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Smt. Bakulabai Vs. Shidaraya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1406 of 1972
Judge
Reported inAIR1973Kant134; AIR1973Mys134; (1973)1MysLJ33
ActsMysore Land Reforms Act, 1962 - Sections 14(1), 15(5) and 116
AppellantSmt. Bakulabai
RespondentShidaraya
Appellant AdvocateK.S. Savanur, Adv.
Respondent AdvocateK.A. Swamy, Adv.
DispositionPetition dismissed
Excerpt:
.....these provisions clearly establish that under sub-section (1) of section 14 of the act, a certificate will be issued to the landlord determining the right of the landlord to resume possession......on the application being filed, the court is required to direct an enquiry and 'determine the land or lands' which the landlord will be entitled to resume, and shall issue a certificate to the landlord to the effect that the land or lands specified in such certificate have been reserved for resumption and thereupon the right to resume possession shall be exercisable only in respect of the lands specified in such certificate and shall not extend to any other land. sub-section (5) of section 14 of the act provides that where a certificate is issued in respect of any land under sub-section (1), in the case of tenancies existing on the appointed day, the landlord shall make an application to the court for possession of such lands within 12 months from the date of issue of the.....
Judgment:
ORDER

H.B. Datar, J.

1. The petitioner filed an application for resumption of the land R. S. (block) No. 26 situated at Zalki village, and an order of resumption was passed by the learned trial Judge in her favour. Accordingly a certificate was issued as provided under Section 14 (1) of the Mysore Land Reforms Act, on the 10th of December, 1970. Thereafter an application was filed on the 17th of December, 1970 under Section 14 (5) of the Act, for delivery of possession; on that application the learned Munsif, passed the following order:--

'23-1-1971: Admit R. L. C. (Ex. c) 6/71. Date of certificate is 10-12-1970. Application is filed on 17-12-1970, i.e., within 12 months, copy of appellate order produced dismissing the appeal under Section 14 (5) Mys. L. R. Act, I pass order directing that papers be sent to D. C. Bijapur for execution as per law and possession to be delivered after 31-3-1971. This case is closed.'

The correctness of this decision was challenged by preferring an appeal to the Court of the District Judge, Bijapur, and the learned appellate Judge has allowed the appeal, set aside the order of the trial Court and directed the learned Munsiff to dispose of the application in accordance with law, after hearing the present respondent. It is this order that is now challenged in the present revision petition.

2. In order to appreciate the respective contentions raised by the parties in this revision petition, it would be necessary to refer briefly to certain provisions of the Mysore Land Reforms Act. Section 14 (1) of the Act entitles the landlord to make an application for resumption of land from the tenants. On the application being filed, the court is required to direct an enquiry and 'determine the land or lands' which the landlord will be entitled to resume, and shall issue a certificate to the landlord to the effect that the land or lands specified in such certificate have been reserved for resumption and thereupon the right to resume possession shall be exercisable only in respect of the lands specified in such certificate and shall not extend to any other land. Sub-section (5) of Section 14 of the Act provides that where a certificate is issued in respect of any land under Sub-section (1), in the case of tenancies existing on the appointed day, the landlord shall make an application to the Court for possession of such lands within 12 months from the date of issue of the certificate, but the tenants shall not be dispossessed, before the 31st March of the calendar year succeeding the calendar year in which the application for possession is made. Section 116 of the Act states that every order of the Court shall be executed as if it were a decree of a Civil Court; provided that an order for possession or restoring the possession or use of any land shall be executed by the Deputy Commissioner in the same manner as an order made by a Revenue Officer under the Mysore Land Reforms Act, 1962.

3. These provisions clearly establish that under Sub-section (1) of Section 14 of the Act, a certificate will be issued to the landlord determining the right of the landlord to resume possession. When such certificate is issued determining the claim of the landlord to resume possession, he has to make an application for delivery of possession of the property. Though Sub-section (5) of Section 14 of the Act does not in words Say that an order of possession has to follow, that is what is implicit in Sub-section (5) of Section 14 of the Act. Therefore, when there is a certificate for resumption of the land and when an application is filed for possession under Section 14 (5) of the Act, in accordance with the provisions of that section, the Court has to pass an order for delivery of possession. This is the meaning of Section 14 (5) of the Act.

In Section 116 of the Act, it is stated that every order of the Court shall be executed as if it were a decree of a Civil Court, and that an order for possession or restoring the possession or use of any land shall be executed by the Deputy Commissioner. Therefore, there must be an executable order passed by the Court, which can be executed and possession obtained from the tenant. If it is an order for delivery of possession, then the Deputy Commissioner has to execute the order in the same manner as an order made by a Revenue Offices under the Mysore Land Reforms Act, 1962.

Therefore, the condition precedent for the exercise of jurisdiction by the Deputy Commissionepossesioner possession is the existence of the order for possession, and therefore, the Court is required after the issue of a certificate to pass an order for delivery of possession under Sub-section (5) of Section 14 of the Act. As already stated, when a landlord's claim for resumption of the land is certified by Court as required under Section 14 (1) of the Act, an order for possession has to follow, under Section 14 (5) of the Act. There were certain restrictions imposed as regards the time when delivery of possession is to be made. Tt is therefore, clear that a Judicial order is contemplated under Section 14 (5) of the Act, directing delivery of possession, and so it is necessary for the Court to hear the tenant in the matter. The learned appellate Judge was therefore, in my view, fully justified in holding that in the present case it was necessary for the trial Court to have issued a notice to the tenant, heard him and then pass an order for delivery of possession and transmit the papers to the Deputy Commissioner for delivery of possession as provided under the proviso to Section 116 of the Act. In my view, the order passed by the trial Court was an order both for delivery of possession as also transmitting the papers to the Deputy Commissioner. So the appellate Court was justified in setting aside the order of the learned Munsiff and remitting back the proceedings to the trial Court for a determination as directed in the order.

4. It is stated that subsequent to the passing of the order by the Civil Court, the Deputy Commissioner took steps and delivered possession of the property on the 23rd of April, 1971. It is therefore stated that until the final adjudication of the matter, the possession of the petitioner may be permitted to be continued. In my view, if the petitioner is in possession of the property, it would be proper to allow the petitioner to continue in possession of the property until the final orders are passed by the Court. Subject to the observations made above as regards the protecting possession of the petitioner, this revision petition is dismissed.

5. No costs.


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