BAKULABAI Vs. SHIDARAYA

JUDGEMENT

(1.) The petitioner filed an application for resumption of the land RS. (block) No.26 situated at Zalki village, and an order of resumption was passed by the learned trial Judge in her favour. Accordingly a certificate was issued as provided under S.14(1) of the Mvsore Land Reforms Act, on the 10th of December, 1970. Thereafter an application was filed on the 17th of December, 1970 under S.14(5) of the Act, for delevery of possession, On that application the learned Munsiff passed the following order:

(2.) In order to appreciate the respective contentions raised by the parties in this revision petition, it would be necessary to refer briefly to certain provisions of the Mysore Land Reforms Act. S.14(1) of the Act " entitles the landlord to make an application for resumption of land from the tenants. On the application being filed, the Court is required to direct an enquiry and "determine the land or lands" which the landlord will be entitled to resume, and shall issue a certificate to the landlord to the effect that the land or lands specified in such certificate has been reserved for resumption and thereupon the right to resume possession shall be exercisable only in respect of the lands specified in such certificate and shall not extend to any other land. Sub-sec. (5) of S.14 of the Act provides that where a certificate is issued in respect of any land under sub-sec. (1) in the case of tenancies existing on the appointed day, the landlord shall make an application to the Court for possession of such lands within 12 months from the date of issue of the certificate, but the tenants shall not be dispossessed, before the 31st March of the calendar year succeeding the calendar year in which the application for possession is made. S.116 of the Act states that every order of the Court shall be executed as if it were a decree of a Civil Court; provided that an order for possession or restoring the possession or use of any land shall be executed by the Deputy Commissioner in the same manner as an order made by a Revenue Officer under the Mysore Land Revenue Act, 1964.

(3.) These provisions clearly establish that under sub-sec.(1) of S.14 of the Act, a certificate will be issued to the landlord determining the right of the landlord to resume possession. When such certificate is issued determining the claim of the landlord to resume possession, he has to make an application for delivery of possession of the property. Though sub-section (5) of S.14 of the Act does not in words say that an order of possession has to follow, that is what is implicit in sub-sec. (5) of S.14 of the Act. Therefore, when there is a certificate for resumption of the land and when an application is filed for possession under S.14(5) of the Act, in accordance with the provisions of that section, the Court has to pass an order for delivery of possession. This is the meaning of S.14(5) of the Act. In S.16 of the Act, it is stated that every order of the Court shall be executed as if it were a decree of a Civil Court, and that an order for possession or restoring the possession or use of any land shall be executed by the Deputy Commissioner. Therefore, there must be an executable order passed by the Court, which can be executed and possession obtained by the tenant. If it is an order for delivery of possession, then the Deputy Commissioner has to execute the order in the same manner as an order made by a Revenue Officer under the Mys. Land Revenue Act, 1964. Therefore, the condition precedent for the exercise of jurisdiction by the Deputy Commissioner to deliver possession is the existence of the order for possession, and therefore, the Court is required after the issue of a certificate to pass an order for delivery of possession under sub-sec. (5) of S.14 of the Act. As already stated that when a landlord's claim for resumption of the land is certified by Court as required under S.14(1) of the Act, an order for possession has to follow, under S.14(5) of the Act. There are certain restrictions imposed as regards the time when delivery of possession is to be made. It is therefore, clear that a judicial order is contemplated under S.14(5) of the Act, directing delivery of possession, and so it is necessary for the Court to hear the tenant in the matter. The learned appellate Judge was therefore, in my view, fully justified in holding that in the present case it was necessary for the trial Court to have issued a notice to the tenant, heard him and then pass an order for delivery of possession and transmit the papers to the Deputy Commissioner for delivery of possession as provided under the proviso to S.116 of the Act. In my view, the order passed by the trial Court was an order both for delivery of possession as also transmitting the papers to the Deputy Commissioner. So the appellate Court was justified in setting aside the order of the learned Munsiff and remitting back the proceedings to the trial Court for a determination as directed in the order.