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Soosai Odayar Vs. R. Swaminatha Aiyar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1936Mad522; 165Ind.Cas.5; (1936)71MLJ227
AppellantSoosai Odayar
RespondentR. Swaminatha Aiyar
Cases ReferredRajah Rajeswara Sethupathi v. Muthudayan
Excerpt:
.....balance amount by date stipulated in contract for sale show that time was essence of contract. - the fact that the plaintiff initiated proceedings unsuccessfully in the revenue court is no bar to the maintenance of this suit......to demand a pattah is res judicata in a subsequent suit brought by him to obtain possession of the suit land. phillips, j., observed that the decision on the question of the occupancy right of the plaintiff was not one on a mere incidental matter but a decision on a matter falling within the exclusive jurisdiction of the revenue court in that it is obligatory under section 57 to enquire whether the party sued is bound to grant or accept a pattah. further phillips j points out the anomaly which would result if the decision was not held to be res judicata. i am therefore of opinion that the suit in so far as it seeks a declaration that the plaintiff is the owner of both warams in items 1 and 2 of the plaint mentioned properties and a permanent injunction restraining the defendant from.....
Judgment:

Venkataramana Rao, J.

1. The question in this second appeal is whether the suit is barred by Section 189 of the Estates Land Act. The plaintiff sues for a declaration that he is the owner of both warams in items 1 and 2 of the immoveable properties mentioned in the plaint, that notice of attachment caused to be issued by the defendant of the said property under Section 112 of the Estates Land Act is illegal and for a permanent injunction restraining him from selling the said property. It was also alleged in the plaint that the defendant before instituting the proceedings under the Act had parted with his interest in the land and any proceeding thereafter by him was incompetent. The defence is that the only remedy of the plaintiff was by a suit under Section 112 of the Act, that he did institute such a suit being L.A. 499 of 1927 on the file of the Deputy Collector Pattukottai that it was dismissed as time-barred and that the present suit is barred by Section 189 of the Act and that the defendant was entitled to institute the summary proceedings. The learned District Munsif decreed the plaintiff's claim holding that as the defendant had sold his interest in the land the proceedings initiated by him are without jurisdiction. The learned District Judge reversed his decision on the ground that in spite of the transfer he can take proceedings to sell the holding of his tenant for the arrears due up to date of transfer and that though a person not entitled to the melwaram cannot take summary proceedings, yet if he claims to be entitled and takes such proceedings the revenue Court would have jurisdiction to entertain the same and it was obligatory upon the defendant to institute a suit under Section 112 and urge his objection's therein and therefore he is precluded from maintaining the present suit. The plaintiff has preferred this second appeal.

2. The main point urged on his behalf is that the suit for a declaration that he is the owner of both the warams is cognisable by a Civil Court and the injunction is ancillary to the said main relief and Section 189 of the Act is no bar to the maintenance of such a suit.

3. It cannot be disputed that where plaintiff's right as owner of land is invaded by proceedings taken under colour of a statute he is entitled to sue in a Civil Court for a declaration of his right and for an injunction to protect it. Such a suit was competent to the plaintiff before the Estates Land Act. Is it taken away by the Act? In deciding this question two principles have to be kept in view. One is that enunciated by the Privy Council in Ramayya v. Lakshminarayyana (1934) 67 M.L.J. 1 : L.R. 61 IndAp 177 : I.L.R. 57 Mad. 443 namely, where the statements in the plaint sufficiently comply with the provisions of Order 7, Rule 1 Sub-clause (f), the terms of Section 9 Civil Procedure Code lay down a general rule in favour of the jurisdiction of a civil court and the burden of proof is on the party who maintains an exception to the general rule. The second is where the right to oust the jurisdiction is based on a statute it must be construed strictly and the particular suit must be prohibited expressly or by necessary implication. The statute relied on in this case is Section 189(1) of the Estates Land Act which is in these terms:

A collector or other Revenue Officer specially authorised under this Act shall hear and determine as a Revenue Court all suits and applications of the nature specified in parts A & B of the schedule and no civil Court in the exercise of its original jurisdiction shall take cognisance of any dispute or matter in respect of which such suit or application might be brought or made.

4. What the section prohibits is a suit of the nature specified in Schedule A of the Act. The suit that is relevant to the present discussion is a suit to contest the sale of a holding under Section 112 of the Act. The section postulates an admitted relationship of landlord and tenant and where a person does not admit that he is a tenant but states that he is himself the owner of the melwaram, there is no holding in respect of which an arrears of rent can be said to be due and there is no relationship of landlord and tenant. Section 112 cannot apply and his only remedy is in a Civil Court. It is only where a person says he is a ryot but the procedure adopted by the landlord is either irregular or without jurisdiction, Section 112 can be invoked. The fact that the plaintiff initiated proceedings unsuccessfully in the Revenue Court is no bar to the maintenance of this suit. Further whether the melwaram belongs to the plaintiff or the defendant is not a matter within the exclusive jurisdiction of the Revenue Court but is one essentially for the civil Court. Vide Subbanna Achariar v. Gopalakrishna Achariar (21916) 34 I.C. 354, Appa Rao v. Venkataraju : (1920)39MLJ476 and Rajah of Sivaganga v. Venkatachalam Chetty (1934) 67 M.L.J. 268. Again there is no decision given by the Revenue Court regarding title to the melwaram.

5. The cases relied on by Mr. Venkatarama Aiyar are distinguishable. In Sethurama Aiyangar v. Subbiah Pillai : (1917)33MLJ599 the relationship of landlord and tenant was not disputed. The case in Rajah Rajeswara Sethupathi v. Muthudayan : (1928)55MLJ379 is also distinguishable. The question in that case was whether the decision of a revenue Court in a suit for the enforcement of a pattah under Section 65 of the Estates Land Act that the plaintiff was not entitled to demand a pattah is res judicata in a subsequent suit brought by him to obtain possession of the suit land. Phillips, J., observed that the decision on the question of the occupancy right of the plaintiff was not one on a mere incidental matter but a decision on a matter falling within the exclusive jurisdiction of the Revenue Court in that it is obligatory under Section 57 to enquire whether the party sued is bound to grant or accept a pattah. Further Phillips J points out the anomaly which would result if the decision was not held to be res judicata. I am therefore of opinion that the suit in so far as it seeks a declaration that the plaintiff is the owner of both warams in items 1 and 2 of the plaint mentioned properties and a permanent injunction restraining the defendant from selling the same is maintainable. I therefore reverse the decree of the learned District Judge and remand the case to the District Munsif's Court of Pattukottai for disposal in the light of the above observations. The plaintiff will not be entitled to agitate any other question in the trial except the question as to whether he is the owner of both warams. Costs will abide the result.


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