HUSEIN NABI BUX Vs. MODHIA CHHOTALAL MANSUKHLAL MORARJI

JUDGEMENT

(1.) This is an appeal under sec. 47 of the Code of Civil Procedure arising out of certain execution proceedings.

(2.) By a document executed on February 25 1929 Mansukhlal Ramji sold Survey No. 533 of Dohad to Chhotalal Mansukhlal and Punamchand Shivlal. The sale-price was mentioned as Rs. 10 0 but it was not paid at the time of the sale. Thereafter Punamchand paid the entire price to the seller and Punamchand in his turn sold the property to Nayak Mansinhji Mokamsinhji. Mansukhlal the vendor died and his heir was his daughter Bai Punji. Bai Punji filed a suit against Chhotalal Mansukhlal who is the respondent in the present appeal to recover the purchase price. Subsequently Chhotalal filed a suit against Bai Punji Punamchand Nayak Mansinhji and the tenants on the property to recover possession of the property. It may be pointed out that the appellants before this Court are those tenants. On August 8 1943 the suit was decreed in favour of Chhotalal Mansukhlal and Punamchand Shivlal. Against that decree appeals were filed to the High Court of Bombay. These appeals were by Bai Punji and Nayak Mansinhji being Appeal No. 310/1943 and No. 317/1943 respectively. On November 5 1947 the High Court varied the trial Courts decree and directed that half of the property should be given to Chhotalal the respondent on his paying Rs. 5 0 to Bai Punji. On April 22 1948 Special Darkhast No. 2/1948 was filed by the decree holder Chhotalal for execution of the decree. The Collector was directed by the Court to partition the property and thereafter the Collector partitioned the property and ordered symbolic possession of half of the property to be given to Chhotalal. Thereafter on August 11 1952 symbolic possession was in fact given to Chhotalal. Thereafter Chhotalal applied for actual possession of the half share that had been given to him by way of symbolic possession. On February 9 1957 the learned Judge in the Court below instead of passing an order wrote a letter to the Collector asking him to give actual possession to the decree-holder Chhotalal. A Special Civil Application being No. 1165/1957 was filed in the Bombay High Court against this action on the part of the learned Judge at Godhra in writing the letter instead of passing a regular order. By its decision dated July 17 1957 the learned Judge s action was set aside by the High Court and he was directed to pass an order after hearing the parties. On January 9 1958 written statement was filed by the present appellants who as I have pointed out earlier were the tenants claiming from Mansukhlal. That written statement is Ex. 40 and various contentions were raised by that written statement. They contended by that written statement that actual possession could not be given. Secondly that the decree did not require actual possession to be given; and thirdly that they were protected tenants and that they were not the tenants of Chhotalal the purchaser but they were the tenants since the time of Mansukhlal and further that as they were protected tenants they could not be evicted and only the Mamlatdar under the Bombay Tenancy and Agricultural Lands Act had the jurisdiction to hand over actual possession. The contentions urged by the appellants in the Darkhast proceedings were rejected and the learned trial Judge passed an order on March 20 1958 directing that actual possession should be given to the respondent. It is against this order passed in execution that the present appeal has been filed. It may be pointed out that the appeal was originally filed in the High Court of Bombay and after bifurcation the appeal has been transferred to this Court.

(3.) Mr. Shah on behalf of the appellants contends that as the appellants were protected tenants they could not be evicted by an ordinary Court and that in any event it is only the Mamlatdar who had exclusive jurisdiction under the Bombay Tenancy and Agricultural Lands Act 1948 to hand over possession to the landlord. Now as against these contentions there are various decisions of the Bombay High Court which go to show that when a suit has been instituted before coming into force of the 1948 Act and that suit has ultimately resulted in a decree for possession then there is nothing in the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 which debars the ordinary Civil Court from executing its own decree for possession. In this particular case it is to be borne in mind that the suit was filed as far back as 1942. The trial Courts decree was passed on August 10 1943 and the High Courts decree was passed on November 5 1947 The High Court did not set aside the trial Courts decree but merely varied the decree and directed that on Chhotalal the respondent in the present appeal paying Rs. 5000 to Bai Punji possession of half share in the Survey No. 533 of Dohad should be given to him.