RAJESAB WALLAD IMAMSAB BAGWAN Vs. HARISHCHANDRA HONNAWAR

JUDGEMENT

(1.) THE plaintiff filed Special Suit No. 13 of 1946 in the Court of the Civil Judge, Senior Division, at Dharwar, for a decree for possession of certain property from the defendants alleging that the right of the defendants to continue in possession thereof as tenants was determined. The trial Court passed a decree against the defendants. Against the decree passed by the trial Court, First Appeal No. 244 of 1947 was preferred to this Court. The appeal came up for hearing before this Court in October 1949. This Court granted relief against forfeiture to the defendants on certain terms which are not material for the decision of this appeal. A decree was passed on October 18, 1949, requiring the defendants to make certain payments as a condition precedent to the relief being granted to them from forfeiture. As the defendants did not carry out the conditions imposed upon them under the decree, the decree was modified on January 15, 1951, and the appeal was dismissed. In the meanwhile the defendants had been entered in the Record of Rights by the Manilatdar as protected tenants of the land in dispute. An application was filed by the plaintiff for cancellation of that entry made by the Mamlatdar, but the application was rejected. The plaintiff thereafter filed darkhast No. 10 of 1951 for possession of the land. The learned Civil Judge, Senior Division, Dharwar, ordered that a warrant for possession of the land do issue. The defendants applied inter alia for cancellation of the warrant contending that the civil Court was incompetent to execute the decree passed by this Court in First Appeal No. 244 of 1947.

(2.) IT was urged on behalf of the defendants that even after the civil Court passed a decree for possession, possession can only be obtained in enforcement thereof by applying to the Mamlatdar under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The learned Civil Judge rejected the contention raised by the defendants. The defendants have come to this Court in appeal against the order rejecting their contention.

(3.) SECTION 70 of the Bombay Tenancy and Agricultural Lands Act of 1948 sets out the duties and functions which are required to be performed by the Mamlatdar for purposes of that Act. Section 85 of the Act excludes the jurisdiction of the civil Courts to settle, decide or deal with any question which is by or under the Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Bombay Revenue Tribunal in appeal or revision or the State Government in exercise of their power of control. There are several clauses in Section 70 which set out the duties and functions of the Mamlatdar; but it is not one of the functions or duties of the Mamlatdar to execute a decree for possession of land passed by a civil Court. Nor is it suggested that such a power is conferred by any other provision of the Act upon the Mamlatdar or the Tribunal constituted under the Act, or a Manager or the Collector or the Bombay Revenue Tribunal or upon the State Government in exercise of their power of control, Therefore, there is nothing in Section 85 read with Section 70 which excludes the jurisdiction of the civil Court to execute its own decrees properly passed for possession of agricultural lands.