-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4847 OF 1986 1. Ramu Pandu Gavade, since deceased by his heirs and L.Rs: 1(a) Shivaji Ramchandra Gavade and ors 2. Dnyanu Pandu Gavade, .. Petitioners. Vs 1. Ramchandra Vinshnu Kulkarni, since deceased by his heirs and L.Rs: 1.(b)Govind Ramchandra Kulkarni & ors.. Respondents. Mr M.L.Patil, for the petitioners. Mr M.D.Angal, for respondent nos 1(b) to 1(d). CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 07.10.2006 DATE : 07.10.2006 DATE : 07.10.2006 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This writ petition arises from the order dated 28.7.1986 rendered by the learned Civil Judge, Jr.Dn., Islampur, on the application at Exhibit-6 in Regular Darkhast No.193 of 1968. By the impugned order, the application at Exhibit-6 filed by the petitioners-defendants purportedly under section 47 of the Code of Civil Procedure (for short, "CPC"), has been rejected. 2. This litigation has a chequered history. I propose to make a reference to the factual matrix, to the extent as may be necessary and relevant for -2- adjudication of the questions raised in this petition. The darkhast proceedings, in which the petitioners filed the application at Exhibit-6, arise from the judgment and decree dated 12.10.1968 passed in Regular Civil Suit No.25 of 1968. The said suit was filed by one Ramchandra Vishnu Kulkarni. It appears that Ramchandra Kulkarni died on 5.12.1972. His four sons, viz. Narayan, Govind, Ashok, Hindurao and his wife Kamlabai were brought on record in the darkhast proceedings. Out of the five heirs, Govind, Ashok and Hindurao were brought on record in the present writ petition as respondent nos. 1(b), 1(c)and 1(d). Insofar as respondent nos 2 to 17, the original defendants in the suit are concerned, they have been deleted by the petitioners being not necessary parties for the purpose of deciding the instant writ petition. The suit was instituted claiming relief of joint possession in respect of several properties including the suit agricultural lands bearing Gat No.2238, formerly R.S.No.307/1, 307/2 and 307/3, totally admeasuring two hectors and three Ares, situate at village Kasegaon, Taluka Walve, District-Sangli, herein referred to as "the suit lands". 3. Few admitted facts are as follows. The petitioners are in exclusive possession of the suit -3- lands. They were party-defendants in Regular Civil Suit No.25 of 1968. The suit was decreed exparte on 12.10.1968. Some of the defendants carried the matter in Appeal and then in the Second Appeal before this court. Both the appeals were dismissed and consequently the decree stood confirmed. The petitioners did not appear in the suit, though were served, nor did they challenge the decree in appeal. The petitioners even did not appear in the appeals filed by the other defendants. Immediately after the suit was decreed on 12.10.1968, Regular Darkhast No.193 of 1968 was filed by Ramchandra Vishnu Kulkarni. However, the execution proceedings remain stayed pending the aforesaid appeals. 4. The case set up by the petitioners is that their father Pandu Gavade was a tenant in all the three suit lands since before 1.4.1957. All throughout the suit lands stood in the name of the original defendant nos 1 and 2, i.e. the deleted respondent nos 2 and 3 in the petition, and their father Pandurang Ramchandra Kulkarni as landlords. The 32-G proceedings under the Bombay Tenancy and Agricultural Lands Act,1948 (for short, "the Tenancy Act") in respect of R.S. Nos.307/1, one of the three suit lands, was initiated and concluded by fixing its purchase price on 31.10.1961. The purchase certificate under section 32M in respect thereof was -4- also issued on 19.8.1967. It appears that some time prior to 1964 the petitioners’father-Pandu Gavade was illegally dispossessed from the other two suit lands, viz. R.S.Nos 307/2, 307/3 and hence he had to file an application for restoration of possession under section 29 of the Tenancy Act. In 1964 the application for restoration of possession was allowed. That order was carried by defendant nos 1 and 2 in appeal, then in revision and thereafter in Special Civil Application before this court. Defendant nos 1 and 2 lost before all the forums and the possession of R.S.No.307/2 and 307/3 was delivered to the petitioners’ father on 14.8.1973. Thereafter, 32G proceedings in respect thereof were initiated and concluded with the issuance of the purchase certificate under section 32M of the Tenancy Act on 25.7.1978. It is against this backdrop, the petitioners claim that they are in possession of all the three suit lands as owners. 5. Regular Civil Suit No.25 of 1968 was filed some time in 1968 and it was decreed on 12.10.1968. After the exparte decree was confirmed in the appeal as well as in the second appeal, filed by some of the defendants in the suit, vide the judgment of this Court dated 21.7.1980, the execution proceedings, bearing Regular Darkhast No.193 of 1968 started moving further. When -5- the decree was sought to be executed against the petitioners, they made an application at Exhibit-6 under section 47 of CPC on 29.4.1986 contending that the decree is inexecutable being without jurisdiction, as the petitioners have become the owners of the suit lands under the Tenancy Act. This application has been rejected by the executing court by the impugned order dated 28.7.1986 and hence the present petition. 6. At this stage, a reference to an old litigation will have to be made, on the basis of which the respondents-decree holders claim right over the suit lands. The great grand father of original plaintiff- Ramchandra Vishnu Kulkarni, i.e. the father of respondent nos 1(b) to 1(d), one Narayan had five sons. Hari, Ramchandra, Laxman, Ganesh and Govind. Plaintiff-Ramchandra represented the branch of Govind Narayan Kulkarni whereas original defendant nos 1 and 2 represent the branch of Ramchandra Narayan Kulkarni. Hari had three sons - Anant, Yashwant and Krishna. Anant and Yeshwant had filed Civil Suit No.627 of 1918 against the son of Pandurang, i.e. the son of Ramchandra Narayan Kulkarni and Vishnu, i.e. father of the plaintiff-Ramchandra. The decree was passed in the said suit to the effect that the lands would remain in possession of Anant and Yeshwant during their life time -6- and after their death, would continue to remain in possession of Anandi and Indira, their respective wives during their life time and after their death the lands would revert back to Pandurang Ramchandra Kulkarni and Vishnu Govind Kulkarni. This family had several lands and they all were subject matter of that suit as well as the present suit. The suit lands were also part of the said joint family property. Indira died on 11.5.1953 and Anandi died on 7.12. 1955. After their death, according to Ramchandra, all the properties including the suit lands were reverted to Pandurang Ramchandra Kulkarni and his father Vishnu Govind Kulkarni and that is how he is the joint owner of the property and hence had filed Regular Civil Suit No.25 of 1968 against all the defendants including the petitioners for joint possession. 7. Against the backdrop of the aforesaid factual matrix, two questions have been raised for my consideration in the present writ petition. Firstly, whether in view of the certificate of purchase issued under section 32M of the Tenancy Act, the decree has become inexecutiable and hence the execution proceedings, insofar as the suit lands is concerned, be dropped and/or dismissed and, secondly, whether the writ petition would in its entirety abate since the petition -7- was initially filed against the dead person and that all the legal representatives of the deceased-plaintiff Ramchandra, who were on record in the execution proceedings, were not added as respondents in this petition. 8. Mr Patil, learned counsel for the petitioners, at the outset, placed heavy reliance upon the judgment of the Apex Court in Saraswatibai Trimbak Gaikwad Vs Saraswatibai Trimbak Gaikwad Vs Saraswatibai Trimbak Gaikwad Vs Damodhar D Motiwale and ors, (2002) 4 SCC 481 Damodhar D Motiwale and ors, (2002) 4 SCC 481 Damodhar D Motiwale and ors, (2002) 4 SCC 481, to contend that in view of the purchase certificate issued under section 32M of the Tenancy Act issued on 19.8.1967 in respect of R.S. Nos 307/1 and on 25.7.1978 in respect of R.S.Nos 307/2 and 307/3, the decree obtained by the plaintiff cannot be executed against the petitioners. He submitted that the petitioners had become the owners of the suit lands on 1.4.1957 by operation of law and, therefore, the decree in respect of the suit lands was without jurisdiction and cannot be executed. He then submitted that the decree of joint possession can only be passed against co-parceners, and not against the petitioners, they being purchasers of the suit lands under the provisions of the Tenancy Act. He submitted that the petitioners have become the purchasers of the suit lands under the Tenancy Act and there is prohibition of transfer of the said lands under -8- section 43 thereof. If the decree is executed, the possession of the respondents will be unauthorised under section 83A and they would be liable to be evicted under sections 84 and 84C of the Tenancy Act. In other words, he submitted that the decree of joint possession overlooking the tenancy rights of the petitioners is without jurisdiction. In support of his contentions, he placed reliance upon the judgment of the Supreme Court in Sarwan Kumar and Anr Vs. Madanlal Aggarwal, (2003) 4 Sarwan Kumar and Anr Vs. Madanlal Aggarwal, (2003) 4 Sarwan Kumar and Anr Vs. Madanlal Aggarwal, (2003) 4 Supreme Court Cases 147 Supreme Court Cases 147 Supreme Court Cases 147. Insofar as the second question raised for my consideration is concerned, Mr Patil submitted that after the petitioners came to know about the death of Narayan, Hindurao and Kamlabai, heirs of deceased plaintiff-Ramchandra, the petitioners made enquiry but they could not find entries in the record of Kasegaon Gram Panchayat, the village of which the family was permanent residence. The efforts to find out the names of the heirs of deceased Narayan, Hindurao and Kamlabai, also were made by writing a letter to the Advocate for respondent nos 1(b) and 1(c) but there was no response and hence he could not bring the heirs of Narayan, Hindurao and Kamlabai on record. However, he submitted that respondent nos 1-B and 1-C, being the surviving heirs, they represented the estate of deceased Ramchandra Vishnu Kulkarni and, therefore, there can be no abatement of the petition, as contended by the other -9- side. In support of this submission, he placed reliance upon the following judgments: AIR 1971 SC 742 - Mahabir AIR 1971 SC 742 - Mahabir AIR 1971 SC 742 - Mahabir Prasad Vs Jageram, AIR 1982 SC 948 - Mohammad Arif Vs Prasad Vs Jageram, AIR 1982 SC 948 - Mohammad Arif Vs Prasad Vs Jageram, AIR 1982 SC 948 - Mohammad Arif Vs Allah Rabbul Alamin , AIR 1988 SC 2121 - Collector of 24 Allah Rabbul Alamin , AIR 1988 SC 2121 - Collector of 24 Allah Rabbul Alamin , AIR 1988 SC 2121 - Collector of 24 Parganaz Vs Lalit Mohan Mallik, 1991 (3) SCC 114 Parganaz Vs Lalit Mohan Mallik, 1991 (3) SCC 114 Parganaz Vs Lalit Mohan Mallik, 1991 (3) SCC 114 -Suraiyya Begum Vs Mohammad Usman, and 1995 Supp (30 SCC -Suraiyya Begum Vs Mohammad Usman, and 1995 Supp (30 SCC -Suraiyya Begum Vs Mohammad Usman, and 1995 Supp (30 SCC 331 - Bhurey Khan Vs Yasin Khan 331 - Bhurey Khan Vs Yasin Khan 331 - Bhurey Khan Vs Yasin Khan. 9. On the other hand, Mr Angal, learned counsel for respondent nos 1(b) and 1(c), submitted that the petition deserves to be dismissed as abated in its entirety as the same was filed against a dead person and also on the ground that the legal representatives of Narayan, Hindurao and Kamlabai, the sons and the wife of the original plaintiff-Ramchandra, were not brought on record. The decree obtained is a joint and indivisible and, therefore, the whole petition abates. In support of this contention, he placed heavy reliance upon the judgment of the Apex Court in Rajeshwari Amma and anr Vs Rajeshwari Amma and anr Vs Rajeshwari Amma and anr Vs Joseph and Anr, (1995) 2 SCC 159 Joseph and Anr, (1995) 2 SCC 159 Joseph and Anr, (1995) 2 SCC 159 and the judgments of this court in Cheela wd/o Vijay Choudhari and ors Vs Cheela wd/o Vijay Choudhari and ors Vs Cheela wd/o Vijay Choudhari and ors Vs Central Bank of India and ors, 1998(1) Mh.L.J. 928 Central Bank of India and ors, 1998(1) Mh.L.J. 928 Central Bank of India and ors, 1998(1) Mh.L.J. 928 and in Popatlal Prabhudas and sons Vs. Indu Eletric Popatlal Prabhudas and sons Vs. Indu Eletric Popatlal Prabhudas and sons Vs. Indu Eletric Industries and anr, 2003(1) Mh.L.J.949 Industries and anr, 2003(1) Mh.L.J.949 Industries and anr, 2003(1) Mh.L.J.949. Insofar as the first question is concerned, he submitted that a challenge to the execution of a decree can be made only -10- if the decree is void ab initio, i.e. if it has been passed by the court without jurisdiction. An illegal decree can be challenged only by preferring an appeal against it. In the present case, according to Mr Angal, the decree is not void ab initio and, therefore, the principle of nonexecutability of the decree cannot be made applicable in the present case. He took me through the judgment of the trial Court and endeavoured to demonstrate that the fact of tenancy was not brought to the notice of the court either by the petitioners by appearing in the present case or by any other party and hence there was no question of making reference under section 85A of the Tenancy Act, did arise. He, therefore, submitted that once a decree is passed then it has to be executed even if it is an illegal decree and its execution can be challenged only if it is shown that it was void ab initio. In support of this contention, he placed heavy reliance upon the judgment of the Apex Court in Rafique Bibi (dad) by LRs Vs. Rafique Bibi (dad) by LRs Vs. Rafique Bibi (dad) by LRs Vs. Sayed Waliuddin (dead) by LRS and ors , (2004) 1 SCC 287 Sayed Waliuddin (dead) by LRS and ors , (2004) 1 SCC 287 Sayed Waliuddin (dead) by LRS and ors , (2004) 1 SCC 287 and Vasudev Dhanjibhai Modi Vs Rajabhai Abdul Rehman, and Vasudev Dhanjibhai Modi Vs Rajabhai Abdul Rehman, and Vasudev Dhanjibhai Modi Vs Rajabhai Abdul Rehman, AIR 1970 SC 1475 AIR 1970 SC 1475 AIR 1970 SC 1475. He then submitted that the contention raised by the petitioners is hit by the principle of constructive res judicata and therefore the petitioners are precluded from raising any contention with regard to nonexecutability of the decree. He submitted that the -11- civil court, which passed the decree, did have the jurisdiction to try and entertain the suit. The objection, if any, therefore, ought to have been taken by filing a written statement. Since no written statement was filed, it cannot be said that the decree was without jurisdiction. In other words, it is only when the civil court lacks initial jurisdiction to try and entertain the suit and if it passes a decree then only the decree is void. Such is not a case in the present petition. He, therefore, submitted that the trial Court has rightly rejected the contentions of the petitioners. 10. At the out set, I would like to consider the principal question raised in the petition as to whether, in the face of the facts of the present case, a decree could be executed against the petitioners. A heavy reliance was placed on the Judgment of the Supreme Court in Saraswatibai’s case Saraswatibai’s case Saraswatibai’s case (supra), to contend that not only the law laid down by the Supreme Court in this case squarely covers the question involved in the present case, but even the facts and circumstances against which the Supreme Court has laid down the law and the facts and circumstances in the present case are quite similar. In view of the submission, I deem it appropriate to state the facts and circumstances before the Supreme -12- Court in that case, against which the proposition relied upon by the petitioners has been laid down. 11. The Supreme Court, in Saraswatibai’s case Saraswatibai’s case Saraswatibai’s case was dealing with somewhat similar fact situation. In that case one Narayan Motiwale was the owner of certain pieces of land. He had a son named Dattatraya and a daughter named Tarabai. On the death of Narayan Motiwale, Dattatraya became the owner of the properties. By a registered settlement deed dated 12.1.1997, Dattatraya gave survey nos 21/3, 20 and 20/1 to his sister Tarabai as she was poor and unable to maintain herself until her death. Pursuant to the deed of settlement the name of Tarabai was entered in the revenue record as a Kabjedar. She leased out one piece of land to a tenant in 1968. Dattatraya filed suit no.362 of 1969 against Tarabai for a declaration that he was the owner of the land in question and that Tarabai had only a limited interest and therefore could not lease out the land. In the meantime the tenant to whom Tarabai had leased out the land applied for tenancy rights under the provisions of the Tenancy Act. The suit filed by Dattatraya was dismissed. It was carried in appeal and in appeal a consent decree was passed on 7.10.1971. Under the consent decree Tarabai agreed that she will not lease out any piece of land. In the -13- meanwhile, the tenancy proceedings, which were initiated by the lessee, were concluded and by an order dated 13.3.1971 it was held that the lessee was a deemed tenant under section 4 of the said Act. The Land Tribunal fixed a price under section 32G of the said Act. The price was paid by the lessee and that lessee became the statutory owner of the property. Dattatraya was a party to those proceedings. In 1973 Tarabai filed a suit no.73 of 1973 against Dattatraya claiming that, after coming into force of the Hindu Succession Act,1956, the limited rights vested in her had matured into an absolute right. That suit was dismissed in view of the consent decree passed in Appeal no.450 of 1970. On 19.1.1977 Dattatraya expired. On 6.9.1980 Tarabai executed a lease deed in favour of the appellants. On 7.12.1980 the appellants gave notice under section 32-O of the Tenancy Act to Tarabai and the Land Tribunal. By this notice the appellant indicated her intention to purchase the suit land. Respondent nos 1 and 2 then filed suit no.472 of 1981 against Tarabai and the appellants for a declaration that Tarabai had no authority to lease or create any encumbrance on the suit land. They prayed for recovery of possession. Tarabai expired on 5.3.1982. Thereafter, the suit had proceeded only against the appellants. On 19.2.1986 the trial Court decreed the suit holding, on the basis of the -14- earlier consent decree, that Tarabai had no authority to lease out the suit land. it was held that the lease in favour of the appellant was not binding on respondent nos 1 and 2. It was held that the appellant was a trespasser. The appellant preferred an appeal and it was allowed on 16.9.1989. Respondent nos.1 and 2 filed a second appeal which was allowed by the High Court on 27.6.1997. On 18.8.1981 the appellants filed a case under section 32-O of the Tenancy Act. Respondent nos 1 and 2 opposed that application. On 22.4.1988, the Land Tribunal fixed the purchase price under section 32G. The appellants deposited the purchase price immediately. Respondent nos 1 and 2 filed an appeal against the order dated 22.4.1988. That appeal was dismissed on 23.11.2000. A certificate of ownership under section 32M of the Tenancy Act has been issued to the appellants on 4.12.2000. The revision preferred by respondent nos 1 and 2against the order dated 23.11.2000 however was pending. It is against this backdrop, respondent nos 1 and 2 had applied for execution of the decree passed in their favour. The appellant had filed an application, in the executing court, under Order 21 Rule 97 of CPC contending that they had already become owners by virtue of the purchase price having been fixed in their favour. The appellants contended that the decree could not now be executed against them. Their application was -15- rejected on 12.2.1999. It was held that the executing court was bound to execute the decree obtained by respondent nos 1 and 2 in their civil suit. The appellants filed an appeal. That appeal came to be dismissed on 28.6.1999. The appellants preferred a writ petition in the High Court which was dismissed by the impugned judgment dated 23.8.1999. The matter was carried further to the Supreme Court. It is against this backdrop, the question that fell for the consideration of the Supreme Court was whether a decree passed by a civil court can be executed if a certificate of ownership has been granted under the provisions of the Tenancy Act. 12. A plain reading of the judgment in Saraswatibai Saraswatibai Saraswatibai would, thus, show that there is a significant similarity in the facts of the instant case and the facts of the case before the Supreme Court. The only distinguishing factor, which was brought to my notice by Mr Agnal, learned counsel for the respondents, was that the decree holder in Saraswatibai was a party in the tenancy proceedings whereas in the present case the decree holder was not a party to the Tenancy proceedings. It was also brought to my notice in the instant case that at no stage in the civil suit the fact of tenancy was brought to the notice of the court either by the -16- petitioners or any other party to the proceedings. Defendant nos 1 and 2 were before the civil court as well as before the tenancy authorities. They also did not bring it to the notice of the civil Court. The suit and the tenancy proceedings were progressing simultaneously. However, indubitably the petitioners had succeeded before the first authority much before the suit was decreed. 13. The Supreme Court in Saraswatibai’s Saraswatibai’s Saraswatibai’s case (supra), after considering the scheme of the provisions of Section 32-O, 32G, 32H, 85 of the Tenancy Act in paragraphs 24 and 25 of the judgment, held thus:- "24. Faced with this position Mr.Lalit submitted that in this case, there was a decree, after contest, between the appellant and Respondents Nos.1 and 2. He submits that that decree is binding on the appellant and can be executed against the appellant. We have read the decrees/orders of the civil court. In passing the decree and holding the appellant to be a trespasser the civil court has not considered the provisions of the said Act. The conclusion that the appellant is a trespasser is de hors the right of the appellant under the said Act. Mr. Lalit submitted that the appellant never claimed before the civil court that she was a deemed tenant. He submitted that the appellant could have contended before the civil court that she was a deemed tenant under the said Act. He submitted that as the appellant has not taken this contention before the -17- civil court she is now debarred from raising a claim under the said Act. We see no substance in this submission. The appellant had already made an application under Section 32-0 before the suit was filed by Respondents 1 and 2. Respondents 1 and 2 were aware that the appellant had made such an application. The appellant was pursuing her remedy under the said Act before the