RAGHUBHAI MORAR Vs. KANTABEN

JUDGEMENT

(1.) This second appeal is directed by the judgment debtor -appellant against the judgment and order passed in Civil Appeal No.5 of 1981 decided on 16th April, 1981 under which the order dated 20th January, 1981 passed by the Civil Judge (S.D.), Navsari in Execution proceedings being Regular Darkhast No.18 of 1977 has been confirmed. Briefly stated the facts of the case are that the subject matter of Regular Darkhast No.18of 1977 for execution of decree is a piece of agricultural land admeasuring about 1 acre 33 gunthas forming part of Survey No.157 situate in Mouje Kara Kachha, Tal. Navsari, District Valsad. The decree holder - respondent filed Regular Civil Suit No.310 of 1964 against the judgment debtor -appellant for possession and injunction in respect of disputed agricultural land. The decree-holder in the suit aforesaid came up with the case that on the land in dispute the judgment debtor - appellant has made encroachment. This suit has been decreed by the trial court on 15th April, 1966 for possession and injunction as prayed for. The trial court ordered the defendant judgment debtor - appellant herein to hand over possession of the suit land to the plaintiff - decree holder -respondent herein. This judgment of the trial court has been challenged by the judgment debtor appellant by filing appeal being RCA 41 of 1966 in the court of District Judge, Valsad at Navsari, which came to be dismissed on 11-10-1971. He did not feel satisfied with the judgment of the appellate court and he had brought the matter before this court by filing Second Appeal No.571 of ;1971, which was dismissed by this court on 31st January, 1977. When the decree of the trial court passed in Civil Suit No.310/1964 in favour of the decree holder - respondent attained finality the decree holder filed Regular Darkhast No.18 of 1977 on 7-3-1977 in the executing court for execution of the same.

(2.) As usual, and what it is stated in the thirties by the Privy Council that real trouble of the decree holder starts when he puts the decree for execution proved to be correct in this case. The decree holder respondent put the decree for execution, the judgment debtor -appellant having already lost in matter earlier in all the three courts raised all sorts of objections against execution of the decree. Execution of the decree has been contested by the judgment debtor - appellant on the ground inter alia that the same is not maintainable due to subsequent change of circumstances and particularly change in the law. In the submission of the judgment debtor appellant by virtue of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 which has been made applicable to the village where the disputed land is situated, after operation of the scheme of consolidation of holdings, and issue of public as well as individual notices and compliance with the provisions of the aforesaid Act and the Rules framed thereunder, the State Government has enforced the said scheme under the Act and as such the subject matter of the execution proceedings i.e. the suit land has become part and parcel of new block No.162 and as a consequence thereof the original land has lost its identity and further as the new block No.162 canot now be subdivided irrespective of the judgment and decree of the civil court, the civil court in execution proceedings cannot enter into such question and the decree now cannot be enforced, and as a result thereof the possession of the land cannot be taken from the defendant - judgment debtor --appellant and restored to the decree holder. This objection raised by the judgment debtor - appellant was not accepted by the executing court and the same has been rejected. Against this order he preferred appeal in the District Court, Valsad, which came to be decided against the appellant by the Assistant Judge, Valsad at Navsari, under the impugned order and hence this second appeal before this court.

(3.) Learned counsel for the appellant has raised only contention that in view of the fact that under the provisions of the Consolidation of Holdings and Prevention of Fragmentation Act, the land in question has been notified by the Consolidation Officer under the scheme framed by him and approved by the Government, and the land in question has become part of Block No.162, in case the decree is executed it will amount to subdivision of the block, which is otherwise prohibited under the said Act. In support of this contention learned counsel for the appellant- judgment debtor has placed reliance on the decision of the apex court in the case of Mst. Bibi Rahmani Khatoon & Ors. vs. Harkoo Gope & Ors. reported in AIR 1981 SC 1450.