PRITHVIRAJ CHUNILAL SAND Vs. HARI GANESH PARKHE

JUDGEMENT

(1.) THIS appeal arises in execution proceedings and it raises a very short question under the Tenancy Act.

(2.) IN Civil Suit No 47 of 1946 a decree for eviction was passed in favour of the landlord. The landlord had alleged that the tenant was in possession of the land for some years before the institution of this suit and that his tenancy had been duly determined on April 15, 1942, or 1943. He, therefore, claimed possession of the property and mesne profits for three years before the date of suit and future mesne profits, The civilsuit was instituted on October 16, 1946, The earlier Tenancy Act of 1989 was extended to Ahmednagar on November 8, 1946. On July 31, 1947, the trial Court decreed the landlord's claim. The landlord was authorised to take possession of the land from the defendant and he was given a decree for Rs. 140 for past mesne profits and an order for inquiry into the future mesne profits under Order XX, Rule 12, was also made. Against this decree the tenant preferred an appeal. The appeal was filed before the new Act of Tenancy of 1948, Act No. LXVII of 1948, came into operation. The appeal failed and the decree of the trial Court was confirmed on July 19, 1950. It would appear that subsequent to the appeal Court's decision the tenant applied to the Mamlatdar on August 2, 1950, for a declaration that he was a protected tenant; and the Mamlatdar gave him that declaration on November 1, 1950. An entry was accordingly made in the Record of Rights showing the tenant to be the protected tenant. On November 23, 1950, the decree -holder filed the present darkhast claiming to recover possession of the land from the judgment -debtor. His claim was met on two grounds. That the civil Court had no jurisdiction to execute the decree and that the only remedy available to the decree -holder was to move the Mamlatdar in that behalf. It was also urged that the decree could not be executed in view of the declaration given by the Mamlatdar that the judgment -debtor was a protected tenant. The executing Court has rejected both the pleas and has ordered execution to proceed, under Order XXI, Rule 35, of the Code of Civil Procedure. The judgment -debtor preferred an appeal against this order; but his appeal was summarily dismissed by Bavdekav J, It is this order which Mr. Kotwal seeks to challenge before us on behalf of the judgment -debtor.

(3.) MR . Kotwal, however, contends that the right which the landlord seeks to enforce is not his original right to terminate the tenancy of the defendant and to evict him, but the right to execute the decree which has accrued to him on the passing of the decree. Mr. Kotwal ingeniously contends that the original right of terminating the tenancy and of evicting the defendant thereafter is now merged in the decree and it is the decretal right which is being enforced and this decretal right is the right to execute the decree. In our opinion this is not a sound argument. The right which is sought to be enforced in the present proceeding is the right to evict a trespasser. That right was asserted in the suit and was recognised by the decree and is now being enforced in the execution of that decree. And it is exactly this kind of right and legal proceeding instituted to enforce it that are saved by the provisions of Section 89(2) of the Tenancy Act of 1948. If this right and the proceeding in which it is enforced are protected under Sub -section (2) of Section 89, no contention can be raised against the enforcement of this right by reference to any of the provisions of the Tenancy Act. Nothing contained in this Act will affect the said right and the legal proceedings to enforce that right. If that be the true position, the declaration given by the Mamlatdar purpoting to exercise jurisdiction under Section 70 can create no difficulty in the way of the decree -holder; it must be remembered that the relationship of landlord and tenant between the plaintiff and the defendant has been already determined and a decree has been passed against the defendant on the basis that he was a trespasser. In such a case the Mamlatdar would have no authority to hold that the defendant is a protected tenant. The declaration granted by the Mamlatdar is, therefore, outside his jurisdiction and cannot affect the plaintiff's right to evict the defendant.