GURAWWA Vs. DILAWAR HUSSAIN SHILEDAR

JUDGEMENT

(1.) This second appeal arises out of OS.131/63 filed by the appellants in the Court of the Addl Munsiff, Gokak. The suit is for a declaration that the decree passed in OS.111/51 in favour of respondents 4 to 7 on 23-9-55 is not binding on them, that the same is null and void and for a perpetual imunction restraining respondents 1 to 3 from interfering with the possession of the plaintiffs in respect of the suit lands. Both the lower Courts dismissed the suit.

(2.) According to the case of the plaintiffs, the first plaintiff is the protected tenant of Survey No.17 and the second plaintiff is the protected tenant of Sy.Np.68 both situated within the limits of Gokak and they are in possession cultivating the lands as tenants since 30 to 40 years. Defendant-respondents 4 to 7 had filed a suit for partition, ROS.111/51 against the ether co-sharers, defendants-respondents 8 to 14. The deceased husband of the first plaintiff as well as the second plaintiff were added as parties to the said suit as defendants 8 & 9 respectively. The present plaintiffs believed that they would not be evicted from the suit lands, but the plaintiffs in that suit practised fraud on the Court and obtained a preliminary decree for actual possession of their 1/3 share. In execution of that decree the Tahsildar Gokak, is purported to have handed over possession of half the suit survey numbers on 29-10-1963 to defendants 1 and 2 jointly since defendants 1 and 2 claimed to be the assignees of the decree. Defendants 2, 3 and 5 filed a written statement admitting that the husband of the first plaintiff and the second plaintiff are parties to OS.111/51 and contended that since there was a final adjudication regarding their possession in respect of the suit lands by a competent Court the, suit is barred by res judicata. The planitiffs are parties even in the execution proppedings and the defendants have been awarded actual possession of the suit lands on 29-10-63, that the suit lands have been given Sy.No.68/1, measuring 4 acres 39 guntas, and Sy.No.17/2, measuring 1 acre 30 guntas and mutation entries have been made in respect of these lands in their names. They also, denied that the plaintiffs were the tenants of the suit lands. Even if they had got false entries made in the revenue records, the same would not be binding on the defendants. They also pleaded that defendants 1, 7 and 14 and deceased Dadibi had not leased their 2/3 share to the plaintiffs. They also denied that any assurance had been given to the plaintiffs that they will not be evicted from the suit lands in OS.111/51, Defendants 1, 3, 6 and 14 adopted the written statement of defendants 2, 4 and 5. The seventh defendant supported the plaintiffs' case. She was one of the five plaintiffs in OS.111/51. All the five plaintiffs together were awarded 1/3 share in that suit. Defendant 8 alsq supported the plaintiffs' case. Defendants 8, 12 and 13 adopted the written statement of defendant 8. Defendants 10 and 11 remained ex parte. Defendants 1 to 3 are respective husbands of defendants 4 to 6 whq are the daughters of deceased Dadibi.

(3.) The contention of the plaintiffs is that on the date of the suit OS. 111/51 the Bombay Tenancy and Agricultural Lands Act was in force and the Civil Court had no jurisdiction to pass the decree and that an order of eviction has to be made only under S.29(2) of the BT and AL Act by the prescribed authority under that Act. It is therefore null and void and withqut jurisdiction, and that any proceedings in furtherance of that decree arc also null and void. Defendants 1 to 4 pleaded in answer to this contention that the plaintiffs and their predecessors-in-title, did not contend in OS.111/51 that they had any tenancy rights in respect of the suit lands under the BT and AL Act 1948. No issues regarding their tenancy were sought by the plaintiffs in that suit, no decision was given in their favour and the decree and judgment in OS.111/51 is binding on the plaintiffs.