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R. Chinnaswamy Gounder Vs. C.H. Laxminarayana Hariyachar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 67 of 1971
Judge
Reported inAIR1972Kant20; AIR1972Mys20; (1971)2MysLJ228
ActsCode of Civil Procedure (CPC), 1908 - Order 40, Rule 1 - Order 43, Rule 1; Tenancy Law; Mysore Land Reforms Act, 1962 - Sections 22, 41 and 41(2); Mysore Land Reforms Act, 1961 - Sections 14, 22 and 142
AppellantR. Chinnaswamy Gounder
RespondentC.H. Laxminarayana Hariyachar and anr.
Appellant AdvocateV. Krishna Murthy, Adv.
Respondent AdvocateR.J. Babu, Adv.
DispositionAppeal allowed
Excerpt:
.....landlord has given six 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 the period the tenant has failed to remedy the breach for which the tenant is proposed to be evicted......and enjoyment of the suit land. the case of the plaintiff is that he has been cultivating the land as tenant under the first defendant since 25th july 1956 agreeing to pay a cash annual rent of rs. 300/-. his further case is that defendants 1 to 3 have colluded and are trying to destroy his right as a tenant and so has filed the suit seeking permanent injunction. an application for interim injunction was filed. the learned trial judge issued an order of interim injunction and after notice to the defendants has confirmed the order of temporary injunction on 29-1-1970. thereafter on 3-9-1970 an application out of which the present miscellaneous appeal arises was filed for the appointment of a receiver. in the affidavit filed by defendant no. 2 in support of the application, it is.....
Judgment:

H.B. Datar, J.

1. The appellant in this appeal is the plaintiff and has challenged the order passed by the Civil Judge. Mysore on 18th November 1970 allowing I. A. No. 6 vacating the injunction order granted in favour of the plaintiff and appointing the Tahsildar Mysore Taluk as the receiver to take possession of the suit schedule properties and to manage and cultivate the same.

2. The plaintiff has filed O. S. No. 144/69 on 3-11-69 for a permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit land. The case of the plaintiff is that he has been cultivating the land as tenant under the first defendant since 25th July 1956 agreeing to pay a cash annual rent of Rs. 300/-. His further case is that defendants 1 to 3 have colluded and are trying to destroy his right as a tenant and so has filed the suit seeking permanent injunction. An application for interim injunction was filed. The learned trial Judge issued an order of interim injunction and after notice to the defendants has confirmed the order of temporary injunction on 29-1-1970. Thereafter on 3-9-1970 an application out of which the present miscellaneous appeal arises was filed for the appointment of a receiver. In the affidavit filed by Defendant No. 2 in support of the application, it is stated at paragraphs 2 and 3 as follows:

'2. A number of cases are going on between the plaintiff and these defendants and there has been misunderstanding also due to this litigation. A number of criminal cases are also pending against the plaintiff. One case has been filed by the police and another case by the 3rd defendant who is alleged to be his sub-lessee.

3. The plaintiff taking advantage of the temporary injunction order that has been passed against us in the above case since the date of the injunction order has been damaging and wasting the estate which is worth more than four lakhs of rupees. The plaintiff was already destroying and damaging the estate. He had also removed a pump. A notice also had been got issued through my advocate which has been served on the plaintiff. He has not replied the said notice but continued to damage the estate by cutting the trees etc. As per the letter herewith produced, the plaintiff has been removing all the pumps installed in the estate and has already disposed of some of the pumps. We have also come to know that he has been removing the pipe lines and selling the same. We have also come to know that he has been with a view to diminish the value of the estate and also put the landlord into irreparable loss, has been cutting the trees and selling the same. These defendants are afraid that if the plaintiff were to continue in possession of the estate, by the time the above case is disposed of and possession is handed over to us there will be nothing in the estate. Besides the plaintiff without paying the gutta to the landlord, has also been damaging the cocoanut trees, mango trees, tamarind trees and other jungle trees and trying to sell them also. He is also not properly cultivating the lands and has been allowing strangers to the estate who are also assisting him to destruction of the property.'

The substance of the complaint in the affidavit is that there are misunderstandings between the parties; that the plaintiff is damaging and wasting the estate by cutting several trees etc. The other allegations made in the affidavit are unnecessary to be stated for the disposal of this appeal.

3. An objection statement was filed by the plaintiff stating that he had not caused damage to the estate by removing the pump set and cutting the tress. It was stated that the second defendant and others were trying to achieve their object of throwing the plaintiff put of the suit land by filing this application. It was specifically stated that 'I have not damaged the cocoanut trees, mango trees, tamarind trees and jambo trees in any manner and much less made an attempt to sell them.'

4. A commissioner appears to have been appointed by the court pending disposal of the said application. After the report of the commissioner was received, objections were filed by both the parties regarding the acceptance of the commissioner's report.

5. In the meanwhile the application for the appointment of the receiver was considered and the learned trial Judge passed an order appointing the Tahsildar. Mysore Taluk as the receiver on 18-12-1970. It is the correctness of this order that is challenged in this miscellaneous first appeal.

6. Primarily two submissions have been made by learned counsel for the appellant. The first submission is that the learned Civil Judge had no competence to pass an order appointing a receiver as it offends the provision of the Mysore Land Reforms Act, 1961-The second submission is that there is no adequate material on record on which the court could come to the conclusion that the plaintiff has caused damage to the estate by cutting the trees. Therefore the entire foundation of the lower court being non-existent, this court should interfere with this order appointing the receiver.

7. As against this, the learned counsel for the respondents raised several contentions. It was submitted that having regard to the nature of the dispute between the parties it was necessary to preserve the estate and for the purpose of preservation of the estate, the court was justified in appointing a receiver. It was further submitted that the order of the lower court is a discretionary order and is not liable for Interference in an appeal filed under Order 43. Rule 1 of the Code of Civil Procedure. It was also submitted that the material on record was sufficient to sustain the order appointing the receiver and hence it was stated that the appeal be dismissed.

8. As is evident from the record, the tenancy of the plaintiff appears to be undisputed. The plaintiff has come into possession of the property as a tenant under defendant-1 on 25-7-1956. Defendant 1 is admittedly the landlord of the suit property and the appellant is the tenant. In that view if the court makes an order appointing a receiver, it would directly or indirectly offend the provisions of the Mysore Land Reforms Act. 1961. The relevant provisions of the Act are given below: Section 22 reads:

'Notwithstanding any agreement, usage, dearer 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 and subject to the provisions of Section 14 no person shall be evicted from any land held by him as a tenant except on any of the following grounds, namely:

(a) X X X X (b) that the tenant has done any act which is permanently injurious to the land;

X X X X Provided that no tenant shall be evicted under this sub-section unless the landlord has given six 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 the period the tenant has failed to remedy the breach for which the tenant is proposed to be evicted.'

Section 41 enables the landlord to make an application for eviction of a tenant and obtain possession of the property which reads: '41 (2): Save as otherwise provided in this Act, no landlord shall obtain possession of any land, dwelling house or site held by a tenant except under an order of the Tribunal- For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land, dwelling house or site, as the case may be, is deemed to have accrued to him.'

9. The point that is canvassed before me is that having regard to the fact that the landlord would not be in a position to ask the tenant to vacate the land except after giving six months' notice as provided under Section 22 of the Act and after filing an application and after the application is inquired into and disposed of, whether without taking recourse to this procedure, the landlord, by making an application for appointment of a receiver can obtain an order from the civil court and thus dispossess the tenant. The learned counsel for the respondents submitted that under Section 41 of the Act, the bar is for the landlord to obtain possession of the property and there was no bar for the court to order for the appointment of a receiver in the circumstances of the case, I am of the view that this contention cannot be accepted. When under the provisions of Section 22 of the Act even if the tenant had done any act which is permanently injurious to the land, the landlord was required to give a notice of six months calling upon the tenant to remedy the same and it was only thereafter he could initiate proceedings, it is not open to the landlord to obtain an order for the civil court dispossessing the tenant without following this procedure. Even under Section 41 (2) of the Act, the landlord obtains an order of the court for eviction of the tenant. Similarly by an order passed appointing a receiver, there will be dispossession, of the property held by the tenant by an order of the court. The exercise of jurisdiction to appoint a receiver under Order 40, Rule 1 C. P. C., may in such circumstances, conflict with the provisions of the Mysore Land Reforms Act. The court should, in such circumstances, not appoint a receiver directing him to obtain possession of the land from the tenant. I am, therefore, of the opinion that in the present case as the suit is pending and the tenancy is undisputed, having regard to the provisions of Section 22 of the Act, the court below should not have passed an order appointing a receiver and thus depriving the tenant's right to remain in possession of the property which he is entitled until a notice as required under Section 22 of the Act is given and the proceedings under Section 41 of the Act are initiated against him.

10. As regards the merits of the case, it may be stated that in the application that was filed for obtaining an order for appointment of a receiver, a bald assertion was made that the tenant has damaged the estate which is worth more than Rs. 4 lakhs. Barring this assertion in the affidavit, which is already stated above was denied by the tenant there is nothing on record to show that the allegation is true. No material has been furnished with the affidavit as to when the trees were cut and by whom. If full details and particulars are not furnished, it would be virtually impossible for the other side to controvert the same. It is important to note that there is no complaint made regarding large agricultural holding which is in possession of the plaintiff. The complaint of the defendants is only regarding the trees. As regards the commissioner's report, it may be seen that the objections have been filed to the same and it is still under consideration as to which part, of the report should be accepted by the court. The commissioner's report mentions that some branches have been cut and some trees have been damaged. But the commissioner's report does not, and can not obviously state that it was the plaintiff who was responsible for causing that damage. The learned Trial Judge has stated in paragraph 9 of his judgment that the exact items of damage have not been set out in the affidavit filed by the second defendant. Having regard to the material on record. I am of the view that the learned civil judge was not justified in appointing a receiver and thus depriving the plaintiff who was a tenant of his possession. Therefore, the order of the injunction is made absolute and the order of the lower court appointing the Tahsildar. Mysore Taluk as the receiver is set aside.

11. Having regard to the fact that the Commissioner's report mentions that some trees have been cut and some damage has been caused to the estate, it is necessary that the plaintiff who is still in possession of the suit property should furnish adequate security. In the circumstances. I direct that the plaintiff appellant should furnish security of Rs. 7500/- before 1st June 1971.

12. In the result, this appeal is allowed, the order of the learned Civil Judge passed in I. A. 6 is set aside. The plaintiff-appellant is directed to give security for Rs. 7500/- to the satisfaction of the trial court on or before the 1st June 1971.

13. It was stated that the property has been leased to some-body who has taken possession in pursuance of the order of the trial Judge. As I have set aside the order appointing the receiver, the receiver will now forthwith deliver possession back to the plaintiff. Further he is directed not to take any further steps to lease or do any such act prejudicial to the rights of the plaintiff.


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