Gangula Gopal Reddy vs Lachma Reddy and others

Qamar Hasan, J.—This application in revision on behalf of the decree-holder is directed against the order of the Munsif, Ibrahimpatam, dated 9-11-1953 allowing the objection petition and directing restitution of Survey No. 137 situate in Nandnoor. Ibrahampatam Taluq to the counter-petitioners.

It appears that the petitioner obtained a decree for possession of the disputed plot under S. 9. Specific Relief Act on 30-3-1952. The defendants in the suit invoked the revisional jurisdiction of the High Court and prayed for a stay of execution. The stay was granted on condition that they furnished security for Rs. 1500/-. The defendants failed to comply with the condition, and on the petitioner''s application, execution was allowed to issue in pursuance whereof he obtained possession of the uncultivated moiety of the land in dispute on 7-8-1953. The delivery of possession with respect to the other half was postponed by the Nazir on account of its having been already cultivated by the judgment-debtors. The petitioner protested that the possession of the remaining moiety could not be withheld inasmuch as the judgment-debtors had cultivated it after the stay order was passed by the High Court with no intention of complying with the condition of furnishing the security.

The protest made by the petitioner was pending decision when on 18-3-1953, the counter-petitioners appeared on the scene and filed an application under R. 100 of O. 21, Civil P. C. alleging that the judgment-debtors had nothing to do with the possession of the disputed land and that they were in possession since the time the land came under cultivation. They produced a protected tenancy certificate purporting to have been granted under the Hyderabad Tenancy and Agricultural Lands Act, 1950 and claimed, on that basis immunity from dispossession.

After presenting their objection petition, the counter-petitioners applied on 27-8-1953 for stay of execution which the Munsif ordered to be put in the presence of the decree-holder. On the same day, they presented another application praying that the execution be at least stayed till the appearance of the decree-holder. The learned Munsiff disallowed this application on the ground that according to the bailiff''s report the execution had already been effected and there was nothing on the record to support the applicants'' contention that the process of delivery of possession was fictitious and of no legal effect.

The petitioner having obtained possession of the other half of the disputed land either on 27th or 28th August 1953 put in his counter contending that the judgment-debtors and the counter-petitioners were acting in collusion with each other to nullify the effect of a legally passed decree and and to deprive him of the fruits of the decree. In regard to the tenancy certificate, he urged that it, had been obtained on the false and collusive report of the village officials and for which proceedings were pending before the competent Revenue authorities.

The learned Munsif without allowing the parties to adduce evidence to substantiate their respective contentions allowed the objection petition on the ground that under S. 99 of the aforementioned Act, no civil Court was competent to evict a protected tenant to whom the Revenue authorities had granted a tenancy certificate.

The material on which this finding was based consisted of certain oral admissions made by the parties and the orders of the Collector dated 28-5-1952 and that of the Additional Collector dated 12-6-1953.

It was admitted before me that the counter-petitioners were declared by the Tahsildar to be protected tenants as against the judgment-debtor in a proceeding to which the petitioner was not a party. It is also admitted by the Advocates appearing on behalf of the parties that the disputed tenancy is, on appeal, pending decision before the appellate Revenue authority. The Collector in his order dated 28-5-1952 observed inter alia:

Their (the counter-petitioners in this case) possession cannot be continued on the basis of protected tenancy certificate which they have produced as the validity of this tenancy depends on the patta which is under investigation.

The order of the Additional Collector dated 12-6-1953, directs that until the final disposal of the proceeding before the Division Officer, the disputed land might be leased to the counter-petitioner for a term of one year.

The learned Advocate for the petitioner contended that when the Collector has decided that the counter-petitioners'' possession cannot be continued on the basis of the protected tenancy certificate, the counter petitioners cannot seek protection on that ground in the execution proceeding and there would be no ousting of the jurisdiction of the civil court as contemplated by S. 99, of the Hyderabad Tenancy and Agricultural Lands Act, 1950, hereinafter to be referred as the Act. In other words, his argument is that the question of protected tenancy being eliminated by reason of the Collector''s order of 28-5-1952, the provisions of S. 99 of the Act are not attracted and therefore the court below ought to have decided the objection petition on merits, or if necessary after taking evidence.

On the other hand, it is urged by the learned Advocate for the counter-petitioners that unless the order of the Tahsildar declaring the counter-petitioners protected tenants is set aside on appeal, they would in law be deemed to be immune from being dispossessed, and that under Sec. 35 of the Act, the declaration made by the Tahsildar would be conclusive which in turn would attract the provisions of Sec. 99 of the Act.

Before I proceed to dispose of these rival contentions, I would like to deal first with that portion of the land which was delivered to the petitioner on 28-8-1953. Art. 165, Limitation Act, prescribes a period of thirty days from the date of dispossession for an application under the Civil P. C., 1908, by a person dispossessed of immoveable property and disputing the right of a decree-holder to be put in possession. The application of the counter-petitioners presented on 18-8-1953 related or would be deemed to have related to the possession of the moiety of uncultivated land. No doubt, before they were dispossessed they sought the stay of further execution of the decree but when dispossessed, they failed to make an application for recovery of possession under R. 100 of O. 21, Civil P. C., and they did not make any attempt to amend the pending application by adding a prayer in respect of the moiety from which they were dispossessed on 28-8-1953. In this state of affairs, it was not open to the learned Munsif to grant to the counter-petitioners the relief which they had never sought.

The learned Advocate for the opponents contended that the application of 18-8-1953 was an anticipatory application in regard to the moiety from which the counter-petitioners were later dispossessed and therefore they were not bound either to seek an amendment of the pending application or file an application after dispossession. He reinforced his argument by making a reference to the case of --''Narsaji v. Chandappa'', 12 Deccan LR 251 (FB) (A), and -- ''M. Narain v. Bagayya'', 40 Deccan LR 275 (B). These authorities no doubt support his contention that such anticipatory applications would be deemed to be resistance or obstruction to obtaining possession of the property and though the applicant had not in fact been dispossessed, his application would be inquired into and disposed of on merits. But a discordant note had been struck in the case of -- ''Sakina Begum v. Salah Bin Ahmed'', 39 Deccan LR 302 (C), and -- Digumber Rao v. Dhondu'', AIR 1953 Hyd 4(D), and in these cases, it has been held that it is necessary before an investigation is made under R. 97 of O. 21 that an application should be made to the court by the decree-holder and unless the third person is dispossessed of the property he has no cause of action to apply under O. 21, R. 97, Civil P. C.

It would thus appear that there is an acute divergence of opinion on the disputed point. I have given my best consideration to the reasons given by these authorities for their respective conclusions. In my view, the latter authorities lay down a correct rule. The reason for my conclusion would be clear if the relevant provisions of law are kept in view. Rule 97 of O. 21 provides:

Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

According to the language employed by the legislature, the Rule seems to contemplate the case of actual resistance or obstruction to the execution of a decree or order for possession by a person not a party to the decree or order and a complaint by the decree-holder or auction purchaser praying for its removal. It does not appear to deal with cases of threatened resistance or obstruction to be initiated prematurely on the application of a prospective objector. In order to find out the true scope of the rule in question, it must be read with Art. 167 of the first schedule of the Limitation Act. That Article prescribes for an application complaining of resistance and obstruction to delivery of possession of immovable property, a period of thirty days from the date of resistance or obstruction. If the anticipatory application of the prospective resister or obstructor is taken as being equivalent to actual resistance or obstruction, the application of the decree-holder or the auction-purchaser would have to be filed within thirty days of the anticipatory application.

If for any reasons beyond the control of the decree-holder or the auction-purchaser, his counter happens to be filed beyond thirty days of the date of the anticipatory application, the Court having regard to S. 3, Limitation Act, will have no choice but to refuse to act upon it because of the bar of limitation. This aspect of the question emphasises that the application to initiate proceeding under R. 97 of O. 21, Civil P. C. must be that of the decree-holder or the auction-purchaser. The resistance or obstruction by itself saves the person in possession from being dispossessed and that is why sub-rule (2) of R. 97 enjoins the court to fix a date for investigating the matter and to summon the party against whom the application is made to appear and answer the same. This sub-rule again stresses the fact that the person resisting or obstructing to the delivery of possession is only given the procedural right to answer the application put in by the decree-holder or the auction-purchaser. I am therefore of the opinion that the view expressed in 39 Deccan LR 302 (C), and AIR 1953 Hyd 4(D), correctly interprets the Full Bench case of 12 Deccan LR 251 (A).

The result is that the order of the Munsiff putting the counter-petitioners in possession of the uncultivated moiety, as stated earlier, cannot be sustained.

Even assuming that the counter-petitioners'' application of 19-8-1953 automatically converted itself into an application under R. 100 of O. 21 Civil P. C. for the whole plot after their dispossession on 28-8-1953 from the cultivated moiety, can it be said that the tenancy certificate given by the Tahsildar was conclusive as against the petitioner, who admittedly was not a party to the proceeding in which the certificate relied on was granted. It is a general principle of law that no one is bound by an order which is passed in a proceeding to which he was not a party or of which he had no notice. The learned Advocate for the opposite parties contended that S. 35 makes the certificate conclusive on the question of protected tenancy and S. 99 of the Act bars the jurisdiction of the civil court to try or investigate the question. In support of the latter contention, reliance is placed upon the cases of -- Trimbak Sopana Vs. Gangaram Mhatarba, ''Dhondi Tukaram v. Dadoo Piraji'', AIR 1954 Bom 100 (F); ''Trirnalachar v. Aknoor Yellugu'', AIR 1955 Hyd 56 (G), decided by Misra C. J., and Vithal Rao J., on 23-3-1954.

These cases are authorities for the proposition that all questions with regard to the status of party, when the party claims the status of a protected tenant, are left to be determined by the Revenue Court and the jurisdiction of the civil court is ousted. No doubt, the contention advanced by the learned Advocate requires a careful examination of the issues raised but I need not at present go into them for the simple reason that the Collector as an appellate Authority, has rightly or wrongly altered the character of the counter-petitioners'' possession from that of a protected tenant to that of a tenant for a term of one year only and they are bound by that order as long as it is not superseded.

For these reasons, I allow the revision and remand the case for being investigated, if necessary, under R. 101 of O. 21, Civil P. C., in so far as that portion of the land is concerned from which the counter-petitioners were dispossessed on 7-8-1953 and set aside the order of the Munsiff in respect of the moiety, the possession of which the petitioner obtained on 28-8-1953. The petitioner will be entitled to the costs of this revision.