Document Fragment View

Matching Fragments

5. This brings us to Sub-section (2) which provides for a summary enquiry and the Sub Divisional Officer is enjoined, after such enquiry, to order that the applicant be reinstated in such holding or part thereof and that any other person in possession of it be ejected therefrom. It is clear beyond doubt that what the Sub-Divisional Officer has to do is to order the reinstatement of the person applying and at the same time, to order ejectment of the person who may be in possession of the holding or part thereof and who was presumably responsible for the dispossession of the applicant. Sub-section (3) is immaterial for present purposes. But Sub-section (4) is, in our opinion, very important. It lays down that an order for re-instatement shall be enforced as nearly as may be in the same manner as if it were a decree for ejectment but regard shall not be had to the time, if any prescribed for the enforcement of such decree. Now it is well known that the procedure for enforcement of a decree for ejectment is usually the same as is provided in Order XXI Rule 35 Sub-rule 1) for decrees for delivery of any immovable property i. e. that the person ejected is actually dispossessed from the property and the person in whose favour the decree is p ssed is put in actual possession of the property. Sub-rule (2) of Rule 35 on which learned counsel for Sedhu seems to rely, has, in our opinion, nothing to do with enforcement of a decree for ejectment. It applies only to cases of decrees for joint possession which are different from decrees for ejectment. We do not think it necessary in this connection to refer to the provisions of the various Tenancy Acts in force in the various Covenanting States. It is enough for our purposes to refer to Section 185 of the Rajasthan Tenancy Act as illustrative of what we have said. We know that the Rajasthan Tenancy Act, 1955 does not in fact apply to the present case, for it came into force on the 15th October 1955. But we have no doubt that the Tenancy Acts of former Covenanting States had similar provisions in that respect. Section 185 of the Rajasthan Tenancy Act provides the mode for execution of decrees for ejectment, namely that they shall be enforced in accordance with the provisions of the Code of Civil Procedure relating to the execution of decrees for delivery of immovable property. Therefore when Sub-section (4) of Section 7 of the Ordinance provides that an order for re-instaternent shall be enforced as nearly as may be in the same manner as if it were a decree for ejectment, there is clear direction that the person re-instated shall be put back in possession and the person, who has dispossessed him of the land, shall in his turn be dispossessed. This can be done at any time and the restriction which the revenue laws placed as to the time for execution of decrees for ejectment, does not apply to a case under Sub-section (4). Thus, it is clear on a reading of Sub-sections (1), (2) and (4) of Section 7 that though a tenant may have a right to apply under Sub-section (1), the relief contemplated under sub s. (2) is that the person applying under sub s. (1) is put back in actual possession and the person who has dispossessed him is actually ejected. This being the relief contemplated under Section 7, it is to our rnind absolutely clear that this section does not contemplate cases where one co-tenant is ejected by another co-tenant. In such a case, there can be no relief as contemplated by Section 7, for the applying co-tenant cannot be put back in possession and the co-tenant who has dis-possessed him cannot be ejected from the holding or any part thereof. It follows, therefore, that Section 7 applies to those cases where a tenant is in exclusive possession of certain holding or certain part of it and is ejected from that part If the Sub-Divisional Officer can put him back in exclusive possession o£ the holding or part thereof from which he has been ejected, Section 7 will apply and come to the help of such a tenant. But if the co-tenant who has been dispossessed and the co-tenant who has dispossessed him and has, let us say, usurped the possession of the entire holding are joint tenants of every part of the holding, it is not possible for the Sub Divisional Officer to eject a co-tenant who has dispossessed other co-tenant from any part of it because both are entitled to possession over every part o£ the holding until their holding is partitioned. Therefore, howsoever we look at the matter, Sub-sections (2) and (4) of Section 7 make it absolutely clear that relief under Section 7 cannot be given to a co-tenant ejected by another co-tenant from the holding or part thereof, where both are joint tenants with a right to possession over every part of the holding.