Untwalia, J. - (1.) These two appeals by special leave are from the common judgment of the Karnataka High Court. In the year 1945, a suit for partition and possession was filed by the original respondent No. 2 (since deceased and his heirs substituted). In the said suit all the co-sharers were impleaded as defendants 1 to 7. The 4th respondent in these appeals was defendant No. 1 and the predecessors-in-interest of the appellants were defendants 5 and 6. Each branch had 1/7th share. A preliminary decree was passed by the trial Court on December 13, 1954, which was eventually confirmed by the High Court in a second appeal decided on January 16, 1963. After the passing of the preliminary decree in the year 1954, in accordance with the law prevalent in the State of Karnataka (then known as Mysore State), an execution case being L. D. 117 of 1956 was filed by the plaintiff-decreeholders and the appellants in the Court which had passed the preliminary decree for final partition and possession; the same had to be made and given by the Collector. In the execution case was impleaded respondent No. 1 in these appeals as judgment-debtor No. 20 because he had been inducted as a lessee of a portion of the suit properties during its pendency in or about the year 1948 by respondent No. 4. The effect of impleading respondent No. 1 as a judgment-debtor was as if he was impleaded as a party to the suit before the final partition. On May 29, 1961, the executing court directed the Collector partition the suit property and to give possession of their respective allotted lands to the various co-sharers including the appellants. The Collector made the final allotment of the various lands to the different co-sharers. The disputed land over which respondent No. 1 had been inducted by respondent No. 4 was allotted to the share of the appellants sometime after May 29, 1961 and before May 29, 1965. 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 cultivating possession of it. The Execution Court was moved in the matter and by its order dated June 8, 1965, it directed the Tahsildar to deliver actual possession, The said order was confirmed in appeal on July 31, 1965 by the First Appellate Court. Respondent No. 1 filed Execution Second Appeal No. 86 of 1965, presumably because the order dated 8-6-1965 of the Execution Court was one under S. 47 of the Civil P. C. In this appeal, the High Court made certain conditional orders of ad interim stay. The conditions were not complied with by respondent No. 1. Thereupon, the appellants made an application again to the Execution Court for directing actual delivery of possession. The first respondent contested the application filed by the appellants on the ground that he being a tenant of the land had made an application under the Mysore Land Reforms Act. 1961" which had come into force on October 2, 1965, hereinafter to be called the Karnataka Act, seeking a declaration that he was a tenant within the meaning of that Act. The Execution Court, by its order dated August 8, 1967, again directed the Tahsildar to deliver actual possession and its order was confirmed by the First Appellate Court on August 31, 1967. Execution Second Appeal No. 78 of 1967 was filed by respondent No. 1 in the High Court on September 21, 1967.
(2.) The High Court has allowed both the appeals by its common judgment dated February 9, 1968 and held that respondent No. 1, in view of the provisions of the Karnataka Act, cannot be evicted and no actual delivery of possession can be given against him unless the requirements of the said Act are followed. In so doing the High Court has followed the decision of this Court in Bhimaji Shankar Kulkarni v. Dundappa Vithappa, (1966) 1 SCR 145 given in relation to the corresponding provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter called the Bombay Act. Hence these appeals.
(3.) Mr. S. S. Javali argued for the appellants and strenuously assailed the judgment of the High Court. Mr. Naunit Lal, appearing for the first respondent, combated his argument. Although respondent No. 4 was also represented before us by an Advocate, no argument was advanced on his behalf, as the dispute in these appeals is mainly between the appellants and the first respondent.;