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PETITIONER: P.G. ESHWARAPPA

       Vs.

RESPONDENT: M. RUDRAPPA & ORS.

DATE OF JUDGMENT:       28/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATASWAMI K. (J)

CITATION:  JT 1996 (8)   171

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises  from  the  order dated July  25, 1990  of the Division Bench of the Karnataka High Court  in Writ  Petition No.4044/86. Admitted facts are that one  Mohammed Khan  was the original owner of an extent of 2  acres 37  gunthas of land in Survey No. 22/2 of Arundi Village, Honnali Taluk, Shimoga District in Karnataka State. The father  of the  respondents, Channabasappa  was a tenant under him.  Mohammed Khan sold the land to the appellant for consideration after their father had refused to purchase the land. Subsequently,  the appellant  again got  issued notice calling upon  them to  pay the  rent. Since the respondents’ father had  asserted his  title  and  denied  title  of  the appellant’s father,  he came  to file a suit for declaration of title  and for  recovery of  the  possession,  which  was decreed on  September 28, 1959 by operation of Clause (g) of Section 111(g)  of the  Transfer  of  Property  Thereby,  he forfeited his right to the tenancy on September 28, 1959. It was upheld on appeal.      It is  claimed that  appellant had  executed the decree and came  into possession  of the  land on  April 13,  1967. Subsequently, the  respondents’ father  filed an application before the  Land Reforms Tribunal for possession claiming as a tenant  That application  came to  be  dismissed.  Pending those proceeding,  the Amendment  Act 1  of 1974 (for short, the "Amendment  Act") came into force on March 1, 1974 which amended the  Land Reforms  Act, 1961  (for short, the "Act") which had  come into  force in 1965. Application filed under Section 129  was declared  abated in  appeal on  account  of coming  into  force  of  the  Amendment  Act.  Subsequently, another application under Section 48A came to be filed. That has given  rise to  the present proceedings. When the matter was dismissed  by the  Tribunal and  came up before the High Court, a  Division Bench  of that  Court in  Writ Appeal No. 1051/1980  concluded   that  since   the  eviction   of  the respondents had  taken place  after the  Act had  come  into

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force, an order of eviction obtained against the respondents was inoperative.  Consequently, an  application  had  to  be considered for eviction in accordance with the provisions of the Act. Since that was not done the Division Bench remitted the  matter   to  the   Tehsildar  for   reconsideration  in accordance with the law. When the same came to be challenged in this  Court in SLP 2866/1981, by order dated February 19, 1982 this  Court while  upholding the  order  of  remand  as legal, had given liberty to raise all the relevant questions afresh. After  remand, the  claim  of  the  respondents  was rejected.  Ultimately,  in  the  W.P.  No.  4044/86  by  the impugned judgment dated July 25, 1990 the Division Bench has held that their eviction under the decree obtained in OS No. 57/58 was not effective by operation of Section 22(1) of the Act. Consequently, the Tribunals have committed error of law in refusing  to  restore  possession  of  the  land  to  the respondents. Therefore,  directions came  to  be  issued  as under :      "(i) The  writ petition  is allowed      with costs.      (ii)  The  impugned  order  of  the      Tehsildar dated 23.9.1982 (Annexure      B)  as   also  of   the   Assistant      Commissioner dated 20.1.1986.      (iii) The  application filed by the      petitioners under  Section  129  of      the Act stands allowed.      (iv) The  Tehsildar is  directed to      put the  petitioners  forthwith  in      possession of  the land  of 2 acres      37  guntas  in  Survey  No.22/2  of      Arundi  Village,   Honnali   Taluk,      Shimoga  District,  which  was  the      subject matter of their application      under Section 125 of the Act."      Shri R.S.  Hegde, learned  counsel  appearing  for  the appellant,  contended  that  since  the  forfeiture  of  the tenancy had by the respondents’ father has taken place prior to the  coming into force of the Act, his status of being in possession was of a trespasser and not as a tenant. When the Amendment Act had come into force, he could be said to be in possession as  a trespasser.  The Act,  as amended under the Amendment Act,  gives right  only to  a  tenant.  Since  the respondents were  not tenants  under the  appellant’s father they are  not entitled  to the  benefit of the provisions of the  Act.   It  is   also  contended   that  Section  22  is inapplicable to  the facts  in this  case. Since  the decree passed against  the respondents’  father and the respondents had become  final, they  cannot get  any right to possession under the  Act. The  execution had taken place in accordance with the  decree and  as per the law prevailing at that time and, therefore,  there was to impediment in execution of the decree against  the respondents.  We find  no force  in  the contention. The Act having come into force on 2.10.1965, the provisions thereof  were applicable  on  13.4.1967.  Section 22(1) of that Act, in so far it is relevant for our purpose, read thus:      "22. Eviction of tenant for default      etc.:-     Notwithstanding      any      ............... decree  or order of      a  Court   of  law,   or   anything      contained in  any enactment  or law      repealed by  Section 142  or in any      other  law   in  force  before  the      commencement of  such enactment  of

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    law ...........  no person shall be      evicted from  any land  held by him      as a tenant except on the following      grounds, namely,      (a) That  the tenant  has failed to      pay the rent of such land or before      the due date during two consecutive      years, provided  the  landlord  has      issued  every   year  within  three      months after  the due date a notice      in writing  of the  tenant that  he      has failed to pay the rent for that      year ;      (b) that  the tenant  has done  any      act which  is permanently injurious      to the land ;      (c)  that   the  tenant   has  sub-      divided, sub-let  or  assigned  the      land in contravention of Section 21      ;      (d) that  the tenant  has failed to      cultivate the land personally for a      period of two consecutive years ;      (e) that  the tenant  has used such      land  for   a  purpose  other  than      agriculture or allied pursuits ;           Provided that  no tenant shall      be evicted  under this  sub-section      unless the landlord has given three      mouths’ notice in writing informing      the  tenant   of  his  decision  to      terminate  the   tenancy  and   the      particulars of  the ground for such      termination, and within that period      the tenant  hes failed  remedy  the      breach  for  which  the  tenant  is      proposed to evicted."      A reading thereof would clearly indicate that as on the date the Act had come into force the appellant had not taken possession of  the land.  By operation of sub-section (1) of Section 22  with an non obstante clause, any decree or order of a Court of law, or anything contained in any enactment or law repealed  by Section  142 or  in any  other law in force before the  commencement of such enactment or law, no person shall be  evicted from  any land  held by  him as  a  tenant except on  the grounds  enumerated in  clauses (a) to (e) of the Act.  Admittedly, Clauses  (a) to (e) do not contain any of the  grounds on which the respondents came to be ejected. The pre-existing right of landlord under a decree of a court of law  or any other thing contained in any enactment or law repealed  by   Section  142,  or  bilateral  contract  stood nullified and  has put an end to all liabilities incurred by the tenants.  New rights and liabilities of the landlord and tenants were  created, security  of rights  to the tiller of the soil  as also  forums are created for their enforcement. thereby, the  liability of  ejectment incurred by the tenant under contractual  relationship prior  to the  Act had  come into force and the enforceability of the decree has been set at naught  by legislative  judgment. New  rights  have  been created in  favour of the tenants in possession. Admittedly, the respondents  remained in  possession as  on the date the Act had come into force, i.e., on October 2, 1965. Execution had taken  place in  1967, i.e., after the Act had come into force. Consequently, their eviction was clearly in violation of Section 22(1) of the Act. The High Court was right in its

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conclusion that  since  the  respondents  succeeded  to  the tenancy rights held by the father they took tenancy right by inheritance. They  are entitled to the tenancy right held by their father  as intestate  successor.  Consequently,  their eviction in  execution of  the decree  passed by  the  Civil Court was  clearly in violation of Section 22(1) of the Act. The principles  of estoppel  or res  judicata do  not  apply where to  give effect  to them  would  be  to  counter  some statutory direction or prohibition. A statutory direction or prohibition cannot  be over-ridden or defeated by a previous judgment between the parties.      The earlier  Division Bench  was also  right in holding that the  eviction of  the respondents was not valid in law. We are  informed that  after the  order was  passed  by  the Division Bench,  the respondents have been put in possession and are continuing possession.      Under these circumstances, we do not think that it is a case warranting  our interference. The appeal is accordingly dismissed but in the circumstances without costs.