KRISHNA HANUMANT SHETTY Vs. GANAPPA JATTU GOWDA

JUDGEMENT

(1.) The petitioners are the legal representatives of the original defendant in original Civil Suit No. 50/1954 on the file of the Civil Judge, Junior Division, Kumta The respondent is the original plaintiff in that suit. For the sake of convenience I shall refer to the parties as plaintiff and defendant. The plaintiff was a tenant under the defendant in respect of the suit lands. He having kept the rents in arrears, the defendant sued him for recovery of possession of the demised lands together with arrears of rent and future mesne profits in O. S. (118/1948 on the file of the trial Court. A decree as prayed for was passed in his favour. The defendant put the decree in execution in Regular Darkhast No. 149/1950 and recovered possession of the lands in September 1951. In that Darkhast the present plaintiff filed an application contending that the Court had no jurisdiction to deliver possession at the lands is view of the provisions of the Bombay 'Tenancy Act of 1939 as amended by the Act. of 1946. The executing Court rejected the plaintiff's objections to the Darkhast but on appeal No. 179/1951 on the file of the District Court of Ka-nara the order of the executing Court was set aside, it having been conceded by counsel that the civil Courts had no jurisdiction in view of the Tenancy Act. The appellate Court concluded its order by stating that the lower Court (i.e., the executing Court) should direct the respondent to secure possession of the Darkhast property through the Mamlatdar. This appellate order was passed on 12-11-1952. The defendant who had already obtained possession in execution proceedings, handed back possession of the lands to the plaintiff It is not quite clear whether this handing back of possession was merely in the presence of the Mamlatdar out of Court or in enforcement of any order passed by the Mamlatdar. This, however, does not make much difference to the present controversies. This delivery of possession was on 9-2-1953. On '11-2-1954 the tenant-plaintiff commenced the Original Civil Suit No. 50/1854 out of which the revision petition arises.

(2.) The suit is for recovery of Rs. 499-4-0 as mesne profits with costs and future interest from the defendant it respect of the two years 1951-52 and (1952-58 during which the defendant was in possession, on the allegation that the defendant's possession during that period was wrongful. The trial Court dismissed the suit holding that the defendant's possession in the circumstances could not be held to be wrongful. The trial Court took the view the tenancy of the plaintiff having been duly terminated and a decree for his eviction also having been passed he was no longer entitled to possession and that the possession of the defendant as true owner cannot be said to be wrongful as against the quandom tenant the plaintiff. On appeal by the tenant the District Court of Kanara has come to an exactly contrary conclusion. According to the lower appellate Court the defendant leaving obtained possession through the order of the executing Court in Darkhast No. 149/ (1950 which order was set aside in Civil Appeal No. 1170/1951, the possession of the defendant must be held to be wrongful, whether the order in Civil Appeal No. 179/1951 was right or wrong, the same not having been set aside in appeal or otherwise. He observes that the judgment or decision in Civil Appeal No. 179/1951 must be taken to be binding between the parties, although the view of the law on which that decision was based has since been shown to be wrong by decisions of the Bombay High Court, particularly Rajesab v. Harischandra, 56 Bom LR 638 (A) and Prithvirai v. Hari, 56 Bom LR 1076 (B) According to these rulings of the Bombay High Court, where a landlord having terminated a tenancy by notice had already filed a suit for recovery of possession from his tenant before the coming into force of the Tenanry Act of 1948, a civil Court would continue to have jurisdiction not only to hear such suit and pass a decree therein but also to execute any such decree. According to these rulings, not merely the decree in O.S. 118/ 1948 but also the order of the executing Court in Darkhast No. 149/1950 would be perfectly valid and within the jurisdiction of the Court which passed that decree and of the executing Court which passed that order.

(3.) One more fact has to be stated before proceeding to discuss the arguments on this petition, in the trial Court the plaintiff stated that he went on appeal against the decree in O.S. 118/1948, but denied knowledge of the result of that appeal as against which the defendant swore that the plain, tilt's appeal was dismissed and the decree in O.S. 118/1948 confirmed,. Neither party produced the copy of the appellate decree, if any, and in the absence of such record the trial Court proceeded or, the basis that the decree in O.S. 118/1948 remained unchallenged. Nothing has been pointed out to me why this view of the trial Court should not be accepted as correct. Hence I proceed on the assumption that the decree in O.S. 118/1948 stands unchallenged.