NOOR MOHD. KHAN GROUSE KHAN SOUDAGAR AND ANR. versus FAKIRAPPA BHARMAPPA MACHENAHALLI AND ORS.

Citation: [1978] 3 S.C.R. 789 · Decided: 28-04-1978 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Dismissed
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Judgment (excerpt)

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789 
NOOR MOHD. KHAN GROUSE KHAN SOUDAGAR Ai'!D ANR. 
A 
v. 
FAKIRAPPA BHARMAPPA MACHENAHALLI AND ORS. 
April 28, 1978 
[R. S. SARKARIA, N. L. UNTWALIA AND P. S. KAILASAM, JJ.] 
B 
Karnataka Land Refonns Act, 1961. (Mysore Act 10 af 1962), Sections 
132, 133 an4 142 (IA)-Eviction of a "tenant" from the land, 
whether 
the 
decision of this Court in Kulkarni's case [1966] 1 SCR 145, interpreting Section 
SSA of the Bornbay Tenancy and Agricultural Lands Act, 1948 also governs 
the interpretation of the provisions of the Karnataka Act, 1961. 
Karna/aka Land Reforms Act, 1961 (Mysore Act 10 of 1962)-Whether the 
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provisions of Act render the doctrine of tis pendens contained in Section 52 of 
the 1'ransf er of Property Act (Central Act 4), 1882 inapplicable. 
Jurisdiction-Determination whether the jurisdiction was expressly or by 
necessary implications excluded depends on the provisions of the relevc.nt enact-
ments-Karnataka Land Reforms Act, 1961 (Mysore Act 10 of 1962), Sec-
tions 132 and 133 are applicable to pending proceedings.-lnterpretation of-
Karnataka Land Reforms Act, 1961 Sections 132, and 133 r/w !vtysore Tenants 
'D 
(Ten1porary Protection froni eviction) Act, 1961 Section 4(1) and 
Bombay 
Tenancy and Agricultural Lands Act, 1948 S. SSA. 
A suit for pa11ition and possession was filed by the original resp0ndent No. 
2 herein against respondent No. 4 (Defendant No. 1 in the Suit), defendants 2 
to 7 being co-sharers and defendants 8 to 14 being tenants in possession. The 
Trial Court passed a preliminary decree on 13-12-1954 by which each branch 
got 1 /7th share. 
The said preliminary decree was confirmed 
by 
the 
High 
Court on 16-1-1963. 
In accordance with the law prevalent in the Karnataka 
State, an execution case under Section 54 r/w Order XX rule 18/0rder XXI 
rule 35 C.P.C. being LD 117/56 was filed by the plaintiff-decree holder and 
the appellants' predecessor-in-interest i.e. (defendants 5 and 6) in the Court 
v,.·hich had passed the preliminary decree for final -partition and possession of the 
same had to be made and given by the Collector. In this execution case res-
pondent No. 1 herein \vas impleaded as judgment debtor No. 20 because, during 
the pendency of the Suit in or about the year 1948, be had been inducted as a 
lessee of a portion of the suit properties in R.S. No. 61/1 and R.S. No. 61/2 
situated in village Yattinahalli in Ranebennur Taluk of Dharwar district, The 
effect of impleading respondent No. 1 as a judgment debtor was as if he was 
impleaded as a party to the suit before final partition. On May 29, 1961, the 
Executing Court directed the Collector to partition the suit property and to give 
possession of their respective allotted lands to the various co-sharers including 
the appeUants. 
Respondent No. 1 did not object to the claim. Neither did he 
carry any appeal against the said orders. The Collector made the final allot-
ment of the various lands to the different co-sharers. The disputed land over 
which respondent No. 1 had been ihducted by respondent No. 4 was allotted to 
the share of the predecessors-in-interest of the appellants some time after 
29-5-1961 and before 29-5-1965. 
E 
F 
G 
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 possession of the disputed land 
and 
declined 
to 
deliver actual possession, as he found respondent No. 1 to be in actual culti-
vating possession of it. The Execution Court was moved in the n1atter and by 
its order dated 8-6-1965, it directed the Tahsildar to deliver actual possession. 
H 
On an appeal by respondent No. 1 in C.A. 104/65 the said execution orders 
of the Tahsildar wac; confirmed resulting in Execution Second Appeal by Res-
pondent No. I in E.S.A. 86165 before the High Court. 
The High Court made 
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790 
SUPREME COURT REPORTS 
[1978] 3 S.C.R· 
certain conditional orders of ad-interim stay. 
The conditions were not 
com-
plied with by respondent No. 1. 
Thereupon the appellants made an application 
again to the Execution Court for directing actual delivery. The first respon-
dent contested the application on the ground that he being the tenant of the 
land had made an application under the Mysore Land Reforms Act, 1961 which 
had come into force on October 2, 1965 seeking a declaration that he was a 
tenant within the meaning of th
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