Document Fragment View

Matching Fragments

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2372- 2373/68.

Appeals by Special Leave from the Judgment and Order dated 9th February 1968 of the Mysore High Court in Execution Second Appeal Nos., 86 of 1965 and 78 of 1967. S. S. Javali and M. Veerappa for the Appellants. Naunit Lal and K. Yasudev for Respondent No. I in both the appeals.

K. Ramkumar and K. Jayaram for Respondent No. 4 (In C.A. 2372/68).

The Judgment of the Court was delivered by UNTWALIA, J. These two appeals by special leave are from the common judgment of the Karnataka High Court. In the year 1945, a suit for partition and possession was filed by the original respondent No. 2 (since deceased and his heirs substituted). In the said suit all the co-sharers were impleaded as defendants 1 to 7. The 4th respondent in these appeals was defendant No. I and the predecessors in interest of the appellants were defendants 5 and 6. Each branch had 1/7th share. A preliminary decree was passed by the Trial Court on December 13. 1954, which was eventually confirmed by the High Court in a second appeal decided on January 16, 1963. After the passing of the preliminary decree in the year 1954, in accordance with the law prevalent in the State of Karnataka "(then known as My-sore State), an execution case being L.D. 117 of 1956 was filed by the plaintiff- decree holder and the appellants in the Court which had passed the preliminary decree for final partition and possession; the same had to be made and given by the Collector. In the execution case was impleaded respondent No. 1 in these appeals as judgment debtor No. 20 because he had been inducted as a lessee of a portion of the suit properties during its pendency in or about the year 1948 by respondent no. 4. The effect of impleading respondent no. 1 as a judgment debtor was as if he was impleaded as a party to the suit before the final partition. On May 29, 1961, the executing court 16-315SCI/78 directed the Collector to partition the suit property and to give possession of their respective allotted lands to the various co-sharers including the appellants. The Collector made the final allotment of the various lands to the different co-sharers. The disputed land over which respondent no. I had been inducted by respondent no. 4 was allotted to the share of the appellants sometime after May 29, 1961 and before May 29, 1965. On 29-5-1965, in pursuance of the direction of the Execution Court and the Collector, the Tahsildar went to effect the delivery of possession but proposed to deliver only symbolical posses- sion of the disputed land and declined to deliver actual possession, as, he found respondent no. 1 to be in actual cultivating possession of it. The Execution Court was moved in the matter and by its order dated June 8, 1965, it directed the Tahsildar to deliver actual possession. The said order was confirmed in appeal on July 31, 1965 by the First Appellate Court. Respondent no. 1 filed Execution Second Appeal No. 86 of 1965, presumably because the order dated 8-6-1965 of the Execution Court was one under section 47 of the Code of Civil Procedure' In this appeal, the High Court made certain conditional orders of ad-interim stay. The conditions were not complied with by respondent no. 1. Thereupon, the appellants made an application again to the Execution Court for directing actual delivery of possession. The first respondent contested the application filed by the appellants on the ground that he being a tenant of the land had made an application under the Mysore Land Reforms Act, 1961 which had come into force on October 2, 1965, hereinafter to be called the Karnataka Act, seeking a declaration that he was a tenant within the meaning of that Act. The Execution Court, by its order dated August 8, 1967, again directed the Tahsildar to deliver actual possession and its order was confirmed by the First Appellate Court on August 31, 1967. Execution Second Appeal No. 78 of 1967 was filed by respondent no. 1 in the High Court on September 21, 1967.

The 1st respondent again failed to deposit the amount even by the extended date. As the first respondent did not comply with the direction of the High Court, the trial court on 2nd March, 1966 directed the Tahsildar to hand over actual possession of the suit property to the appellants. Against this order of the trial court, the 1st respondent did not prefer any appeal.

On 13th July, 1965 the appellants prayed for an order for delivery of actual possession of the suit properties. The 1st respondent contested the application on the ground that he had made an application under the Mysore Land Reforms Act, 1961 before the Land Tribunal and had obtained an order of stay. On 8th August, 1967 the Executing Court rejected the objection of the 1st respondent and directed the Tahsildar to deliver actual possession to the appellants. The respondent preferred an appeal being Misc. Appeal 'No. 34 of 1967 in the court of Civil Judge, Hubli, which was dismissed on 31st August, 1967 as being not maintainable under the provisions of section 47 of Civil Procedure Code as the order merely implemented an earlier order dated 2nd March, 1966. The 1st respondent thereafter preferred Second Appeal No. 78 of 1966 before the High Court of Mysore. The two Second Appeals Nos. 86 of 1965 and 78 of 1967 were disposed of by a common judgment of 9th February, 1968. The High Court allowed both the appeals and set aside the orders of the courts below. On 21st November, 1968 the appellants were granted Special Leave to Appeal and thus the two appeals have come before us. During the pendency of the two appeals before this Court it is stated that the Land Tribunal dismissed R.C. 37/66 filed by the 1st respondent seeking declaration that he is a tenant-in-holding and that he is not a tenant. The 1st respondent does not dispute the fact but claims that even if it is so, the appeal will have to be remanded to the High Court.