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.