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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.