KAZINAJMUNISSA BEGUM Vs. YUSUF KHAN

JUDGEMENT

(1.) Leave granted. Heard learned counsel for the appellant. None appears for the respondents.

(2.) The appellant as plaintiff instituted suit No. 32 of 1964 in the Court of Civil Judge (Senior Division), Aurangabad for declaration of title, possession and mesne profits of the suit property. The respondents 1 and 2 as defendants 1 and 2 resisted the suit mainly on the ground that they were inducted as tenants by Sirajuddin who allegedly acquired title to the suit property by a deed of gift executed by Hasmuddin in favour of his wife Waliunnissa from whom it was inherited by Sirajuddin. The trial court decreed the suit holding that Sirajuddin had no right or title and the defendants were trespassers. In the appeal therefrom by the defendants 1 and 2 before a Division Bench of the Bombay High Court the same plea of tenancy was raised and rejected; and it was held that the gift of the suit property by Hasmuddin in favour of Waliunnissa was not proved. Their application for leave to appeal therefrom to the Supreme Court was also rejected.

(3.) The decree-holder moved the Execution petition being Special Darkhast No. 20 of 1967 for delivery of possession. The respondent Nos. 1 and 2 (who were judgment debtors Nos. 1 and 2) objected to the execution on the ground that they were tenants and could not, therefore, be dispossessed in execution of the decree of the Civil Court. The Executing Court rejected this objection and directed the Darkhast to proceed. The defendants Civil Appeal No. 264 of 1977 therefrom was also rejected by the High Court. Thereafter when the aforesaid Darkhast No. 20 of 1967 was set down for proceeding further, once again the same judgment debtors Nos. 1 and 2 raised the plea of tenancy; and this time the Executing Court raised an issue of tenancy and referred the same to the Tenancy Court for determination. The appellant moved the High Court in Civil Revision Application No. 270 of 1983 and the High Court observed, inter alia, that the Executing Court was not justified in raising an issue of tenancy, as such an issue did not arise at all the Court having found on evidence that Waliunnissa had no title to the suit property and her son Sirajuddin could not have inherited it as an heir of Waliunnissa, and as such there could be no question of creation of tenancy interest by those who themselves had no title; that the judgment debtors earlier objection to execution on the ground of their claim of tenancy was also rejected; and it was not open to the judgment debtors Nos. 1 and 2 to once again raise an issue of tenancy before the Executing Court which ought to have rejected the same contention. Even so the High Court having noted that judgment debtor No. 2 had already filed an independent proceeding under the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as the 'Tenancy Act') for declaration of his tenancy rights in the suit land observed that if that was so, then the competent authority under the Tenancy Act would have to decide the issue "on its own merits and in accordance with law irrespective of and regardless of all observations, if any touching upon such a claim of tenancy in the civil proceedings between the parties, viz. Special Suit No. 32 of 1964 and Appeal No. 824 of 1967". The High Court also observed that the question of tenancy was not directly in issue between the parties in the aforesaid civil proceedings and the judgment debtor No. 2 was not, therefore, debarred from instituting proceedings under the Tenancy Act before the competent authority. The High Court further observed that as the execution proceedings had been pending since the year 1967 it was expected that the competent authority would decide the proceedings expeditiously. Accordingly the High Court allowed the revision and set aside the impugned order dated April 28, 1983 passed by the Executing Court in the said Special Darkhast No. 20 of 1967 to the extent it referred issue No. 1 to the Tenancy Tahsildar or Mamlatdar under Section 99(a) of the Tenancy Act and the Executing Court was directed to proceed further with the Special Darkhast No. 20 of 1967 in the light of those observations.