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Chhana Kika and anr. Vs. Kala Chhima - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR197
AppellantChhana Kika and anr.
RespondentKala Chhima
Cases ReferredSiddurama Shagale v. Basawa Ramayya Swami. In
Excerpt:
.....or by some other person at his instigation the court has to direct that the applicant be put into possession of the property. under rule 99 if the court is satisfied on the other hand that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor the court has to make an order dismissing the application. on the contrary the fact that under section 38(3) and section 46 of the act provisions of the civil procedure code are made applicable for the execution of the award clearly shows that rights of parties claiming interest in the land on their own account and not derived from the judgment-debtor are to be respected and..........b.a.d.r. act. since the ordinary law has been modified by the tenancy act giving protection to the tenant possession from such a tenant has to be obtained having due regard to the provisions of the tenancy act.in our view there is no conflict between the decision of mr. justice gajendragadkar and the decision of the learned chief justice. one case dealt with a case where the parties were the judgment-creditor and the judgment-debtor and obviously in such a case it is clear that the policy of the b.a.d. r act shows that it must prevail over the tenancy act even if the judgment-debtor claims protection under the tenancy act. the other case dealt with a different position where a third party claiming protection in his own right was not bound by the award. such a party would not be privy to.....
Judgment:

J.M. Shelat J.

1. This revision application raises a short question of interpretation of Section 32(2)(v) of the Bombay Agricultural Debtors Relief Act 1947.

The property in question is survey No. 153/1 admeasuring about five bighas and situate in the village Chandravasan Supa District Surat. The village Chandravasan Supa was at first in Jalalpur Taluka Surat District but after the merger of Baroda when the Baroda territory in Navsari was merged into the State of Bombay there was re-distribution of Taluka boundaries and the village Chandravasan Supa was transferred to the Navsari Taluka in Surat District. It is not in dispute and this fact has been expressly admitted before us by Mr. Vidhyarthi that the village Chandravasan Supa did not at any time form part of the Baroda territory and was all along part of British India and thereafter the Indian Dominion and now the Union of India. On July 22 1922 the father of the opponent executed a deed of sale in respect of the property in question in favour of Messrs. Laldas Fakirdas. In 1950 the opponent filed an application for adjustment of his debts under the Bombay Agricultural Debtors relief Act 1947 in the Court of the learned Civil Judge Junior Division Navsari alleging that the transaction entered into by his father with the said firm of Messrs. Laldas Fakirdas was in the nature of a mortgage and was not a sale. On April 15 1954 a compromise was arrived at between the parties to the aforesaid application under which it was agreed that the opponent should pay Rs. 2 500 to the said firm. It was also agreed that the said transaction was in the nature of a mortgage and that if the sum of Rs. 2 500 was paid by the opponent the mortgage was to be deemed to have been redeemed. It was further agreed that if the opponent paid Rs. 1000/the said firm should hand over possession of this land to the opponent. The said land however was not in actual possession of the firm but in possession of the petitioners who claimed to be the tenants and as they declined to hand over possession of the land the opponent took out a Darkhast being Darkhast No. 30 of 1958 on March 17 1958 claiming that he had paid the sum of Rs. 1000/as provided by the compromise decree and had therefore become entitled to possession of the land in question. The petitioners obstructed the delivery of possession of the land in question claiming that they were protected tenants and that the Court had no jurisdiction to direct them to hand over possession except under the provisions of the Bombay Tenancy and Agricultural Lands Act 1948. The learned Judge relying upon the Pull Bench decision of the High Court at Bombay in Jasvantrai Tricumlal Vyas v. Bai Jivi 59 B.L.R. 168 held that the petitioners were the tenants of the mortgagees-in-possession since 1933 that therefore the Tenancy Act of 1939 applied to them and to the land in question that the petitioners were protected tenants that under Section 4 of the Tenancy Act of 1948 they were persons deemed to be tenants and therefore they could not be evicted under the Darkhast proceedings taken out by the opponent. The learned trial Judge dismissed for these reasons the Darkhast proceedings against the petitioners. The opponent thereupon filed an appeal before the learned District Judge Surat who set aside the order of dismissal of the Darkhast passed by the trial Court and allowing the appeal remanded the matter directing the trial Court to proceed with the Darkhast. The learned District Judge thought that the decision in Kanji Kurji v. Kala Gopal 59 B.L.R. 846 was applicable because the petitioners being the tenants of the mortgagee-in-possession were excluded from being protected tenants by reason of Section 4(c) of the Tenancy Act of 1948. He arrived at this result because of the fallacy that he made in considering the village Chandravasan Supa as formerly belonging to the Baroda territory and having merged at the time when the territory of the former Baroda State merged. On this fallacious basis he held that the Tenancy Act of 1939 was not applicable at any time to land situate in the village Chandravasan Supa and that the first time that the Tenancy Act was made applicable to this village was when the Tenancy Act of 1948 was applied. As pointed out earlier and it is not a fact in dispute between the parties that Chandravasan Supa was never part of the former State of Baroda and that since the tenancy commenced from the year 1933 it was governed by the Tenancy Act of 1939. That being the admitted position it would be the decision in Jasvantrai Tricumlal Vyas v. Bai Jivi 59 B.L.R. 168 that would be applicable to the facts of this case and that being so the petitioners were at all material times protected tenants and were entitled to the protection of the Tenancy Act. This position is not disputed by Mr. Vidhyarthi. Prima facie therefore it would appear that the petitioners could not be evicted by the Darkhast proceedings taken out by the opponent.

Mr. Vidhyarthi however contended that even though the petitioners were protected tenants and entitled to the benefit of the protection of the Tenancy Act the award passed by the Court would prevail even as against them as Section 32(2)(v) of the Bombay Agricultural Debtors Relief Act 1947 would override the provisions of the Tenancy Act. In support of his contention Mr. Vidhyarthi relied upon a decision of Mr. Justice Gajendragadkar in Shiddurama Shagale v. Basawa Ramayya Swami 58 B.L.R. 1. The facts there were that on May 22 1940 Thevi Patta was passed in favour of the creditor by the debtor and subsequently in 1943 a mortgage was executed between the same parties in respect of the same property. The debtor applied for adjustment of the debts due to the creditor and in these proceedings the creditor contended that the Thevi Patta amounted to a lease and a mortgage and though the debt due to him could be adjusted under the provisions of the Bombay Agricultural Debtors Relief Act 1947 it was not open to the Court to direct that the property belonging to the debtor should be restored to her It was common ground that the tenancy rights set up by the creditor were governed by Section 2A and 3A of the Tenancy Act of 1939. On these facts Gajendragadkar J. held that so far as the provisions of the Tenancy Act of 1939 were concerned the creditor was entitled to plead the status of a protected tenant and therefore under that Act he was not liable to be evicted. But he held that the rights which the creditor could set up under the Tenancy Act did not avail him in the proceedings before him because Section 32(2)(v) of the Bombay Agricultural Debtors Relief Act 1947 expressly authorised the Court to deliver possession of the property of the debtor notwithstanding any law or contract to the contrary. He also held that the policy underlying the provisions of Section 32(2)(v) of the Bombay Agricultural Debtors Relief Act was clear viz. that when debts of agricultural debtors are being adjusted on terms favourable to the debtors on grounds of social justice the Legislature desired that after the debts were adjusted and awards were made embodying the terms on which the debts should be adjusted it was essential that the agricultural debtors should be put in possession of their agricultural lands and in order to make this provision effective the Legislature took the precaution of laying down that an order for possession of their agricultural lands should be passed in favour of debtors though there may be provisions to the contrary in some other laws or though there may be contracts to the contrary between the parties. Basing his contention upon these observations Mr. Vidhyarthi urged that Section 32(2)(v) of the Bombay Agricultural Debtors Relief Act would prevail over the provisions of the Tenancy Act and that being so the petitioners were not entitled to resist his demand for possession under the award passed by the Court.

At first sight the contention urged by Mr. Vidhyarthi would appear to have force but when one examines the provisions of the Bombay Agricultural Debtors Relief Act 1941 the position becomes at once clarified. Section 32 of the Act primarily deals with the making of an award and obviously that award would be as between the parties to the adjustment proceedings. Clause (v) of Sub-section (2) of that section then empowers the Court to pass an order for delivery of possession of any property notwithstanding any law or contract to the contrary. It is evident that Clause (v) of Sub-section (2) of Section 32 enables the Court to pass an order for delivery of possession notwithstanding a plea by the creditor that he is entitled not to be deprived of possession of the property under any law or contract to the contrary. Since the section deals with an award which is to be passed between the parties to the proceeding the order for delivery of possession obviously would be against a party to such proceeding or a party deriving his title from him. If such a party to the proceeding or a person deriving his title or right or interest in the property in question through him were to plead any law or contract to the contrary Clause (v) of Sub-section (2) of Section 32 must prevail against any such law or contract to the contrary. It is clear however that Clause (v) of Sub-section (2) of Section 32 applies to the parties to the proceedings or parties claiming through them but not against third parties or strangers to the proceedings. If for instance a creditor who is a party to the adjustment proceedings were to plead that there is a contract to the contrary which entitles him to retain possession of the property as against the debtor and if the Court were to pass an order for delivery of possession by the creditor to the debtor such an order would prevail notwithstanding such a contract to the contrary. Similarly if the creditor were to claim the right to retain possession of the property under any particular provision of law and the Court has passed an order for the delivery of possession in favour of the debtor such a law to the contrary cannot assist the creditor and he will be bound to hand over possession of the property in question as ordered by the Court. Such a clause was necessary because as stated by Mr. Justice Gajendragadkar in Shiddu Rama Shagales case the policy of the Legislature was that when debts of agricultural debtors are being adjusted on terms favourable to the debtors on grounds of social justice the Legislature desired that after the debts were adjusted and awards were made embodying the terms on which such debts are adjusted it was necessary that the agricultural debtors should be put in possession of their agricultural lands and therefore the Legislature thought that the creditor should not be entitled to plead any contract or any law to the contrary. This however does not mean and cannot mean that the provisions of Clause (v) of Sub-section (2) of Section 32 are to prevail against a third party such as a tenant who claims the right to possession of the land in question in his own right and not derivatively through the mortgagee or the creditor who is a party to the adjustment proceedings. This position becomes clear when we examine the other provisions of the Bombay Agricultural Debtors Relief Act.

Under Section 38(3)(iii) it is provided that if the Court has passed an order for delivery of possession of any property under Clause (v) of sub-Section(2) of Section 32 such an order shall on an application be executed by the Court as if it were a decree passed by it and Section 46 provides that save as otherwise expressly provided in the Act the provisions of the Code of Civil Procedure are to apply to all proceedings under Chapter II of the Act which includes Section 32 and 38. Unless therefore any provision in the Act which provides expressly to the contrary the provisions of Order 21 of the Civil Procedure Code will apply to the execution proceedings taken out by the debtor in whose favour the award has been made. Order 21 Rule 35 of the Civil Procedure Code deals with a decree for immoveable property and provides that where a decree is for delivery of any immoveable property possession thereof shall be delivered to the party to whom it has been adjudged or to such person as he may appoint to receive delivery on his behalf and if necessary by removing any person bound by the decree who refuses to vacate the property. It is clear that such possession is to be handed over to the party in whose favour the award has been made either by the party against whom the award is made or from any other person bound by the decree and who refuses to vacate the property. Rule 36 of Order 21 then deals with the execution of a decree for delivery of immoveable property when in occupation of a tenant. It lays down that where a decree is for the delivery of any immoveable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode at some convenient place the substance of the decree in regard to the property. Thus if a person has succeeded in getting a decree for possession for property he is entitled under this rule to get an order from the Court for delivery of that property to him by any person bound by the decree. If he is resisted or obstructed in obtaining possession from the Court the procedure to be followed is that prescribed by Rules 97 to 103 of Order 21. Rules 35 and 36 refer to cases where a suit is brought for possession of immoveable property and a decree is passed for delivery of the property to the decree-holder. Rules 95 and 96 refer to cases where an immoveable property belonging to a judgment-debtor is sold in execution of a decree passed against him and the purchaser is resisted in obtaining possession through the Court. If the immoveable property of which possession is directed by the decree to be delivered to the decree-holder is in possession of the judgment-debtor actual possession must be delivered to the decree holder under Rule 35. But where it is in possession of a tenant or other person entitled to occupy the same only symbolical possession can be delivered and that has to be done under Rule 36. Rule 97 and onwards of Order 21 deal with the topic of resistance to delivery of possession to a decree-holder or a purchaser. Under Rule 97 where the holder of a decree for possession of immoveable property is resisted or obstructed by any person in obtaining possession of the property such a decree-holder may make an application to the Court complaining of such resistance or obstruction and thereupon the Court has to fix a day for investigating the matter after summoning the party against whom such application is made to appear and answer the same. Under Rule 98 if the Court is satisfied that the resistance or obstruction is occasioned without any just cause by the judgment-debtor or by some other person at his instigation the Court has to direct that the applicant be put into possession of the property. Under Rule 99 if the Court is satisfied on the other hand that the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor the Court has to make an order dismissing the application.

It is thus clear that the procedure to be followed in matters arising in execution of orders passed under the B.A.D.R. Act is the one laid down as far as it is not inconsistent with the Act in Order 21 and the other provisions of the Civil Procedure Code Where a person claims to be in possession not deriving his title to possession from the judgment debtor but on his own account the procedure laid down in Rules 97 to 101 of order 21 would apply. Prima facie therefore a tenant protected under the Tenancy Act would be entitled to take up all defenses available to him under the Tenancy Act including the defence as to jurisdiction and his own right to possession under the Tenancy Act independently of his landlord. In Shiddurama Shagale v. Basawa Ramayya (supra) the parties to the revision application were the judgment-creditor and the judgment-debtor and no question of the rights of a third party such as the mortgagees tenant arose in that case It was in those circumstances that Gajendragadkar J. held that the B.A.D.R. Act would prevail over the Tenancy Act as the primary object in passing that Act was to adjust the debts of an agriculturist and to hand over to the agriculturist mortgagor his lands on redemption of mortgage. In our view that decision is not an authority for cases where questions of tenancy interests of third parties claiming independently of and not deriving their interests from the judgment-debtor but on account of a statutory right arise. There is nothing in Section 32(2)(v) of the B.A.D.R. Act to indicate that rights of such other parties are to be brushed aside and actual physical possession is to be handed over to the decree-holder. On the contrary the fact that under Section 38(3) and Section 46 of the Act provisions of the Civil Procedure Code are made applicable for the execution of the award clearly shows that rights of parties claiming interest in the land on their own account and not derived from the judgment-debtor are to be respected and determined under Rules 97 to 101 of Order 21 of the Civil Procedure Code.

A question similar to the one that has arisen before us arose in civil revision application No. 365 of 1952 decided by Chagla C.J. on July 16 1953 A consent decree was passed in that case by the B.A.D.R. Court between the debtor and three of his creditors in respect of certain sale mortgage transactions. The award provided that the creditors were to hand over possession of the property which was mortgaged to them to the debtor by a certain time. The petitioners then applied to the B.A.D.R. Court by a darkhast for the execution of the award. The opponent was a tenant of one of the creditors in respect of one of the mortgaged properties and was in possession of that property. The petitioner who was the debtor made the tenant a party to the Darkhast The B.A.D.R. Court held that the tenant was bound to hand over possession to the petitioner and made an order accordingly. On appeal the District judge reversed the decision of the trial Court. In the revision application it was contended on behalf of the petitioner that the B.A.D.R. Act contemplated that actual possession should be given to the debtor and that such possession must be given notwithstanding any protection a tenant might be given under the Tenancy Act. It was urged that the executing Court had no option but to execute the order as passed by the. A.D.R. Court. It was further urged that once the mortgage was redeemed any tenancy created by the mortgagee came to an end and therefore the opponent was not a tenant at the time the debtor went to execute the decree against him and therefore the tenant was not entitled to avail himself of the provisions of Order 21 Rule 36. The leaned Chief Justice negatived these contentions and held that what Section 32(2)(v) provided was that possession would be handed over by the creditor to the debtor. It did not contemplate the rights of any parties other than the debtor and the creditor The Act as a whole was concerned with ad justice relations between debtors and creditors and was not concerned with adjusting rights as between a landlord and a tenant or as between a mortgagor and the tenants of a mortgagee. Therefore as between the debtor and the creditor an order for delivery of possession must be passed in cases referred to in Section 32 even though any law or contract may provide to the contrary and to the extent that the property was in possession of the creditor the debtor must be given possession when he went to execute the award by reason of the provisions in Section 38(3). But whether the debtor can get possession when it is not with his creditor but with some one else must be regulated not by the B.A.D.R. Act but either by the Civil Procedure Code or the Transfer of Property Act or any law passed for the protection of tenants. Therefore if the debtor got possession from the tenant of the mortgagee at all it would be under the ordinary law and not under the B.A.D.R. Act. Since the ordinary law has been modified by the Tenancy Act giving protection to the tenant possession from such a tenant has to be obtained having due regard to the provisions of the Tenancy Act.

In our view there is no conflict between the decision of Mr. Justice Gajendragadkar and the decision of the learned Chief Justice. One case dealt with a case where the parties were the judgment-creditor and the judgment-debtor and obviously in such a case it is clear that the policy of the B.A.D. R Act shows that it must prevail over the Tenancy Act even if the judgment-debtor claims protection under the Tenancy Act. The other case dealt with a different position where a third party claiming protection in his own right was not bound by the award. Such a party would not be privy to the proceeding under the B.A.D. it. Act. That being the position the learned District Judge was not correct in discarding the rights of the tenant by relying upon the decision in Siddurama Shagale v. Basawa Ramayya Swami. In view of the fact that it was the Tenancy Act of 1939 that applied to the facts of the case the trial Judge was right in his Conclusion.

The revision therefore is allowed and the order of the learned District Judge is set aside. The respondent will pay to the petitioners their costs of the revision.


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