B.J. Divan, J.
1. This is an appeal under Section 47 of the Code of Civil Procedure, arising out of certain execution proceedings.
By a document executed on February 25, 1929, Mansukhlal Ramji sold Survey No. 533 of Dohad to Chhotalal Mansukhlal and Punamchand Shivlal. The sale-price was mentioned as Rs. 10/000/- but it was not paid at the time of the sale. Thereafter Punamchand paid the entire price to the seller and Punamchand in his turn sold the property to Nayak Mansinhji Mokanrsinhji. Mansukhlal, the vendor, died and his heir was his daughter Bai Punji. Bai Punji filed a suit against Chhotalal Mansukhlal who is the respondent in the present appeal to recover the purchase price. Subsequently Chhotalal filed a suit against Bai Punji Punamchand Nayak Mansinhji and the tenants on the property to recover possession of the property. It may be pointed out that the appellants before this Court are those tenants. On August 8 1943 the suit was decreed in favour of Chhotalal Mansukhlal and Punamchand Shivlal. Against that decree appeals were filed to the High Court of Bombay. These appeals were by Bai Punji and Nayak Mansinhji being Appeal No. 310/1943 and No. 317/1943 respectively. On November 5 1947 the High Court varied the trial Courts decree and directed that half of the property should be given to Chhotalal the respondent on his paying Rs. 5 0 to Bai Punji. On April 22 1948 Special Darkhast No. 2/1948 was filed by the decree holder Chhotalal for execution of the decree. The Collector was directed by the Court to partition the property and thereafter the Collector partitioned the property and ordered symbolic possession of half of the property to be given to Chhotalal. Thereafter on August 11 1952 symbolic possession was in fact given to Chhotalal. Thereafter Chhotalal applied for actual possession of the half share that had been given to him by way of symbolic possession. On February 9 1957 the learned Judge in the Court below instead of passing an order wrote a letter to the Collector asking him to give actual possession to the decree-holder Chhotalal. A Special Civil Application being No. 1165/1957 was filed in the Bombay High Court against this action on the part of the learned Judge at Godhra in writing the letter instead of passing a regular order. By its decision dated July 17 1957 the learned Judge's action was set aside by the High Court and he was directed to pass an order after hearing the parties. On January 9 1958 written statement was filed by the present appellants who as I have pointed out earlier were the tenants claiming from Mansukhlal. That written statement is Ex. 40 and various contentions were raised by that written statement. They contended by that written statement that actual possession could not be given. Secondly that the decree did not require actual possession to be given; and thirdly that they were protected tenants and that they were not the tenants of Chhotalal the purchaser but they were the tenants since the time of Mansukhlal and further that as they were protected tenants they could not be evicted and only the Mamlatdar under the Bombay Tenancy and Agricultural Lands Act had the jurisdiction to hand over actual possession. The contentions urged by the appellants in the Darkhast proceedings were rejected and the learned trial Judge passed an order on March 20 1958 directing that actual possession should be given to the respondent. It is against this order passed in execution that the present appeal has been filed. It may be pointed out that the appeal was originally filed in the High Court of Bombay and after bifurcation the appeal has been transferred to this Court.
2. Mr. Shah on behalf of the appellants contends that as the appellants were protected tenants they could not be evicted by an ordinary Court and that in any event it is only the Mamlatdar who had exclusive jurisdiction under the Bombay Tenancy and Agricultural Lands Act 1948 to hand over possession to the landlord. Now as against these contentions there are various decisions of the Bombay High Court which go to show that when a suit has been instituted before coming into force of the 1948 Act and that suit has ultimately resulted in a decree for possession then there is nothing in the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 which debars the ordinary Civil Court from executing its own decree for possession. In this particular case it is to be borne in mind that the suit was filed as far back as 1942. The trial Courts decree was passed on August 10 1943 and the High Courts decree was passed on November 5 1947 The High Court did not set aside the trial Courts decree but merely varied the decree and directed that on Chhotalal the respondent in the present appeal paying Rs. 5000 to Bai Punji possession of half share in the Survey No. 533 of Dohad should be given to him.
Taking these decisions in a chronological order the first decision in point of time is the decision in Sudkya Ramji Mahar v. Mohammed Isak reported in 52 Bom. L.R. 123. It may be pointed out that the Division Bench in that case was not concerned with the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 which have to be considered by me in present case; but Mr. Shah appearing for the Appellants has very strongly relied upon certain observations of Mr. Justice Bavdekar in that case. I may point out that even under the 1939 Act which was the Act in force before the Bombay Tenancy and Agricultural Lands Act 1948 came into force there were certain provisions under Section 37(1)(c) which gave jurisdiction to the Mamlatdar to hand over possession to the landlord. At page 131 of the report Mr. Justice Bavdekar has observed as follows:
The argument that even though (he landlord has obtained the decree in a civil Court he must proceed for (he execution of the order before the Mamlatdar is obviously not tenable.
He also held that Section 17 of the Bombay Tenancy Act 1939 did not apply in cases in which a decree had been obtained by the landlord before the passing of th6 Act. There were certain observations at page 130 of the report which Mr. Shah for the appellants relied upon but on an analysis of those observations and a closer reading of the case it is obvious that the passage on which Mr. Shah was relying was merely reproducing the arguments of Mr. Datar who was appearing for the appellants in that particular case before the Division Bench. It cannot be said that the passage on which Mr. Shah relied is a conclusion or the decision of the Court and it may be pointed out that all the different arguments urged on behalf of the appellants were rejected by the Division Bench and merely an application for amending the written statement was allowed by the Court. Then there is a decision in the case of Rajesab Wallad Imamsab Bhagwan v. Harishchandra Honnawar reported in 56 Bom. L.R. 638. This case was decided by Mr. Justice Shah as he then was of the Bombay High Court. There the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 and in particular Sections 29(2)(4) 70 85 and 89(1)(2) were considered. At page 641 it was observed as follows:
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.
In this particular case before me the Civil Court had passed a decree as far back as in 1943 and that decree was confirmed by the High Court in 1947 subject to the variation which does not affect the point which is under consideration before me and hence in view of this judgment in 56 Bom. L.R. 638 it is clear that the jurisdiction of the Civil Court to execute a decree properly passed by it is not ousted by anything that is stated in the Bombay Tenancy and Agricultural Lands Act 1948 At page 642 it has been further observed as follows:
In my view the expression proceeding used in Section 89(2)(b) 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.
3. There is another decision in the case of Prithviraj Chunilal Sand v. Hari Ganesh Parkhe reported in 56 Bom. L.R. 1076 where the view of Mr. Justice Shah in 56 Bom. L.R. 638 (supra) was approved by the Division Bench at page 1080. At page 1079 it was observed as follows:
The right which is sought to be enforced in the present proceeding is the right to evict a trespasser. That right was asserted in the suit and was recognised by the decree and is now being enforced in the execution of that decree. And it is exactly this kind of right and legal proceeding instituted to enforce it that are saved by the provisions of Section 89(2) of the Tenancy Act of 1948. If this right and the proceedings in which it is enforced are protected under Sub-section (2) of Section 89 no contention can be raised against the enforcement of this right by reference to any of the provisions of the Tenancy Act. Nothing contained in this Act will affect the said right and the legal proceedings to enforce that right. If that be the true position the declaration given by the Mamlatdar purporting to exercise jurisdiction under Section 70 can create no difficulty in the way of the decree-holder; it must be remembered that the relationship of landlord and tenant between the plaintiff and the defendant has been already determined and a decree has been passed against the defendant on the basis that he was a trespasser. In such a case the Mamlatdar would have no authority to hold that the defendant is a protected tenant. The declaration granted by the Mamlatdar is therefore outside his jurisdiction and cannot affect the plaintiffs right to evict the defendant.
In the instant case it may also be pointed out that the Mamlatdar has recognised the appellants as protected tenants and in fact an order recognizing the appellants as the owners under Section 32(h) of the Tenancy Act under the Tillers day legislation has been passed; but as pointed out by the Division Bench in 56 Bom. L.R. 1097 (supra), whatever the Mamlatdar does in these circumstances is outside his jurisdiction and hence cannot affect the right of the respondent in the present appeal.
Then there is a judgment of Mr. Justice Bavdekar in the case of Raghunath Hari Deshpande v. Kashinath Ramchandra Deshpande reported in 59 Bom. L.R. 691. There what happened was that by a compromise decree passed on November 7 1948 the plaintiff and the defendant agreed that the defendant was to remain in possession of the suit land till January 18 1953 and if the defendant did not hand over possession by that date the plaintiff was entitled to make an application for execution and obtain possession. On December 28 1948 the Bombay Tenancy and Agricultural Lands Act 1948 was made applicable to the area in which the land in suit was situated. The defendant failed to hand over possession by January 18 1953 and on March 17 1953 the plaintiff made an application for execution of the decree for possession of the land. The defendant contended that the executing Court had no jurisdiction to give the plaintiff possession of the land because of Section 29 and Section 85(1) of the Bombay Tenancy and Agricultural Lands Act 1948 or either of these sections of the Act. The plaintiff contended that Section 89(2) of the Act applied and nothing in Sections 29 and 85 would affect his right to obtain possession of the land in execution of the decree. It was held that when the decree provided that the plaintiff was entitled to possession of the property on January 18 1953 the plaintiffs right to obtain the possession on that date without having to file a suit afterwards was a vested right which the plaintiff obtained on the date of the decree. But this decision cannot help the appellants in the present case because in the instant case the decree was already passed; the suit was instituted and there was no right left in the appellants after the passing of the decree by the High Court on November 5 1947
4. Mr. C.K. Shah appearing on behalf of the respondents has drawn my attention to an unreported judgment of a Division Bench in Letters Patent Appeal No. 52/1954 delivered on March 20 1956 In that case it was observed as follows:
In the present case the decree was passed long before the Act carne into force. The execution proceedings are a continuation of the suit and since the suit itself had been filed before the Act came into force the present execution proceedings which are a part or continuation of the proceedings in the suit itself shall be continued and disposed of as if this Act had not been passed. In other words the decretal right which the landlord seeks to enforce by the present execution proceeding will have to be dealt with as if the Act had not been passed and no provision in the Act was applicable to the right in question.
Mr. N.C. Shah on behalf of the appellants also relied upon certain observations of Their Lordships of the Supreme Court in the case of Sakharam @ Bapasaheb Narayan Sanas and Anr. v. Manikchand Motichand Shah and Ors. in Civil Appeal No. 185 of 1956 decided on 19th April 1961 (64 Bom. L.R. 403). After considering the provisions of Section 89(2)(b) Their Lordships of the Supreme Court stated as follows:.the intention of the legislature was that the litigation we are now dealing with should be disposed of in terms of the repealed statute of 1939.... The legal effect of the provisions of Sub-clause (ii) aforesaid is only this that any legal proceeding in respect of the right claimed by the defendants shall be continued and disposed of as if the Act of 1948 had not been passed.
In my opinion the authorities in the unreported judgment in the Letters Patent Appeal No. 52/1954 and the decision of Mr. Justice Shah in 56 Bom. L.R. 638 (supra) are directly in point and 1 follow these decisions; and in the light of these decisions it is clear that the suit having been instituted as far back as in 1942 long before the coming into force of the Bombay Tenancy and Agricultural Lands Act 1948 the execution proceedings for the enforcement of that decree must lie in the ordinary Civil Courts and there is nothing in any of the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 which deprives a Civil Court of that jurisdiction.
5. Mr. Shah for the appellants at the lime when I was delivering the judgment wanted to raise a point about the rights of the appellants under the Small-Holders Relief Act. This point was not raised in the court below and it is only at the fag-end of the judgment that Mr. Shah raised this point. Now the question whether the appellants are protected by the Small Holders Relief Act is a question partly of law and partly of fact. The first question to be decided would be whether any of the tenants are small-holders or not and unless there is material on the record it is difficult to decide this particular point. The appellants have not raised any such point in the Court below and I have not allowed them to raise it at this stage.
In these circumstances the appeal fails and is dismissed with costs.