C. J. R. Paul, J.
1. This appeal arises under the following circumstances; The appellant-Devasthanam filed a suit O.S. No. 123 of 1962 before the District Munsif of Mayuram for possession of the suit site after removing the superstructure put up by the respondents-defendants. The said suit was subsequently transferred to the District Munsif's Court, Nagapattinam and numbered as O.S. No. 268 of 1965 and a decree was passed ex parte on 29th July, 1966 on the defendants' counsel reporting no instructions and the defendants being absent and set ex parte. The decree directs the defendants to deliver possession of the property to the appellant after removing the superstructure put up by them. The description of the property as given in the decree is that it is situated in the 4th Ward T.S. No. 280 having an area of 27,378 sq. ft. with the trees and other plants on it. The respondents-defendants filed a petition to set aside that ex parte decree but it was dismissed and against that order of dismissal they filed C.M.A. No. 45 of 1969 in the Sub-Court, Mayuram but that was also dismissed on 4th August, 1969. The respondents-defendants then filed O.P. No. 26 of 1965 under Section 9 of the City Tenants Protection Act but that petition was also dismissed. The defendants then filed an appeal with a petition to excuse the delay in filing the appeal, against the dismissal of that petition but that was also dismissed. Then the appellant sought to execute the decree for possession obtained by it; whereupon the respondents obstructed delivery of possession and possession was not delivered. E.A. No. 577 of 1970 was then filed under Order 21, Rule 98 of the Civil Procedure Code by the appellant for removal of obstruction and delivery of property to the plaintiff-decree-holder. That application was stoutly resisted by the second and third respondents who contended that they were minors when the decree was passed and their rights were not properly safeguarded and protected, and they were not properly represented by their Court guardian and that the suit property was within the Municipal limits and was situated in an inam estate granted in inam to the plaintiff and they, the respondents, have put up valuable buildings and in the partition among them, the respondents, these buildings and the area adjacent to them which was a necessary appurtenance to their buildings were allotted to them, respondents-defendants 2 and 3 and by virtue of Act XXVI of 1963 and Act XXX of 1963 the entire inam estate became vested in the State Government and the interest created in and over the inam estate before the notified date by the landholders ceased and came to an end and as such the relationship between the plaintiff and them, the respondents, of landholder and tenants became extinguished and under Section 15(4) of Act XXVI of 1963 and Section 13 of Act XXX of 1963, the buildings situated within the limits of the inam estate vested from the notified date in the person who owned the buildings immediately before that date and since the building included the site, the suit site has also become vested in them, the respondents who are the owners of the buildings thereon and hence no delivery of the suit site could be given and whatever right, title and interest the appellant had previous to the notified date came to an end by reason of the aforesaid supervening legislation and even the State Government has no right to dispossess any person, of the land in an inam estate in respect of which the Government considered he is prima facie entitled to a ryotwari patta and the decree therefore has become infructuous and ineffective and cannot be executed.
2. The learned District Munsif of Mayuram upheld the contention of the respondents that under Section 15 (4) of Act XXVI of 1963 and Section 13 of Act XXX of 1963 the suit site also became vested in them, the respondents who are the owners of the buildings. He purports to rely on the decision in Silamban Sri Ghidambara Vinayagar Devasthanam, Deoakottai through its trustee v. Duraiswamy Nadar and Anr. (1937) 2 M.L.J. 181
3. The learned Subordinate Judge on appeal concurred with the view of the, learned District Munsif and confirmed the order of the learned District Munsif and hence this second appeal in which it is contended that since the appellant had obtained a decree for eviction no subsequent legislation could nullify the decree and the executing Court cannot go behind the decree.
4. It is not disputed that the decree for ejectment of the respondents passed ex parte in OS. No. 268 of 1965 has become final for the petition filed for setting aside the ex parte decree was dismissed and that dismissal was confirmed on appeal and even the petition O.P. No. 26 of 1965 filed by the respondents under Section 9 of the City Tenants' Protection Act was dismissed and when an appeal against that dismissal was filed after a delay with an application to excuse the delay that was also dismissed and consequently the appeal was not numbered. The legal effect therefore is that the appellant. Devatsthanam has a decree for ejectment as owner of the suit site. The Madras Inam Estates Abolition and Conversion into Ryotwari Act XXVI of 1963) came into force On 11th December, 1963 while the Madras Minor Inams Abolition Act (XXX of 1963) came into force on 28th January, 1964. The suit O.S. No. 268 of 1965 had been filed even as early as in the year 1962 but the decree was passed only on 29th July, 1966 long after Act XXVI of 1963 of Act XXX of 1963 had come into force. During the pendency of the suit, even though the aforesaid Act had come into force, the respondents did not file any additional written statement raising the contention, which they have now raised. Therefore it is contended that the respondents cannot now be allowed to raise this plea in the execution, proceedings, for the executing Court cannot go into the question of the validity of the decree. The learned Counsel for the respondents, however, contends that the general principle that the executing Court cannot question the decree would not apply to a case where the decree had become inexecutable or infructuous or ineffective because of a change in the law. In support of this contention the decision of the Supreme Court in Haji Sk. Sabhan v. Madkarao : AIR1962SC1230 has been cited by the learned Counsel for the respondents. In that case the suit was filed by the respondent therein for possession of certain fields basing his claim on his proprietary right to recover possession and the suit was decreed and the decree was upheld by the Nagpur High Court on 20th April, 1951. Meanwhile, the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 had come into force sometime before the delivery of the judgment in the High Court on 20th April, 1951 and the hearing of the arguments in the appeal before the High Court sometime before 31st Match, 1951. The fact that the aforesaid Act had come into force was not brought to the notice of the High Court before it delivered its judgment on, 20th April, 1951. When the decree-holder filed an execution application for delivery of possession of the fields, the judgment-debtor filed an objection to the delivery of possession on the ground that the decree-holder's right to dispossess the judgment-debtor had become extinguished since the decree-holder had lost his proprietary rights in the fields, by virtue of the aforesaid legislation while the judgment-debtor had acquired rights to occupy the fields. The contention raised on behalf of the decree holder was that such a contention, cannot be raised before the executing Court but that the judgment-debtor should have raised such a contention before the High Court, before the High Court passed orders in the appeal. The Supreme Court observed in regard to that contention as follows:
The contention that the Executing Court cannot question the decree and has to execute it as it stands, is correct, but this principle has no operation on the facts of the present case. The objection of the appellant is not with respect to the invalidity of the decree or with respect to the decree. His objection is based on the effect of the provisions of the Act which had deprived the respondent of his proprietary rights including the right to recover possession over the land in suit and under whose provisions the respondent has obtained the right to remain in possession of it. In these circumstances, we are of opinion that the Executing Court can refuse to execute the decree holding that it has become inexecutable on account of the change on law and its effect.
In view of the aforesaid decision of the Supreme Court, the judgment-debtors are entitled to contend in the execution proceeding that the decree has become inexecutable by reason of the coming into force of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act of 1963 which came into force on 28th January, 1964. The question now is hether by reason of the coming into force of the aforesaid Act the decree has become inexecutable.
5. The Minor Inams (Abolition and Conversion into Ryotwari) Act of 1963 was enacted to provide for the acquisition of the rights of inamdars in minor inams in the State of Madras and the introduction of ryotwari settlement in suchinams as stated in the preamble to the Act. The Act applies to all minor inams. Under Sub-section (b) of Section 3 of the aforesaid Act, with effect on and from the appointed day and Save as otherwise expressly provided in this Act, every minor inam including all communal lands and porambokes, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, situated within the boundaries thereof, shall stand transferred to the Government and vest in them free of all encumbrances. Sub-section (c) states that all rights and interests created by the inamdar in or over his inam before the appointed day, shall, as against the Government, cease and determine. Sub-section (3) which deals with the taking possession of the minor inam with all accounts, registers, pattas, muchilikas and other documents relating to the minor inam contains a proviso which reads as follows:
Provided that the Government shall not dispossess any person of any land in the minor inam in respect of which they consider that he is prima Jade entitled to a 'ryotwari patta pending the decision of the appropriate authority under this Act as to whether such person is entitled to such patta.
It the case now before me it is seen that on 28th June, 1968 the Settlement Tahsildar passed an order granting ryotwari patta in respect of T.S. No. 280/3 of an extent of 28,549 sq. ft. to the appellant-temple. It is stated therein that that site was a coconut tope in which 4 thatched houses and 1 tiled, house were constructed by the first respondent after the initiation of a suit by the temple against him. Further the Order refers to the ex parte decree obtained by that temple, which had since been taken up on appeal in C.M.A. No. 25 of 1968 on the file of the Sub-Court, Nagapattinam, for delivery of possession, of the land after removing the structures thereon. The Tahsildar found that under Section 9 (J) (a) of the Madras. Act XXVI of 1963 the temple was entitled to the issue of ryotwari patta with effect on and from the notified date in respect of those lands. The learned Counsel for the respondents, however, argued that the property shown as item-1 in the order of the Settlement Tahsildar is not the site in question now in these proceedings. In support of that argument he, has pointed out that the site is described as T.S. No. 280/3 of an extent of 28,549, sq. ft. in that order 'whereas the site' described in the decree is situate in T.S. No. 280 and its extent is 27,378 sq. ft. But then it is clear that item-1 referred to in the Settlement Tahsildar's order is the site in question in these proceedings for as I have already stated it refers to the ex parte, decree obtained by the temple which had been taken up in appeal in C.M.A. No. 25 of 1968 and it is also stated that delivery of possession of the land after removing the structures thereon had been asked for. The T. S. number of item-I in the order of the Settlement Tahsildar is also 280 though the sub-division number is noted as 3 whereas in the decree the sub-division number is not noted. There is also a slight difference in the extent. Nevertheless, it is clear that item-1 in the Settlement Tahsildar's order is the site in question in these proceedings in respect of which a ryotwari patta has been granted to the temple. Against that order no appeal has been preferred.
6. Now, as I have already pointed out under Sub-section (d) of section. 3 of the Act, the Government shall not dispossess any person of any land in the inam estate in respect of which they consider that he is prima facie entitled to a ryotwari patta pending the decision of the appropriate authority. Therefore even, before the grant of a ryotwari patta, the possession by any person of any land in a minor inam is protected, if the Government considers that he was prima facie entitled to a ryotwari patta. To that extent there is a restriction of the vesting of the estate under Section 3. It is also noticed that the respondents never applied for the issue of a patta in their favour. The issue of patta to the appellant was even before it took proceedings in execution. Once patta is issued, the grounds on which it had been granted cannot be probed in a proceeding like this.
7. The learned Counsel for the respondents, however, cited the decision in Raja of Vizianagaram, In re (1953) 66 L.W. 84 : (1953) 1 M.L.J. 289; A.I.R. 1953 Mad. 416. There it was held that once it is granted that the sites in question in that case which were house sites became part of the permanently settled estate, Section 3 (b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act of 1948 certainly gave power to the Government to take them over unless the Zamindar was entitled to be granted ryotwari pattas under Section 12 and similar provisions of that Act. But that decision will not apply to the case now before me. There the contention that was raised was that the lands were owned before the permanent settlement by the Zamindar's predecessor and that the permanent assessment was not arrived at after taking into account uncultivated arable and waste lands, that they were given practically free to the Zarnindar without any additional assessment and that, therefore, the vacant sites must he taken to be ortside the scope of the permanent settlement. In repelling that contention, the Division Bench held as already stated above.
8. Undoubtedly, under Section 3 of the Act the entire inam vested in the Government. But the proviso to Sections 3 (3), 3 (d) states that person who was in possession of any land in the minor inam whom the Government consider was prima facie entitled to a ryotwari patta pending the decision of the appropriate authority under the Act, as to whether he is entitled to such patta or not, shall not be dispossessed by the Government. Therefore, even though in the case now before me, the entire minor inam vested in the Government by reason of Section 3 of the Act, yet apparently the Government by reason of Section 3 of the Act, did not dispossess the landholder, namely, the temple, of the land since they considered that it was prima facie entitled to a ryotwari patta and subsequently the Settlement Tahsildar had granted a ryotwari patta to the appellant. There fore the vesting provision under section. 3 of the Act cannot be invoked by the respondents to defeat the claim of the appellant to recover possession of the land, in respect of which patta has been granted to it, from the tenants.
9. The learned District Munsif, however, held that the decision in Silamban Sri Chidambara Vinayagar Devasthanam. Devakottai through its trustee v. Duraismamy Madar and Anr. : (1967)2MLJ181 , was applicable to the present case. But then the aforesaid decision came up on appeal before a Division Bench in Silamban Sri Chidambara Vinayagar Swami Devas thonam, Devakottai through its trustees S. T. M. V. R. Murugappa Chettiar and Ors. v. Duraiswami Nadar and Ors. : AIR1971Mad474 . There the landholder sued the tenant for rent in respect of a site let out prior to 1948 for building purposes. The site was situated in a village which constituted an estate which was notified and taken over under the provisions of Madras Act XXVI of 1948 and on that date the building continued to be in the occupation of the tenant. It was contended on behalf of the tenant that under the provisions of the Madras Act XXVI of 1948, the site along with the building had vested in the tenant and the title of the landholder got extinguished. It was held that the result of Sub-section (5) of Section 18 of Act XXVI of 1948 was that the definition contained therein with regard to a building would have this consequence that, if the building as well as the site on which it stands both belong to the same person upon the notification, both of them will vest in that person, but the provisions of Sub-sections (4) and (5) of Section 18 of the Act do not contemplate a transfer of the ownership of the site to the owner of the building where it had not already belonged to him and unless there is a coalescence of the ownership of the building as well as of the site on which it stands, there will be no vesting under Sub-section (4). It was further observed in that decision that 'if the appellant even after the notified date continues in possession of the land undisturbed by the rightful owner, if any, that, in our opinion, would entitle it to demand and collect rent from the tenant and the possessory title of the appellant subsequent to the date of the notification will enable it to maintain the claim for rent.'
10. In the case now before me, as I have already pointed out even though the entire minor inam vested in the Government, the Government did not take possession of the land in question and subsequently ryotwari patta had been granted to the appellant and as such the appellant was certainly entitled to get possession of the land in pursuance of the decree from the tenants-respondents.
11. In Muthuvel Pillai v. Hazarath Syed Shah Mian Sakkab Sahib Kadhiri Thaikal : AIR1974Mad199 a suit was filed by the Hazarath Syed Shah Mian Sakkab Sahib Kadhiri Thaikal for recovery of vacant possession of a particular land from two defendants alter removing the superstructure put up thereon by them on the ground that the plaintiff was the owner of the site and that the site was leased out to one Muthayya Pillai and the second defendant and the period of lease had expired and the defendants 1 and 2 who had put up superstructures on the site had sub-let the property in favour of the third defendant. After obtaining a decree for possession of the suit property after removing the superstructures put up by defendants 1 and 2 and for rents, the plaintiff took execution proceedings for obtaining possession of the property as per the decree and delivery was ordered: A G.M.A. was filed against that order which was dismissed. It was contended in the C.M.S.A. filed against the dismissal of that G.M.A. that the decree was not executable and the respondent-plaintiff cannot recover possession inasmuch as the land had been taken over by the Government under the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act XXX of 1963. There also ryotwari patta had been issued in favour of the landholder for the land in question. Gokulakrishnan, J. observed as follows:
The question as to whether after the coming into force of the Act XXX of 1963 a landlord who is the owner of a vacant site can get possession of the same from the tenant, came up for decision in M, Ramaswami Pillai v. Azrafalh Syed Sha Mian Sakkab Sabib Khadiri Thaikal, Thanjavar G.M.A. No. 23 of 1972 before this Court. Venkatarsman, J., relying on the decision in Silamban Sri Chidambara Vinayagar Devasthanam v. Duraisami Nadar 84 L.W. 492 : : AIR1971Mad474 and also the one in (Veerappa Chettiar v. Ravoa Gushadeswara Swami Deoasthanam) S.A. No. 369 of 1966 held that the provisions of the Act will apply only to that person who is the owner of both the building and the site.
The learned Judge rejected the contention of the learned Counsel for the appellant-tenant that no execution can take place in view of Section 13 of the Tamil Nadu Act XXX of 1963.
12. In the case now before me, it is clear that the superstructures were put upon the site which was a coconut tope, after the suit for eviction was instituted. The finding of fact is that it is the tenants who had put up the building after the suit.
13. Admittedly, on the notified date it was the appelant-Devasthanam who was the owner of the site. By reason of Section 3 of the Act the respondents cannot contend that they have become owners of the site in view of the fact that under Section 13 of the Act (XXX of 1963) every building situated within the limits of an inam land shall, with effect on and from the appointed day, vest in the person who owned it immediately before that day and 'building' has been defined in Sub-section (2) of that section as including the site on which it stands and any adjacent premises occupied as an appurtenance thereto, especially when the ryotwari pattas has been issued to the appellant for the site in this case. A combined reading of Section 3 (b) and Section 13 of Act XXX of 1963 would clearly show that the buildings in an Inam do not vest in the Government under Section 3 (b). This is made clear also by Section 3 which deals with the consequences of notification and states that the consequences, mentioned therein would result save as otherwise expressly provided in the Act. Therefore Section 3 (6) would not include the vesting of the buildings in an estate.
14. The orders of both the Courts below will have, therefore, to be set aside and are set aside and this second appeal is allowed with costs.
15. This case having been set down this day for being spoken to on the letter of the Advocate dated 20th January, 1976 the Court made the following Order (dated 19th March, 1976).
16. Under Rule 28, Order 4 of the Appellate Side Rules, leave should have been asked for orally immediately after the judgment was delivered. No such leave was asked for at that time and hence it cannot be granted subsequently.
17. The learned Counsel for the respondents now wants time to be given for vacating the premises. For this he should file a separate petition with notice to the other side as at the time of the pronouncement of the judgment, no such request was made.