P.G. ESHWARAPPAversusM. RUDRAPPA AND ORS.

A                              P.G. ESHWARAPPA
                                    v.
                           M. RUDRAPPA AND ORS.

                                 AUGUST 28, 1996

B             [K. RAMASWAMY AND K. VENKATASWAMI, JJ.)

            Land Laws:

           Land Refmms Act, 1961 : Sections 22, 48-A, 129, 142-Land owner
C   selling the land after tenant refusing to purchase the land-Tenant asserting his
    1ight and denying title of purchase1~Suit filed by purchaser for declaration of
    title and for recovery of possession-Suit decreed-Tenant fo1feited his light
    to the tenancy-High Cowt concluded that since eviction of the respondents
    had taken place after the Act had come into force order of eviction was
    inoperative-It fwther held that since ·application was not considered i11
D   accordance with the provisions of the Act, tena11ts to be put back i11 posses-
    sio11--0n appeal held, eviction of the tena11ts in execution of the decree passed
    by the Civil Cowt was clearly in violation of S.22-P1inciples of estoppel or
    res judicata do not apply where, to give effect to them would be to counter
    some statutmy direction or prohibition-Statutmy direction or prohibition
E   cannot be over- 1idden or defeated by a previous judgment between the pa1ties.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1129 of
    1991.

         From the Judgment and Order dated 25.7.90 of the Karnataka High
F   Court in W.P. No. 4044 of 1986.

            R.S. Hegde for S.K. Agnihotri for the Appellant.

            S.S. Javali and P.R. Ramasesh for the Respondents.

            The following Order of the Court was delivered :
G
          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
H   Arundi Village, Honnali Taluk, Shimoga District in Karnataka State. The
                                        322
                   P.G.ESHWARAPPAv. M.RUDRAPPA                             323

father of the respondents, Channabasappa was a tenant under him.                  A
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   B
possession, which was decreed on September 28, 1959 by operation of
Clause (g) of Section lll(g) of the Transfer of Property Act. 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         c
 possession of the land on April 13, 1967. Subsequently, the respondents'
father filed an application before the Land Reforms Tribunal for posses-
 sion claiming as a tenant. That application came to be dismissed. Pending
 those proceeding, the Amendment Act 1 of 1974 (for short, the "Amend-
 ment Act") came into force on March 1, 1974 which amended the Land D
 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 car.:e to be filed. That has given
rise to the present proceedings. When the matter was dismissed by the E
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 force, an
order of eviction obtained against the respondents was inoperative. Con-
sequently, an application had to be considered for eviction in accordance
with the provisions of the Act. Since that was not done the Division Bench
                                                                             F
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
question afresh. After remand, the claim of the respondents was rejected. G
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, H
    324                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A 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 (An-
            nexure B) as also of the Assistant Commissioner dated 20.1.1986.
B
            (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
c           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 129 of the Act."

          Shri R.S. Hegde, learned counsel appearing for the appellant, con-
D   tended that since the forfeiture of the tenancy had by the respondents'
    father had 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
E   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
F   decree and as per the law prevailing at the time and, therefore, there was
    no impediment in execution of the decree against the respondents. We find
    no force in the contention. The Act having coming 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 :

G            "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 law
             ........... no person shall be evicted from any land held by him as a
H            tenant except on the following grounds, namely :
                  P.G. ESHWARAPl'Av. M. RUDRAPl'A                         325

        (a) That the tenant has failed to pay the rent of such land or before A
        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 to the tenant that he has failed to pay the rent
        for that year :

        (b) that the tenant has done any act which is permanently injuriom
                                                                                 B
        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
                                                                                 c
        period of two consecutive years;

        (e) that the tenant has used such land for a purpose other than
        agriculture or allied pursuits;
                                                                                 D
            Provided that no tenant shall be evicted under this sub-section
        unless the landlord has given three months' 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 has failed to remedy the breach for which the          E
        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 F
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 G
thing contained in any enactinent 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 H




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    326                    SUPREME COURT REPORTS [1996] su,PP. 5 S.C.R.

A 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,
B   Consequently, their eviction was clearly in violation of Section 22(1) of the
    Act. The High Court was right in its conclusion that since the respondents
    succeeded to the tenancy right 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
c   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.
D         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 in possession.

            Under these circumstances, we do not think that it is a case warrant-
E ing our interference. The appeal is accordingly dismissed but in the cir-
     cumstances without costs.

     G.N.                                                     Appeal dismissed.




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