Full Judgment Text
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PETITIONER:
BHARMAPPA NEMANNA KAWALE & ANR.
Vs.
RESPONDENT:
DHONDI BHIMA PATIL & ORS.
DATE OF JUDGMENT: 25/03/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (4) 299 1996 SCALE (3)507
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Delay condoned.
Substitution ordered.
Leave granted. We have heard the learned counsel on
both sides.
The admitted position is that the civil Court decreed
the suit for eviction against the appellant holding that he
was not a tenant which order had become final. The same plea
of want of jural relationship is sought to be raised in
execution. When the objection raised was negatived, the High
Court in Writ Petition No.3319 of 1992 by order dated
November 22, 1991 directed the executing Court to go into
the question. Accordingly, this appeal by special leave came
to be filed.
Shri Bhasme, learned counsel for the respondents,
contended that in view of the specific language employed in
Section 85-A of the Bombay Tenancy and Agricultural Lands
Act, 1948 the only competent authority that has to go into
the question is the revenue authority under the Act and
civil Court has no jurisdiction to go into the question
whether the appellant is a tenant or not. Therefore, the
High Court was right in directing the executing Court to go
into the question. It is rather unfortunate that the
respondent has allowed the decree holding that he is not a
tenant to become final. Having allowed it to become final,
it is not open to him to contend that he is still a tenant
under the Act and therefore the decree is nullity. Under
those circumstances, the executing Court was right in
refusing to entertain the objection for executing the
decree. The High Court was not justified, in the
circumstances, in directing the executive Court to consider
the objection.
The appeal is accordingly allowed. No costs.