Bombay High Court
Dayaram Bhaktibhai And Anr. vs Maganlal Sunderji And Anr. on 21 September, 1955
Equivalent citations: AIR1956BOM172, AIR 1956 BOMBAY 172
JUDGMENT
1. The plaintiffs filed suit No. 111 of 1946-47 in the Court of the Civil Judge, J.D. at Kathor in the former Baroda State against the defendants for a decree for possession of certain agricultural land. A consent decree was passed in the suit on 20-7-1948. The decree provided that the defendant Maganlal Sunderji do deliver possession of the suit land to the plaintiffs on 8-4-1951.
It further provided that if the defendant Maganlal Sunderji failed to deliver possession to the plaintiffs, the plaintiffs may take possession through Court by filing an application for execution. It was then provided in the decree that defendant Maganlal Sunderji shall take the produce and shall give certain specified amounts to the plaintiffs.
It was also provided that if the defendant Ma ganlal Sunderji failed to make the payment with in the specified time, the plaintiffs were entitled to recover the same from the person and every kind of property of the defendant Maganlal Sun derjee.
2. The State of Baroda merged with the Indian Union on 1-8-1949. The Bombay Tenancy and Agricultural Lands Act of 1948 was made applicable to the area in which the land in dispute is situated on. 30-7-1949. The judgment-debtors having failed to deliver possession of the property on 8-4-1951 the plaintiffs filed darkhast No. 20 of 1951 in the Court of the Civil Judge, Junior Division, at Kathor for executing the decree.
The darkhast was resisted by the first defendant Maganlal Sunderjee. The first defendant contended that the darkhast was not maintainable in view of the provisions of the Bombay Agricultural Debtors Relief Act and the Bombay Tenancy and Agricultural Lands Act. 1948. The learned Trial Judge held that the plaintiffs had not applied for any money due and, therefore, the provisions of the B.A.D.R. Act did not come in the way of execution.
He further held that the B.T. and A.L. Act of 1948 did not prevent execution of a decree which was passed before the commencement of B.T. and A.L Act of 1948 and in support of that view he relied upon Section 89(2)(b)(i) of that Act. The learned trial Judge accordingly passed an order directing 'the execution proceedings to proceed according to law'.
3. An appeal was preferred to the District Court at Surat. In appeal the learned Assistant Judge who heard the appeal reversed the order passed by the trial Court and dismissed the darkhast with costs. Against the order of the District Court dismissing the darkhast the plaintiffs have come to this Court in second appeal.
4. This Court has now taken the view that the provisions of the Bombay Tenancy and Agricultural Lands Act of 1948 are not retrospective; and if before the date on which that Act was made applicable a suit had been filed in ejectment for termination of the tenancy, by reason of the provisions of Section 89 of that Act the suit may continue in the Civil Court; and if a decree has been obtained in a suit that decree may be executed according to its tenor notwithstanding the provisions of the B.T. and A.L. Act of 1948.
In Rajesab Imamsab v. Harischandra, 56 Bom LB 638 (A), I had occasion to consider whether a decree passed in a suit filed in 1946 for possession of certain property could be executed after the B.T. and A.L. Act of 1946 was made applicable to the area in which the land was situate; and it was held by me in that case that the Civil Court was competent to execute a decree for possession of agricultural lands which were originally in the possession of the defendant as a tenant of the plaintiff, the tenancy having been determined prior to the date on which the B.T. and A.L. Act of 1948 was enacted, and the suit to enforce the right to obtain possession also having been instituted prior to that date.
That view has been upheld by a Division Bench of this Court in -- Prithviraj Chunilal v. Hari Ganesh', 56 Bom LR 1076 (B). It was held in that case that when the decree under execution was passed in the suit which was filed before the Bombay Tenancy Act of 1939. was made applicable to the area where the land was situated, the Civil Court had jurisdiction, to execute the decree, in view of the above two decision's, the objections to the execution of the decree which appealed to the learned Appellate Judge cannot be sustained.
5. Mr. Gokhale who appears on behalf of the first judgment-debtor has, however, contended that in certain proceedings which were taken by the plaintiffs after the Bombay Tenancy Act was made applicable to the area in which the land in dispute is situate, the plaintiffs themselves regarded the defendants as their tenants and claimed to recover rent on that footing.
It is undoubtedly true that the plaintiffs prayed for possession of the land by proceeding in the Mamlatdar's Court under Section 29, Sub-section (2) of the Bombay Tenancy and Agricultural Lands Act of 1948 and the first defendants applied for fixation of the standard rent tinder Section 12 of that Act.
In my judgment the mere Institution of proceedings in a Court constituted under the B.T. and A.L. Act of 1948 for possession does not affect the right of the plaintiffs to proceed in a proper Court to execute the decree; and even if the plaintiffs resisted the application filed by the first defendant for fixation of the standard rent, on the merits the plaintiffs' action in resisting the application for fixation of standard rent cannot raise an estoppel against the plaintiffs in the Civil Court in executing the decree.
6. Mr. Gokhale then contended that Section 4 of the B.T. and A.L. Act of 1948 raises a presumption that every person who is lawfully cultivating land belonging to another person and who does not belong to any of the three specified classes of person mentioned in that section, is to be deemed to be r tenant of the land, and that the defendants were entitled to continue in possession as a protected tenant, unless the tenancy was terminated in the manner provided by that Act.
In my view there is no substance in that contention also. Section 89, Sub-section (2) Clause (b) item (i) of the B.T. find A.L. Act of 1948, saves from the operation of that Act, except as expressly provided in that Act, any right, title or interest obligation, or liability already acquired, accrued or incurred before the commencement of the Act.
The liability of the defendants to deliver pos-session and the right of the plaintiffs to enforce execution of the decree evidently arose before the date on which the Act came into operation, and the liability incurred by the defendants and the right which accrued in favour of the defendants and the right which accrued in favour of the plaintiffs were not affected by anything contained in the Act. The presumption arising under Section 4 cannot, therefore, avail the defendants.
In that view of the case the appeal will be allowed, the order passed by the learned Assistant Judge set aside and the order passed by the learned trial Judge restored with costs in this Court and in the District Court.
7. Appeal allowed.