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ibrahim Sahib Vs. Konammal and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1923Mad25; (1922)43MLJ179
Appellantibrahim Sahib
RespondentKonammal and anr.
- .....of a jaghir against the 1st defendant in the suit. there was one application for delivery by the decree-holder, first against the 1st defendant to be referred to as the judgment-debtor. thereon delivery was ordered. the judgment-debtor applied for slay, but the decree-holder said that the delivery was complete and therefore no stay was possible. an appeal was filed in this court against the decree and c.m.p. no. 729 of 1921 was presented for stay of execution. the learned judge, before whom it came, called for a report as to whether execution had taken place; and the district judge reported that the a schedule property, that is the jaghir, the property with which we are concerned, had been delivered. the learned judge, therefore dismissed the application. against his order of dismissal.....

1. This appeal arises in proceedings for the execution of a decree in favour of the present 1st respondent. The decree is apparently in the usual from for possession of a Jaghir against the 1st defendant in the suit. There was one application for delivery by the decree-holder, first against the 1st defendant to be referred to as the judgment-debtor. Thereon delivery was ordered. The Judgment-debtor applied for slay, but the decree-holder said that the delivery was complete and therefore no stay was possible. An appeal was filed in this Court against the decree and C.M.P. No. 729 of 1921 was presented for stay of execution. The learned Judge, before whom it came, called for a report as to whether execution had taken place; and the District Judge reported that the A schedule property, that is the Jaghir, the property with which we are concerned, had been delivered. The learned Judge, therefore dismissed the application. Against his order of dismissal Letters Patent Appeal No. 11 of 1921 was filed. It ended in a consent order passed on 3-5-1921, maintaining the decree-holder in possession of the Jaghir A schedule property so far as the proceedings in this Court were concerned. On 7-10-1921 however, the decree-holder applied again in the lower court for possession and for removal of obstruction under Order 21, Rule 98 or in the alternative for the issue' of a fresh warrant for delivery, His affidavit in connection with that particularly referred to certain action by the judgment debtor in connection with a temple, which it is admitted was part of the Jaghir. An order was then passed, rather anomalously described as under Rule 98, and at the same time notice was issued to the Judgment debtor who however was not served. On the return of the warrant the decree-holder apparently accepting the return that possession had been given the proceedings were closed. On 5-1-1922 an application was made by the decree-holder to the District Judge, the order on which is now under appeal before us. It was at this point that the present appellant, one of two lessees of what may for the present be described as rights in the Jaghir, was impleaded. The prayers were to put the decree-holder in peaceful enjoyment of the forest produce, to direct the appellant to remove his obstruction, if necessary, to issue a warrant for delivery and lastly to declare that the rights decreed should be secured to the party and to obtain for her magisterial protection in the exercise of those rights. These prayers again were anomalous. But the lower court then made the order, with which we are concerned, granting generally the orders applied for and stating that appropriate notices to secure the decree-holder's entry into the forest, which was the subject of the application and her enjoyment of the produce would issue.

2. The first main objection taken to this order assumes for the sake of argument that the rights of the appellant before us, the lessee, might legitimately be dealt with in execution. It is then said, that, the court having already on more than one occasion issued execution and the fact that delivery had been made having on more than one occasion been accepted by the decree-holder, no further execution should issue. There is no doubt that the statements involved regarding the course of occurrences are fully justified. There was the report to the learned Judges of this Court, to which no objection was taken by the decree-holder; then the compromise, to which the decree-holder consented in this Court based on delivery having been given; lastly there WHS the decree-holder's acquiescence on 2-1-1921 in the closure of proceedings in the lower court with reference to the return that delivery had been given. Further however it is argued that he was not aware of the claims of the lessees, that those claims were entirely valueless, resting as they did on a lease given to them pendente lite, and that he was entitled to move the lower court to complete the execution, which he had already mistakenly accepted, when he found that it was incomplete. We cannot accept that statement. The execution seems to us to have been definitely closed and nothing in the nature of fraud is in question. It is not in our opinion open to the decree holder to urge, as he has done here, that the delivery may be accepted as complete against one person, when further delivery is still necessary against another. As the statement on the return was that delivery was complete, the decree-holder's acceptance of it as such must be taken in its natural meaning, the only meaning which we think is recognised in the Code, that the delivery was complete absolutely and against the world. It is quite clear that delivery of possession to the decree-holder involves that no person other than the decree-holder remains in possession. That will not be the less so, if delivery is symbolical, since the physical possession of the tenants in such cases is of course not in question. Taking this view we cannot accept the decree-holder's answer to the lessee appellant's contentions in this form.

3. The lessee, however, has objected also to the lower court's order on another ground. Before the lessees came on the scene, application for delivery had been made in the usual form and had proceeded on the assumption that the delivery of ordinary landed estate was in question. On the execution application, on which the present order was passed and in which the lessees were for the first time referred to, special reference was made to the arboreal products, which form the chief source of income of the estate, and to the fact that those products are usually farmed out to a contractor by the jaghirdhar. The lower court in its order proceeded to make a distinction between the forests and their products, observing that all that the decree-holder got by the symbolical delivery was the technical possession of the Jighir, that the respondents, lessees, had obstructed her and after paying the defendant in the suit the lease amount had put forward his claim in opposition to hers to be the owner of the produce of the forests leased to them by him. The order further states: 'This produce was not a thing which could be reduced to possession at the time of the symbolical delivery. Nor does it appear in the delivery receipts that the forests have been ever symbolically handed over'. It has to be observed that the lower court's reference to the previous delivery as symbolical is not justified by anything in the record before us and that there is no reason for assuming that the delivery of the forests was not an actual delivery. Again its reference to the produce as a thing which could not be reduced to possession at the time of the delivery is not intelligible. It presumably could have been reduced to possession as easily as any other produce on land, which is ordinarily regarded as passing at the time of the delivery, unless it is statedly excluded. Unfortunately there is no reference in the lower court's order to the real nature of the lessee's rights. We of course are not attempting in proceedings of the present character to decide finally what those rights consisted in. On the materials before us, we find that as is stated in paragraph 4 of the judgment in the suit the timber and fruit and dye stuffs and other arboreal products are farmed out to contractors who make their own arrangements to collect these valuable commodities from the ryots and the latter are restrained from disposing of them to any but the contractors. We have also been shown what is admitted to be a correct copy of the appellant's-lease and find that under it they became entitled to buy the produce at the proper price from the persons who collect it on the spot, to take it to market and to dispose of it there and to give sub-leases of their rights in consideration for the payment of a sum of money to the zamindar-lessor. In fact they might more appropriately be described as contractors than lessees; and if the former term had been used, probably the lower court would not have fallen into the mistake it did since it is quite clear that there is nothing here resembling any ordinary lease of land or forests. There is simply what may be termed a license conferred on the appellant and his partner, an exclusive right to take over the forest produce and to dispose of it for his own advantage. That being the position of the appellant it is impossible to see how they can be regarded as tenants, against whom there could be an order for delivery under Order 21, Rule 35 or 36 at all. They are in fact, if the decree-holder's view of their position is correct, simply persons who are claiming to enter on the forests so far as the jaghir is concerned without having any right legitimately derived from any competent person to do so. The appellant's remedy will he either in criminal prosecution or in a suit for damages.

4. On this line of argument being taken, the 1st respondent, contended that as the lower court's order could not have been passed and ought not to be regarded as having been legitimately passed in execution the matter does not arise in execution and the order is not appealable under Section 47. In reply Mr. Ramachandra Aiyar on behalf of the appellant asked us to treat the petition as a revision petition; and, if it were necessary to decide the case with reference to this line of argument, we should be prepared to do so.

5. The result is that appeal is allowed and the lower court's order set aside, the application for execution being dismissed, with costs throughout as against the 1st respondent.

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