AKKATAI Vs. BABURAO SATTAPPA ANGOL

JUDGEMENT

(1.) the original first respondent-baburao sattappa angol must have fired the day he let out his house bearing c.t.s. No. 524/a situated at kulkarni galli, belgaum, in favour of balappa kadahatti somewhere in 1969. He was in service then and hoping that he would be able to get back the house by the time of his retirement, he appears to have let out the house. Balappa, when he was living in this house, died in 1976 leaving behind him his wife, the present second respondent, 2 sons, respondents 3 and 4, and an unmarried daughter, the present appellant akkatai. Baburao was to retire in 1983 and possibly being aware of the laws delays initiated proceedings to secure possession of the house so that he could settle down there after retirement by filing an eviction petition in hrc No. 53 of 1978 before i additional munsiff, belgaum, against respondents 2 to 4. Though he had also impleaded the appellant as a respondent he later deleted her name as she had been married and gone to live with her husband. After contest by respondents 2 to 4 the eviction petition was allowed on 4-10-1980. Respondents 2 to 4 then preferred a revision petition in hrc. Rp. No. 36 of 1981 before the principal district judge, belgaum. That petition was dismissed and respondents 2 to 4 then preferred a revision petition before this court in c.r.p. No. 63 of 1983. That petition also came to be dismissed on 9-12-1986 giving time to respondents 2 to 4 to vacate the premises. After the expiry of the time, when the landlord baburao had to file execution petition to secure possession, the present appellant filed a suit in original suit No. 705 of 1987 on the file of the third additional munsiff, belgaum, seeking a declaration that she has inherited tenancy rights in regard to the above house from her father balappa and that she is therefore a tenant and for permanent injunction restraining baburao, the decree-holder, from taking possession of the suit house on the strength of the eviction order obtained by him against the respondents 2 to 4. She filed an application for temporary injunction and after contest the learned munsiff, rejected that application by his order dated 9-2-1988. The appellant preferred an appeal in m.a. No. 10 of 1988 before the civil judge, belguam, on 15-2-1988. In the meanwhile baburao filed a petition for execution of the eviction order obtained by him against respondents 2 to 4 in execution case No. 26 of 1988 before the munsiff. The appellant possibly apprehending that the executing court may deliver possession of the premises before the appeal filed by her was heard she filed an application under Section 151, C.P.C. in the execution case on 18-2-1988 requesting the court to stay further proceedings in the execution petition till the final disposal of the original suit no. 705 of 1987 filed by her. The decree-holder opposed that application pointing out to the court of the earlier proceedings which he had taken and about even the dismissal of the application filed by the appellant for a temporary injunction in the original suit filed by her. Unfortunately for the decree-holder, the munsiff proceeded to hold an enquiry on that application treating the same as an application offering obstruction to the delivery of possession of the property sought for by the decree-holder.

(2.) after a detailed enquiry the executing court rejected the appellant's application holding that she had neither inherited the tenancy right from her father nor she was in possession of the premises in question. Undaunted by this order the appellant filed an appeal before the civil judge in r.a. No. 73 of 1988 and was able to secure an order of stay of execution of the eviction order. The learned civil judge, after elaborately considering various contentions raised before him, dismissed the appeal holding that though the appellant had inherited the tenancy right along with her mother and brothers she was not in occupation of the premises after her marriage and that as such she could not offer obstruction to the delivery. He was also of the opinion that the appellant had impliedly surrendered her tenancy rights and that she was therefore not entitled to raise any obstruction to the execution of the order. The appellant has thereafter filed this appeal. During the pendency of this appeal the original decree-holder baburao died without realising the fruits of his long drawn out litigation to get back his property.

(3.) the only substantial question of law which has been formulated in this appeal is as hereunder: "whether the appellant herein has lost her tenancy rights by virtue of her marriage even though she was with her father when he died and got married later or there was an implied surrender as found by the first appellate court ?" after hearing both sides I am of the opinion that another substantial question of law arises for consideration and that is: