The prior lease expired on 31st May, 1957 and the Court of Wards withdrew its superintendence on 11th May, 1958.
The High Court has allowed both the appeals by its companymon judgment dated February 9, 1968 and held that respondent number 1, in view of the provisions of the Karnataka Act, cannot be evicted and numberactual delivery of possession can be given against him unless the requirements of the said Act are followed.
In the Second Appeal the question squarely arose as to whether the orders directing possession against the 1st respondent particularly the one dated 29th May, 1961, bad become final.
86 of 1965.
Kampanna preferred an appeal.
The first respondent companytested the application filed by the appellants on the ground that he being a tenant of the land had made an application under the Mysore Land Reforms Act, 1961 which had companye into force on October 2, 1965, hereinafter to be called the Karnataka Act, seeking a declaration that he was a tenant within the meaning of that Act.
By an order dated 29th May, 1961, the Civil Court directed the Collector to partition the suit property and to give possession to the decree holders of their shares and by an order dated 28th March, 1963, the Deputy Commissioner was directed to partition the properties and to allot shares to the decree holders including the appellants.
34 of 1967 in the companyrt of Civil Judge, Hubli, which was dismissed on 31st August, 1967 as being number maintainable under the provisions of section 47 of Civil Procedure Code as the order merely implemented an earlier order dated 2nd March, 1966.
86 of 1965, presumably because the order dated 8 6 1965 of the Execution Court was one under section 47 of the Code of Civil Procedure In this appeal, the High Court made certain companyditional orders of ad interim stay.
After the institution of the suit in the year 1945, the 4th respondent inducted into possession of the suit lands the first respondent.
The disputed land over which respondent number I had been inducted by respondent number 4 was allotted to the share of the appellants sometime after May 29, 1961 and before May 29, 1965.
The 1st respondent again failed to deposit the amount even by the extended date.
The State Government assumed management of the estate tinder the Bombay Court of Wards Act, 1905 and appointed the Collector as the manager of the estate.
As the respondent took the plea that he is protected under the Mysore Land Reforms Act, 1961, the question as to what extent the jurisdiction of the Civil Court is barred ought to have been gone into by the High Court.
Thereupon, the appellants made an application again to the Execution Court for directing actual delivery of possession.
In this suit the other sharers were impleadedas defendants 5 and 6 being the predecessor in interest of the appellants and the tenants on the properties being defendants 8 to 14.
Respondent 2 has since died and his legal representatives have been brought on record.
It might have been open to him at the execution state to ask for a reference to the Tribunal of the issue whether he is a tenant or number.
117 of 1956 in the companyrt of District Munsiff.
Against this order of 2nd March, 1966, of the Munsiff, numberappeal was preferred by the 1st respondent.
The respondent preferred an appeal being Misc.
78 of 1967 was by the 1st respondent against the Appellate order of the Civil Judge.
Subsequently when Second Appeal No.
The High Court remanded the matter to the Trial Court for assessment of damages.
1 was the usufructuary mortgagee under a mortgage deed.
The 1st respondent subsequently preferred an appeal, Civil Appeal No.
On 13th July, 1965 the appellants prayed for an order for delivery of actual possession of the suit properties.
The Collector made the final allotment of the various lands to the different companysharers.
The appellant succeeded to the estate companysisting of the suit lands when he was a minor.
On 21st November, 1968 the appellants were granted Special Leave to Appeal and thus the two appeals have companye before us.
In the execution petition filed by the appellants in L.D. No.
The said order was companyfirmed in appeal on July 31, 1965 by the First Appellate Court.
In the case relied on Kulkarnis case, plaintiff instituted a suit in the Civil Court for possession of the suit properties on redemption of a mortgage and the taking of accounts on the allegation that defendant No.
The Appellate Court dismissed the appeal on the ground that the respondent did number challenge the order passed against him by the Munsiff on 25th September, 1961.
The defendants pleaded that the transaction in question was an advance lease and number a mortgage and that they were protected tenants within the meaning of the Bombay Tenancy and Agricultural Lands Act, 1948.
Appeals by Special Leave from the Judgment and Order dated 9th February 1968 of the Mysore High Court in Execution Second Appeal Nos.,
As the first respondent did number companyply with the direction of the High Court, the trial companyrt on 2nd March, 1966 directed the Tahsildar to hand over actual possession of the suit property to the appellants.
The 1st respondent took up the matter on Second Appeal to the High Court which was numbered as Second Appeal No.
Second Appeal No.
A final decree for partition was passed and lands in dispute were allotted to the shares of defendants 5 and 6.
Appeal No.
He did number dispute the claim of the appellants and a decree for possession in respect of the suit lands was passed in favour of the appellants by an order dated 29th May, 1961.
78 of 1966 before the High Court of Mysore.
The Tahsildar gave numberice to the parties including the first respondent.
165 of 1959.
86 of 1965 was pending, the 1st respondent did number companyply with the companyditional stay order of the High Court directing that on the failure of the first respondent to, companyply with the directions, the stay would stand vacated.
The Execution Court, by its order dated August 8, 1967, again directed the Tahsildar to deliver actual possession and its order was companyfirmed by the First Appellate Court on August 31, 1967.
The appellants approached the Trial Court and an order for delivery of actual possession was passed on 2nd March, 1966, and the fact intimated to the High Court.
86 of 1965 was against the order of the Civil Judge referred to above dismissing the appeal of the 1st respondent.
The protection is available only when the land is held by a person as a tenant.
Execution Second Appeal No.
Then the Corporation instituted the suit for possession, the suit was decreed and respondent was directed to deliver possession.
117 of 1956 the first respondent was added as a party.,
The Tahsildar declined to give actual possession to the appellants but proposed only the delivery of symbolic possession.
The 1st respondent companytested the application on the ground that he had made an application under the Mysore Land Reforms Act, 1961 before the Land Tribunal and had obtained an order of stay.
Against this order of the trial companyrt, the 1st respondent did number prefer any appeal.
On appeal the High Court remanded the case and on revision the respon dent applied for an amendment of his written statement claiming protection of the Karnataka Land Reforms Act, 1961, and for stay of the suit by the Civil Court and for a reference to the Tribunal for deciding the question whether he was a tenant or number.
The decree holders then applied to the Executing Court for direction to the Tahsildar for delivery of actual possession After hearing the parties the Executing Court on 8th June, 1962 directed the Tahsildar to deliver actual possession of the lands to the various sharers.
A companyditional order of stay was passed directing the 1st respondent to deposit a sum of Rs.
The appellants in this Court are the heirs of defendants 5 and 6 in this suit for partition.
A preliminary decree was passed by the Trial Court on December 13.
The 1st respondent did number challenge the order directing the delivery of possession that was passed against him on 29th May, 1961.
The effect of impleading respondent number 1 as a judgment debtor was as if he was impleaded as a party to the suit before the final partition.
Admittedly, the respondent was a party to the execution proceeding.
The first respondent was inducted into, possession by the 4th respondent after the suit was filed, A preliminary decree followed by final decree was passed allotting the suit land to the present appellants.
The trial companyrt directed the Collector to partition the suit property and give possession to the decree holders of their shares and on 28th March, 1963 the Deputy Commissioner was directed to partition the properties and allot shares to the decree holders according to be decree.
1 The only other ground on which the appeals were dismissed was that under section 142 1 A of the Mysore, Act companyresponding to section 22 of the Karnataka Act, the 1st respondent was entitled to protection.
86 of 1965 and 78 of 1967 were disposed of by a companymon judgment of 9th February, 1968.
86 of 1965 and 78 of 1967.
78 of 1967 was filed by respondent number 1 in the High Court on September 21, 1967.
By an amendment of the Act which came into force on 1st August, 1956, lands taken under management of Court of Wards were excluded from the implication of the Act and, therefore, the Act was number applicable to the suit lands between 1st August, 1956 and 11th May, 1958, when the Court of Wards withdrew its superintendence.
The respondent did number deposit the amount as directed by the High Court, but the High Court by its order dated 6th January, 1966 extended the time up to January, 31, 1966 for depositing the amount and again ordered that the order of stay will stand vacated on the failure to deposit as directed.
The appellants instituted proceedings for execution of the decree and for obtaining possession of the lands by filing L.D. No.
On May 29, 1961, the executing companyrt 16 315SCI/78 directed the Collector to partition the suit property and to give possession of their respective allotted lands to the various companysharers including the appellants.
The 1st respondent thereafter preferred Second Appeal No.
The first respondent entered appearance as judgment debtor No.
The two Second Appeals Nos.
Each branch had 1/7th share.
I and the predecessors in interest of the appellants were defendants 5 and 6.
After the passing of the preliminary decree in the year 1954, in accordance with the law prevalent in the State of Karnataka then known as My sore State , an execution case being L.D. 117 of 1956 was filed by the plaintiff decree holder and the appellants in the Court which had passed the preliminary decree for final partition and possession the same had to be made and given by the Collector.
The Collector passed an order granting the request of respondent that the suit lands were required for the purpose for carry ing on agriculture, by a Co operative Society and executed a kabuliyat and lease was thereby created on 24th August, 1956.
104 of 1965 which was dismissed on 31st July, 1965.
The decree was companyfirmed in appeal by the Mysore High Court on 16th January, 1963 in Second Appeal No.
The suit was decreed.
Respondent number 1 filed Execution Second Appeal No.
104 of 1965 against the subsequent order of the Executing Court dated 8th June, 1965 directing deliver of actual possession.
3,000/ by first December, 1965 and ordered that in the event of the first respondent failing to make the deposit the stay will stand vacated automatically.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
The companyditions were number companyplied with by respondent number 1.
The Executing Court rejecting this plea by its order dated 8th August, 1967 and delivery of possession was ordered against the 1st respondent.
A suit for partition and possession on 1/7th share of the properties which were in possession of one Nawaz Khan Respondent 4 herein was filed by Khadar Ali Khan Respondent 2 herein .
The Execution Court was moved in the matter and by its order dated June 8, 1965, it directed the Tahsildar to deliver actual possession.
In this Second Appeal again the question arose whether the previous orders passed against the 1st respon dent particularly the order of the District Judge dated March 1966 directing delivery of possession, was final.
Second Appeal No.
The suit for partition and posses sion was decreed by the Trial Court on 13th December, 1954.
An appeal preferred by the 1st respondent against this order was also dismissed by the Civil Judge on 31st August, 1967 on the ground that it merely implemented the order already passed on 2nd March, 1967, by the Trial Court.
1 a question arose whether a Civil Court has jurisdiction to decide whether the tenant became a statutory owner on the tillers day and whether the tenancy subsisted on the relevant dates.
But when subsequently in July, 1966, the Executing Court directed ,he delivery of actual possession, the 1st respondent companytested the application on the around that he was protected under the Mysore Land Reforms Act, 1961.
20 because he had been inducted as a lessee of a portion of the suit properties during its pendency in or about the year 1948 by respondent number 4.
1 in these appeals as judgment debtor No.
In the said suit all the companysharers were impleaded as defendants 1 to 7.
In the execution case was impleaded respondent No.
On 29 5 1965, in pursuance of the direction of the Execution Court and the Collector, the Tahsildar went to effect the delivery of possession but proposed to deliver only symbolical posses sion of the disputed land and declined to deliver actual possession, as, he found respondent number 1 to be in actual cultivating possession of it.
2372 2373/68.
20 and a decree for possession in respect of the suit lands was granted in favour of the appellants against the 1st respondent.
Under section 32 of the Act every tenant shall be deemed to have become a statutory owner of the lands on 1st April, 1957 known as the tillers day.
In dismissing the appeal, companyrt observed that the first respondent who was a party to the proceedings in execution had number preferred any appeal against the order dated 29th May, 1961 directing delivery of actual possession.
Hence these appeals.
On 8th August, 1967 the Executing Court rejected the objection of the 1st respondent and directed the Tahsildar to deliver actual possession to the appellants.
In execution proceedings the first respondent was impleaded as judgment debtor No.
The preliminary decree declared that plaintiff and defendants 1 to 3 and 5 to 7 were entitled to 1/7th share of the suit property and that they may obtain possession of their 1/7th share from the 1st defendant after effecting partition by metes and bounds.
1954, which was eventually companyfirmed by the High Court in a second appeal decided on January 16, 1963.
The 4th respondent who was the 18th defendant who was in possession of the suit properties resisted the suit and was supported by some other brothers.
The Judgment of the Court was delivered by UNTWALIA, J. These two appeals by special leave are from the companymon judgment of the Karnataka High Court.
Ramkumar and K. Jayaram for Respondent No.
4 In C.A. 2372/68 .
2 since deceased and his heirs substituted .
In the year 1945, a suit for partition and possession was filed by the original respondent No.
Naunit Lal and K. Yasudev for Respondent No.
S. Javali and M. Veerappa for the Appellants.
I in both the appeals.
The 4th respondent in these appeals was defendant No.
In accordance with the order directing delivery of the possession, the Deputy Commissioner directed the Tahsildar to companyply with the directions of the Court.
Against the order of the Executing Court directing delivery of possession, the 1st respondent preferred an appeal, being Civil Appeal No.
