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Case Number

Letters Patent Appeal No. 37 of 1951

Attorney(S)

R.B Kotwal, for the Appellant.
G.P Murdeshwar, for the Respondent.

Judges

Mr. Gajendragadkar
Mr. Chainani, JJ.

Acts

provisions of ss. 70 and 89 of the Bombay Tenancy and Agricultural Lands Act, 1948.
provisions of s. 14 of the Tenancy Act, No. LXVII of 1948.
provisions of s. 89(2) of the Tenancy Act of 1948.
provisions of the Tenancy Act, LXVII of 1948,
ss. 70 and 85 of the Tenancy Act of 1948
provisions of s. 29 of the Tenancy Act
Section 89 of the Tenancy Act
Tenancy Act of 1948, Act
Tenancy Act of 1948
Tenancy Act of 1939

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Smart Summary

Extractive Summary of the Opinion (Gajendragadkar, J.)

Factual and Procedural Background

This appeal arises in execution proceedings and concerns the interplay between a pre-existing landlord's right to evict and subsequent regional application of tenancy legislation.

Key chronological facts from the opinion:

Civil Suit No. 47 of 1946 was instituted by the landlord on October 16, 1946, seeking possession and mesne profits on the basis that the tenant's tenancy had been determined on April 15, 1942 or 1943.
The Tenancy Act of 1939 was extended to Ahmednagar on November 8, 1946.
On July 31, 1947, the trial Court decreed the landlord's claim: possession was awarded to the landlord, past mesne profits of Rs. 140 were decreed, and an inquiry into future mesne profits was ordered under Order XX, rule 12.
The tenant appealed; the appeal was filed before the Tenancy Act of 1948 (Act No. LXVII of 1948) came into operation. The appeal failed and the decree was confirmed on July 19, 1950.
After the appellate decision, on August 2, 1950, the tenant applied to the Mamlatdar for a declaration that he was a protected tenant; the Mamlatdar granted this declaration on November 1, 1950, and an entry was made in the Record of Rights.
On November 23, 1950, the decree-holder filed the present Darkhast seeking execution to recover possession.
The judgment-debtor (tenant) resisted the execution on two principal grounds: (a) that the Civil Court lacked jurisdiction to execute because jurisdiction over such matters lay with the Mamlatdar under the Tenancy Act, and (b) that the Mamlatdar's declaration of protected tenancy prevented execution.
The executing Court rejected the judgment-debtor's pleas and ordered execution to proceed under Order XXI, rule 35 of the Code of Civil Procedure; an appeal against that order was summarily dismissed by Bavdekar J.
The present appeal challenges the dismissal of the judgment-debtor's execution-related appeal.

Legal Issues Presented

Whether a Civil Court can execute an eviction decree and order possession where the suit was instituted before the regional application of the Tenancy legislation and a decree in favour of the landlord already exists.
Whether a subsequent declaration by the Mamlatdar that the judgment-debtor is a "protected tenant" (made after the decree and after appellate confirmation) prevents or bars execution of the existing decree.
Whether provisions of the Tenancy Act (specifically ss. 14 and 29) can be invoked to restrain execution of a decree that enforces rights and proceedings which allegedly vested before the commencement of the Act.

Arguments of the Parties

Judgment-debtor's (Appellant's) Arguments — as presented in the opinion

The Civil Court no longer had jurisdiction to execute the eviction decree because, under the Tenancy Act, jurisdiction over such matters was vested exclusively in the Mamlatdar (reference to ss. 70 and 85 of the Tenancy Act of 1948).
The correct remedy for the decree-holder was to move the Mamlatdar for enforcement, not the Civil Court.
The Mamlatdar had declared the judgment-debtor a protected tenant; that declaration meant the tenancy could not validly be determined save in accordance with s. 14 of the Tenancy Act, and s. 29 (procedure for taking possession) applied; therefore execution should not proceed.

The opinion does not set out a detailed, separate catalogue of the decree-holder's counsel arguments; the decree-holder filed the Darkhast to recover possession and relied on the persisting validity of the decree and prior proceedings to support execution.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dhondi Tukaram v. Dadoo Piraji	The opinion of the Court in that case considered the effect of ss. 70 and 89 of the Bombay Tenancy and Agricultural Lands Act, 1948 and held that under s. 89(2)(b)(ii) only pending proceedings in respect of vested rights are saved; if a suit to enforce a vested right is filed after commencement of the Act, the Act applies.	The present Court relied on the principle from that case to draw a temporal distinction: because the landlord's suit and decree predated application of the Act, the present legal proceedings are saved under s. 89(2); by contrast, in Dhondi Tukaram the protection did not extend to suits instituted after the Act's commencement.
Rajesab wallad Imamsab Bagwan v. Harishchandra Honaar	Consideration of the effect of s. 89(2) of the Tenancy Act and its saving of certain rights and proceedings.	The opinion notes that Mr. Justice Shah took the same view regarding the effect of s. 89(2); the Court treats this decision as consonant with and supportive of its conclusion that the landlord's rights and proceedings were saved.

Court's Reasoning and Analysis

The Court's analysis proceeds from chronology and statutory construction, applied strictly to the facts as pleaded and adjudicated in the earlier suit:

Chronology and statutory context:
- The suit was instituted in 1946, prior to the extension or operative effect of later tenancy legislation in the area that would confer jurisdiction on the Mamlatdar (ss. 70 and 85 of the Tenancy Act of 1948).
- Although the Tenancy Act of 1948 confers exclusive jurisdiction on the Mamlatdar to decide matters mentioned in s. 70, the Court examined whether that statutory exclusion could affect rights and proceedings already existing when the Act came into force.
Application of s. 89(2) — statutory saving:
- The Court quoted and applied s. 89(2) of the Tenancy Act, which provides (in the words set out in the opinion) that nothing in the Act shall, save as expressly provided, affect rights already acquired or legal proceedings in respect of such rights and that such proceedings shall be continued "as if this Act was not passed."
- The Court held that the landlord had a pre-existing right to determine the tenancy which was validly exercised before the institution of the 1946 suit, and the decree recognised that right by treating the defendant as a trespasser and awarding past mesne profits and an inquiry into future mesne profits.
Distinguishing the argument that only a "decretal" right is being enforced:
- Mr. Kotwal contended that the right now being enforced is not the original right to terminate the tenancy but the decretal right that accrued on passing of the decree; thus, he argued, the Tenancy Act could affect execution.
- The Court rejected that distinction: it held that the execution enforces the original right to evict a trespasser (a right asserted in the original suit and recognised by the decree) and that both the right and the legal proceedings instituted to enforce it are saved by s. 89(2).
Effect of the Mamlatdar's declaration:
- Because the landlord-tenant relationship had already been judicially determined and the decree treated the defendant as a trespasser, the Mamlatdar had no authority to declare the defendant a protected tenant so as to frustrate the decree.
- The Mamlatdar's declaration was therefore outside his jurisdiction and could not affect enforcement of the landlord's decree.
Reliance on precedents:
- The Court referred to Dhondi Tukaram v. Dadoo Piraji (where the Court had interpreted s. 89(2) as protecting only pending proceedings and not suits instituted after the Act) to support the temporal limitation on the Act's displacing effect.
- The Court noted a similar view taken by Mr. Justice Shah in Rajesab v. Harishchandra, aligning with the Court's interpretation of s. 89(2).
Consequence for other statutory sections:
- Because the Court concluded that the landlord's right and the proceedings enforcing it were saved by s. 89(2), it found it unnecessary to decide how ss. 14 or 29 of the Tenancy Act would operate in cases where those sections otherwise apply.

Holding and Implications

Holding:

DISMISSED. The appeal fails and is dismissed with costs. The executing Court's order permitting execution to proceed (and the summary dismissal of the earlier execution-appeal) is upheld.

Implications and direct effects:

The Court held that s. 89(2) of the Tenancy Act preserves the landlord's pre-existing right to evict and the legal proceedings instituted to enforce that right; therefore the Tenancy Act's provisions (including ss. 14 and 29 where invoked) cannot be pleaded to resist enforcement of a right and legal proceedings that vested and were instituted before the Act's commencement.
As a direct consequence for the parties, the decree-holder's right to execution and to take possession (as recognised by the prior decree) was enforceable in the Civil Court, and the Mamlatdar's post-decree declaration of protected tenancy could not defeat that execution because it was outside the Mamlatdar's jurisdiction in the circumstances presented.
The opinion does not purport to set out any broader new rule beyond its application of s. 89(2) to the facts at hand; it treats prior decisions addressing the same provision as consistent with its conclusion.

Appeal dismissed.

Delivering Judge: Gajendragadkar, J.

This summary is confined to information contained in the provided opinion and does not add or infer facts beyond that text.

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Prithviraj Chunilal Sand (Original Judgment-Debtor), v. Hari Ganesh Parkhe (Original Decree-Holder), .

Gajendragadkar, J.:—

This appeal arises in execution proceedings and it raises a very short question under the Tenancy Act.

In Civil Suit No. 47 of 1946 a decree for eviction was passed in favour of the landlord. The landlord had alleged that the tenant was in possession of the land for some years before the institution of this suit and that his tenancy had been duly determined on April 15, 1942 or 1943. He therefore claimed possession of the property and mesne profits for three years before the date of suit and future mesne profits. The Civil Suit was instituted on October 16, 1946. Earlier Tenancy Act of 1939 was extended to Ahmednagar on November 8, 1946. On July 31, 1947, the trial Court decreed the landlord's claim. The landlord was authorised to take possession of the land from the defendant and he was given a decree for Rs. 140 for past mesne profits and an order for inquiry into the future mesne profits under O. XX, r. 12 was also made. Against this decree the tenant preferred an appeal. The appeal was filed before the new Tenancy Act of 1948, Act No. LXVII of 1948, came into operation. The appeal failed and the decree of the trial Court was confirmed on July 19, 1950. It would appear that subsequent to the appeal Court's decision the tenant applied to the Mamlatdar on August 2, 1950, for a declaration that he was a protected tenant; and the Mamlatdar gave him that declaration on November 1, 1950. An entry was accordingly made in the Record of Rights showing the tenant to be the protected tenant. On November 23, 1950, the decree-holder filed the present Darkhast claiming to recover possession of the land from the judgment-debtor. His claim was met on two grounds. That the Civil Court had no jurisdiction to execute the decree and that the only remedy available to the decree-holder was to move the Mamlatdar in that behalf. It was also urged that the decree could not be executed in view of the declaration given by the Mamlatdar that the judgment-debtor was a protected tenant. The executing Court has rejected both the pleas and has ordered execution to proceed, under O. XXI r. 35 of the Code of Civil Procedure. The judgment-debtor preferred an appeal against this order; but his appeal was summarily dismissed by Bavdekar J. It is this order which Mr. Kotwal seeks to challenge before us on behalf of the judgment-debtor.

From the dates which I have just mentioned, it would be apparent that the suit was filed before the earlier Tenancy Act of 1939 was made applicable to Ahmednagar where the suit was tried. It is true that under the provisions of the Tenancy Act, LXVII of 1948, the jurisdiction of the Civil Court has been excluded as regards matters mentioned in s. 70 of the Act. The effect of ss. 70 and 85 of the Tenancy Act of 1948 is to confer exclusive jurisdiction on the Mamlatdar to determine the matters mentioned in s. 70 and to exclude the jurisdiction of the Civil Courts to determine these points. The position under the earlier Act of 1939 was, however, substantially different in regard to the jurisdiction of the Civil Courts. Mr. Kotwal has not seriously disputed before us that since the decree was passed in a suit which was filed even before the earlier Act of 1939 was made applicable to the area, it could not be said that the Civil Court had no jurisdiction to execute this decree. Mr. Kotwal, however, has strenuously contended before us that even if the Civil Court is competent to execute the decree, the Civil Court will have to take judicial notice of the fact that the Mamlatdar has given a declaration to the judgment-debtor about his status as a protected tenant and the effect of this declaration must be that the Civil Court would have to stay its hands and not direct possession of the property to be delivered to the decree-holder. In support of this contention Mr. Kotwal has relied upon the provisions of s. 14 of the Tenancy Act, No. LXVII of 1948. This section provides for the manner in which and the circumstances under which the tenancy can be determined and the provisions of this section apply notwithstanding any agreement, usage, decree or order of a Court of law. According to Mr. Kotwal despite the decree which has been passed in favour of the decree-holder it is only in pursuance of the provisions of s. 14 that the tenancy of the judgment-debtor can validly be determined and unless his tenancy is thus determined it would not be open to a Civil Court to execute the decree and evict the tenant. In support of this argument Mr. Kotwal has also referred to the provisions of s. 29 of the Tenancy Act which lays down the procedure for taking possession of agricultural lands. In our opinion the execution of the decree against the judgment-debtor in the present proceedings cannot be resisted on these pleas. Section 89 of the Tenancy Act gives an answer to the pleas raised by the judgment-debtor. Section 89(2) lays down that”

“nothing in this Act shall save as expressly provided in this Act, affect or be deemed to affect.

(i) any right, title, interest, obligation or liability already acquired, accrued, or incurred before the commencement of this Act, or

(ii) any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act.

and any such proceedings shall be continued and disposed of as if this Act was not passed.”

It would be clear that the provisions of sub-s. (2) are intended to protect certain rights. They are also intended to protect legal proceedings in respect of those rights. In the present case there can be no doubt that the landlord had the right to determine the tenancy in favour of his tenant and that the said right had been validly exercised by him before he instituted his suit in 1946 against his tenant. The decree which was passed in his favour gave effect to this right and by directing the defendant to pay past mesne profits the decree recognised the fact that the possession of the defendant was that of a trespasser after the tenancy in his favour had been validly determined by the plaintiff. In other words the defendant was sued as a trespasser and a decree was passed against him on that basis. That explains why a decree for past mesne profits was passed against him and an inquiry into future mesne profits was ordered to be made. In our opinion under the provisions of s. 89(2) this right which had vested in the landlord and which has been recognised by a decree passed by a Civil Court of competent jurisdiction has been expressly saved and any of the provisions contained in the Tenancy Act of 1948 cannot be pleaded against the enforcement of this right. It is perfectly true that it is only the legal proceedings which are already instituted that receive the protection of this clause. In Dhondi Tukaram v. Dadoo Piraji,(3) myself and Mr. Justice Vyas had occasion to consider the effect of the provisions of ss. 70 and 89 of the Bombay Tenancy and Agricultural Lands Act, 1948. We have held in this case that under s. 89(2)(b)(ii) it is only pending proceedings in respect of vested rights that are saved from the operation of the Act and that even in respect of vested rights which are saved, if a suit to enforce them is filed subsequent to the commencement of the Act, the provisions of the Act will apply. But in the present case, there can be no doubt that the legal proceeding to enforce his right was instituted by the landlord when he filed the present suit. All further proceedings between the parties such as an appeal or an execution application are continuations of the suit and arise from the suit. Therefore in our opinion, there can be no doubt that just as the vested right of the plaintiff to evict the defendant as a trespasser has been saved, so also the legal proceedings instituted by him in 1946 are saved, under the provisions of s. 89(2).

Mr. Kotwal, however, contends that the right which the landlord seeks to enforce is not his original right to terminate the tenancy of the defendant and to evict him, but the right to execute the decree which has accrued to him on the passing of the decree. Mr. Kotwal ingeniously contends that the original right of terminating the tenancy and of evicting the defendant thereafter is now merged in the decree and it is the decretal right which is being enforced and this decretal right is the right to execute the decree. In our opinion this is not a sound argument. The right which is sought to be enforced in the present proceedings is the right to evict a trespasser. That right was asserted in the suit and was recognised by the decree and is now being enforced in the execution of that decree. And it is exactly this kind of right and legal proceeding instituted to enforce it that are saved by the provisions of s. 89(2) of the Tenancy Act of 1948. If this right and the proceeding in which it is enforced are protected under sub-s. (2) of s. 89 no contention can be raised against the enforcement of this right by reference to any of the provisions of the Tenancy Act. Nothing contained in this Act will affect the said right and the legal proceedings to enforce that right. If that be the true position, the declaration given by the Mamlatdar purporting to exercise jurisdiction under s. 70 can create no difficulty in the way of the decree-holder; it must be remembered that the relationship of landlord and tenant between the plaintiff and the defendant has been already determined and a decree has been passed against the defendant on the basis that he was a trespasser. In such a case the Mamlatdar would have no authority to hold that the defendant is a protected tenant. The declaration granted by the Mamlatdar is therefore outside his jurisdiction and cannot affect the plaintiff's right to evict the defendant.

A similar question was raised before Mr. Justice Shah in Rajesab wallad Imamsab Bagwan v. Harishchandra Honaar(4) and it appears that Mr. Justice Shah has taken the same view about the effect of the provisions of s. 89(2) as we have done. Since we hold that the right of the decree-holder and the legal proceeding in which that right is enforced are saved under the provisions of s. 89(2), it is unnecessary to consider what the effect of s. 14 or of s. 29 would be in cases where the said sections apply.

The result is, the appeal fails and must be dismissed with costs.