and; disposed of as if the Act had not been passed. If in a suit a decree is passed prior to the coming into operation of the Tenancy Act of 1948, under which rights are created in favour of one of the parties to the litigation, such rights are rights which have accrued to the party in question prior to the coming into operation of the Tenancy Act, 1948. The application for execution of such a decree must be considered as a continuation of the original suit which was filed and in which the decree in question was obtained, provided that the decree had been obtained before the coming into operation of the Tenancy Act. Our High Court in the earlier decisions reported in 55 Bom LR 663 : AIR 1954 Bom 100; : (1954)56BOMLR638 and : (1956)58BOMLR584 , has held that execution proceedings are a continuation of the suit. This proposition is not qualified in any manner. None of these judgments lend support to the distinction sought to be made by the learned single Judge between decrees which confirm the right claimed and decrees which confer the right claimed. 'None of these judgments appear to have been cited before the learned single Judge who decided the case in : AIR1958Bom223 . Under the circumstances, the views expressed by the learned single Judge do not appear to be correct.

7. Mr. Abhyankar, who appears for the appellants, also referred to two judgments of the Supreme Court in support of the proposition that any transaction which is entered into by the defendant during the pendency of a litigation cannot affect the claim of the plaintiff. He had therefore challenged the creation of tenancy in favour of Padmavati by Balwant. The two judgments relied upon by him are Rentala Lachaiah v. Chimmapudi Subrahmanyam, reported in : [1967]3SCR712 and Husainbhai Nabibux Kunjada v. Modhia Chhotalal Mansuklal reported in : AIR1973SC2169 . In our view, it is not necessary to consider whether the tenancy rights created by Balwant in favour of Padmavati were valid or not and 'whether under Section 32M a certificate was correctly issued in favour of Padmavati. These are matters which a Civil Court is barred from considering under Section 85 of the Tenancy Act. It is not necessary to go into this aspect of the matter in view of our finding that under Section 89 (2) (b) of the Tenancy Act in considering the application for execution the other provisions of the Tenancy Act can be ignored by us.

8. In the present case the appellants claim their right to obtain possession of the suit property under the decree of 21st March, 1922, which was passed long prior to the coming into operation of the Tenancy Act of 1948. This right has, therefore, accrued to the appellants under the decree and they are entitled to execute the decree by taking out the present darkhast proceeding.

9. According to the 1st respondent who is the daughter of Padmavati, she is entitled to resist the application for execution because her mother has been recognised as a deemed purchaser under the provisions of the Tenancy Act and she has been issued a certificate to that effect under Section 32M of the Act. According to her, this question has been conclusively decided under the provisions of the Tenancy Act and therefore under . Section 85 of the Act no Civil Court can have jurisdiction to deal with the question whether her mother was or was hot a deemed purchaser. In our view, this contention has no relevance in view of the provisions of Section 89 of the Tenancy Act under which for the purpose of executing a decree which has been obtained prior to the coming into operation of the Tenancy Act, a Civil Court is entitled to ignore the other provisions of the Tenancy Act. As a result, in granting the appellants' application for execution, we are not dealing with any question which arises under the provisions of the Bombay Tenancy and Agricultural Lands Act and which is required to be decided by the Mamlatdar under the Act.

10. It has also been urged by Mr. Dalvi who appears for the 1st respondent that the decree of 21-3-1922 is not an executable decree. According to him, the decree merely declares the rights of the parties. Such a declaratory decree cannot be executed. We are unable to accept this contention of Mr. Dalvi. The original decree is in Marathi. Under the terms of the decree there is an express direction that at the end of May 1973, irrespective of whether the money claim of the plaintiff has been satisfied or not, the present property will be considered as free from the claim of the plaintiff and a further direction is given that defendants Nos. 1 and 2 do take possession of the suit property at the end of May 1973, In our view, there is an express direction given in the decree for the appellants' taking possession of the suit property at the end of May 1973. The decree, therefore, cannot be considered as a purely declaratory decree and the plaintiffs are entitled to execute the same. Although originally the 1st respondent had claimed that the decree was not executable because it was not registered, Mr. Dalvi has not pressed that contention in the present appeals in view of the fact that the decree was passed in the year 1922 while the amendment to Section 17 of the Registration Act under which such a decree were required to be registered was effected only in the year 1929. Hence the decree which was passed in 1922 does not require registration.

11. As a result, the Letters Patent Appeals are allowed. The judgment of the learned single Judge D/- 17-2-1975, in First Appeal No. 368 of 1974 is set aside and the order issued under Order 31 Rule 35 of the Civil P. C. by the Civil Judge, Sr. Divn., Poona on 15-6-1974, is confirmed.

12. In L. P. Appeal No. 53/76 the 1st respondent to pay to the appellants the costs of the appeal.

13. In L. R. Appeal No. 67/76 respondent No. 4 to pay to the appellants the costs of the appeal.

14. Appeals allowed.


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