DUDIK BANGARU Vs. SUBNIVASU RAMA RAO

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal arises out of an order of the Second Additional Subordinate Judge, Guntur, dated 7th July, 1961, in A.S. No. 153 of 1959 against the order of the District Munsif, Guntur, in E.P. No. 9 of 1959 in O.S. No. 530 of 1949. The respondent herein had obtained a decree for delivery of possession on 6th September, 1951. It was confirmed by the High Court in S.A. No. 980 of 1952. Thereupon, the respondent filed an E.P. seeking recovery of the schedule property. The appellant herein, i.e., the judgment-debtor in the case, contended that as the schedule lands formed part of a minor inam he had acquired occupancy rights in the land and was not liable to be evicted. The decree obtained by the respondent was, therefore, inexecutable. Both the Courts, on a consideration of the arguments advanced, came to that conclusion that as the appellant had not obtained a declaratipn of his right as contemplated under the Andhra Pradesh (Andhra Area) Inams Abolition and Conversion into Ryotwari Act, 1956 (XXXVII of 1956), hereinafter called the Act, he could not object to the execution of decree. Relying on a decision of this Court in Veerayya v. Punnamma, (1958) 2 An.W.R. 134. the lower Courts held that the decree could not be held to be inexecutable. This appeal is directed against the said order. The learned Counsel for the appellant contends that according to the decision of the High Court in S.A. No. 980 of 1952 two things have been finally decided : one, that the defendants came into occupancy of the lands as tenants of the plaintiffs or predecessors-in-title under a lease for a term and secondly that the land is situated in a minor inam. Therefore, in view of the provisions of the Act, which came into force on 14th December, 1956, the tenant was entitled to the patta of two-third land as contemplated under section 4 (2) (c) of the Act, and to that extent the decree was inexecutable.

(2.) As stated above, both the Courts have proceeded on the footing that the executing Court cannot go behind the decree and as the judgment-debtor had not obtained a declaration as provided under the Inams Abolition Act he was not entitled to raise the objection. It is to be noted, however, that under section 4 (2) (c) it has been provided that:

(3.) It is beyond dispute that the tenant has not filed any application before a revenue Court under section 5, sub-section (2) of the Act. So that, if the appellant was a tenant in occupation of the land on the date of commencement of this Act, he would be entitled to ryotwari patta for two-third share. The only question, therefore, for consideration was whether the appellant was in occupation of the land on the date of commencement of this Act, which came into force in December, 1956, Both the Courts below have not adverted to this aspect of the case and no objection seems to have been taken before the said Courts in regard to the occupation of the appellant as tenant. No doubt a decree for eviction has been passed against the appellant, but it was not executed and it was only when the E.P. was filed that this objection was raised. So that, it can be safely presumed that the appellant was in occupation of the land on 7th January, 1948, and even on the date of commencement of the Act.