AHMEDABAD MUNICIPAL CORPORATION Vs. JOITARAM GANESH

JUDGEMENT

(1.) This appeal is directed against the decision of our learned brother Raju J. in Second Appeal No. 380 of 1962 by which our learned brother reversed the decrees of the two lower Courts on the ground that the decree in question was a nullity which could not be executed. The short facts which have given rise to this appeal are as under:-

(2.) It appears that the appellant-Municipal Corporation of the City of Ahmedabad (hereinafter referred to as the Corporation) had obtained a decree from the Mamlatdars Court for possession of the two plots Nos. 769 and 772 situated in the City of Ahmedabad from the defendants who were tenants in respect of those two plots. The respondents thereafter filed a suit for injunction in the Civil Court for restraining the Corporation from taking possession of the said two plots in execution of the decree of the Mamlatdars Court on the ground that the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the said Act) applied to the suit lands and the tenancy which was determined by the Corporation on 31st March 1952 could not be legally terminated. The respondents therefore contended that the decree obtained from the Mamlatdars Court on 29th November 1952 was a complete nullity and the said decree could not be legally executed. The respondents therefore claimed an injunction in that suit against the Corporation. The Corporation however vehemently contended that the Corporation lands leased to the respondents and which were situated in the Corporation limits were exempted from the provisions of the Tenancy Act and the Tenancy Act did not apply to the suit lands and that the said decree of the Mamlatdars Court was legal and proper. It appears that ultimately this suit was compromised between the parties and a consent decree was passed on 10 November 1954. Under the said consent terms the respondents-plaintiffs stated that they had handed over the possession of the other final plot No. 769 to the Corporation on 12th June 1954. For the present plot No. 772 in question it was agreed that the respondents-plaintiffs shall continue its possession upto 31st March 1959 on their annually paying from 1-4-55 mesne profits of Rs. 95.36 to the defendant-Corporation. It was also agreed that the respondents had to pay in respect of that plot No. 772 a sum of Rs. 715-8-6 as mesne profits at the rate of Rs. 155.00 per year from 1950-51 upto 31st March 1959. Out of the said amount Rs. 387-8-0 were paid in cash to the Corporation and the respondents- plaintiffs were to pay the balance amount as per the agreed installments. It way further agreed that if the respondents made a default in paying three installments the decree could be executed and possession of final plot No. 772 could be taken even before 31st March 1959. On the expiry of the said period of 31st March 1959 the respondents were to hand over actual possession of final plot No. 772 after removing their goods etc. and if they made any default the Corporation was to take the possession of the said plot No. 772 by executing the decree through the Court at the costs of the respondents. It was also agreed that an injunction was granted against the Corporation that they should allow the huts of the respondents on final plot No. 772 for residential purpose to remain in existence till the aforesaid period upto 31st March 1959 and that the respondents were not to make any further construction in the said plot and were not to assign it to anyone or to transfer its possession. If the respondents committed a breach the Corporation was entitled to take possession of the said final plot No. 772 after giving one months notice in writing even before the expiry of the said period till 31st March 1959 by executing this decree. Clause 6 in terms recited that there is no relation at all between the plaintiffs and the defendant as a landlord and a tenant. In Clause 7 the description of the boundaries was given and it was mentioned that the property situated as aforesaid was of the value of about Rs. 20 0 and admeasuring 2 Acres and 15 Gunthas. The compromise finally recited that as the above terms were agreed between the parties it was declared that nothing remained to be done by the defendant- Corporation in respect of the Mamlatdars Courts decree in Suit No. 169 of 1949-50 In pursuance of these consent terms the trial Court passed a decree incorporating the entire compromise. Thereafter the defendant- Corporation applied for execution of this decree for taking possession of final plot No. 772. The respondents contended before the executing Court that the consent decree was a complete nullity and as the Court lacked inherent jurisdiction to pass such a decree the same was not executable. The executing Court over-ruled these objections and held that the decree was executable. The said decree of the lower Court was confirmed in appeal. When the Second Appeal came up before our learned brother Raju J. be however held that the said decree was a complete nullity and it could not be executed. He held (1) that as the Tenancy Act applied to the land in question the Civil Court had no jurisdiction to pass a decree for possess(on; (2) that the consent decree created a lease but the same not being a registered lease there was no objection to the execution of this decree; (3) that the Civil Court had no jurisdiction to pass such a decree for possession in favour of the defendant in a suit filed by the plaintiffs for injunction and especially when no Court-fees were even paid by the defendant-Corporation for getting such a decree in its favour and no cross-objections were even lodged; and (4) that in any event the trial Court had no jurisdiction to pass a decree for possession for final plot No 772 which was admittedly worth Rs. 20 0 as the trial Courts pecuniary jurisdiction extended only upto Rs. 10 0 at the relevant time. Our learned brother Raju J. therefore reversed the decree of the two lower Court and dismissed the darkhast filed by the Corporation. Our learned brother however granted the certificate for appeal under Clause 15 of the Letters Patent and therefore the present appeal has come up before us

(3.) The learned Advocate General has challenged this decree on all the grounds on which it has been decided against the Corporation. Before considering the various objections it would be proper at the outset to consider the terms of the consent decree in question which we have already set out. Originally the Corporation had obtained a decree for possession from the Mamlatdars Court on 29th November 1952 after terminating the defendants tenancy on 31st March 1952 in respect of both the plots including the final plot No. 772 in question. The respondents had challenged this decree in the Civil Court on the ground that the Tenancy Act applied to the lands in question. The Corporation in turn raised an objection that these lands were exempted from the provisions of the Tenancy Act. The respondents gave up their contention as regards the application of the Tenancy Act and ultimately the present compromise was arrived at. At the time of the present compromise which was filed before the trial Court on 10th November 1954 the possession of the other final plot was already handed over to the Corporation on 12th June 1954. The consent terms are therefore confined only to the other final plot No. 772. In consideration of the compromise the concluding portion in terms recited that nothing remains to be done by the defendant-Corporation in respect of the decree for possession obtained from the Mamlatdars Court. In order to remove any doubt clause 6 in terms made it clear that there is no relation at all between the plaintiffs and the defendant as a land-lord and a tenant. This clause has been inserted with a view that no contention may be afterwards taken that the decree creates any lease. Under clause 2 the amount of mesne profits had been determined at the rate of Rs. 155.00 per year from 1950-51 upto 31 March 1955 and Rs. 95.06 had been agreed for the period from 1 to 31-3-1959. If the respondents did not make any default and continued to pay the mesne profits as agreed they were permitted to continue possession of final plot No. 772 upto 31st March 1959. If the default clause applied or If the conditions mentioned in clause 5 were violated possession could be taken in execution of this decree even earlier. On the expiry of the said period till 31st March 1959 it was clearly provided in clause 4 that possession could be obtained by the Corporation even by executing this decree. Thus as a whole the compromise substitutes for the original decree of possession by the Mamlatdars Court the new consent decree for possession giving time to the respondents upto 31 March 1959 provided they paid mesne profits as agreed and observed other conditions. The consent terms therefore provided a consideration for settling the plaintiffs suit and are Intimately connected with the plaintiffs suit for Injunction. There is nothing in this compromise which is not within the scope of the plaintiffs suit. The whole purpose of the plaintiffs suit was to avoid immediate execution of the decree of possession and the compromise retained the decree for possession adding only a restriction against the Corporation that they would have to continue the plaintiffs for a period upto 31st March 1959 on payment of mesne profits. Such a decree could never create a lease as it is in terms agreed that it does not create the relationship of land-lord and tenant and Only gave a liberty to the tenant to continue possession for the agreed term on payment of the mesne profits. The decree only gave further time but it remained a decree for possession. The decree also not only relates to the plaintiffs suit but being a consideration and intimately connected with it no part of it is outside the scope of the plaintiffs suit. Ignoring all the technicalities of form in substance the original decree for possession was only modified by giving some relief to the plaintiffs for the agreed period. It is in the context of such a decree that we have to consider the various contentions which have been urged before us.