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Vadivel Mudaliar and anr. Vs. Pachianna Gounder - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 413 of 1973
Judge
Reported inAIR1974Mad87
ActsCultivating Tenants Protection Act; Code of Civil Procedure (CPC), 1908 - Order 39, Rules 1 and 2
AppellantVadivel Mudaliar and anr.
RespondentPachianna Gounder
Excerpt:
- - when the petitioners clearly agitate that the properties concerned are comprised in s. 7. even the appellate court has failed to consider the aspects discussed above for the purpose of deciding whether an injunction can be granted in favour of the respondent herein. it is better that the trial court dispose of the main suit itself as expeditiously as possible......tenant under the petitioners and that the village records and the affidavits of the karnam and the village munsif will show that the respondent was only a manager and not a lessee or tenant under the petitioners. mr. k. ramaswami, learned counsel appearing for the petitioners, submitted that the courts below have misdirected themselves without properly adverting to the evidence on record, that s.f. nos. 162/1 and 162/2 have nothing to do with s.f. nos. 153/1 and 153/3, which are the subject-matter of the present revision petition and that the courts below have not taken into consideration the affidavits of the village munsif and the village karnam and also the proceedings of the special deputy tahsildar (tenancy records), gobichettipalayam.4. mr. t.r. ramachandran, learned counsel.....
Judgment:
ORDER

1. The petitioners herein are defendants. The respondent filed O.S. No 474 of 1972 before the District Munsif Court, Gobichettipalayam, for a permanent injunction restraining the petitioners herein from interfering with his right to leasehold possession and enjoyment of the suit properties on the ground that he is entitled to be protected under the Cultivating Tenants Protection Act. The respondent filed I.A. No. 812 of 1972 for an order of Interim Injunction till the disposal of the suit under Order XXXIX, Rules 1 and 2, C.P. Code. The petitioners herein filed I.A. No. 1110 of 1972 for vacating the ad interim injunction granted. The District Munsif took up both I.A. Nos. 812 and 1110 of 1972, and disposed of them by his order dated 3-7-1972. He held that there is a prima facie case made out by the respondent herein as lessee and as such he is entitled to protection by way of an interim injunction under Order XXXIX, Rules 1 and 2, C.P.C. Accordingly, the order of ad interim injunction already granted was made absolute.

2. Aggrieved by the decision of the District Munsif, the petitioners filed C.M.A. No. 88 of 1972 and the District Judge, Coimbatore (East) at Erode, dismissed the appeal confirming the order of the District Munsif. Aggrieved by the decision of the Courts below, the petitioners have preferred this civil revision petition.

3. The main contention of the petitioners is that the respondent was acting only as a monakar (manager) and not as a tenant under the petitioners and that the village records and the affidavits of the karnam and the village munsif will show that the respondent was only a manager and not a lessee or tenant under the petitioners. Mr. K. Ramaswami, learned counsel appearing for the petitioners, submitted that the Courts below have misdirected themselves without properly adverting to the evidence on record, that S.F. Nos. 162/1 and 162/2 have nothing to do with S.F. Nos. 153/1 and 153/3, which are the subject-matter of the present revision petition and that the Courts below have not taken into consideration the affidavits of the village munsif and the village karnam and also the proceedings of the Special Deputy Tahsildar (Tenancy records), Gobichettipalayam.

4. Mr. T.R. Ramachandran, learned counsel appearing for the respondent, submitted that the question as to whether the respondent is a manager or a tenant can be decided only in the suit, that a prima facie case has been made out in order to enable the respondent to be in possession as a tenant and that such a case found by both the Courts below cannot be interfered with in revision.

5. Various documents have been filled in this case in order to substantiate the respective cases of the parties. The trial Court, without sufficient material, found that--

'irrespective of the conflicting descriptions of the suit properties between the plaintiff and the defendants the fact remains that the suit properties in question are one and the same, over which the parties herein agitate.'

This observation cannot be sustained without properly discussing the evidence on record. When the petitioners clearly agitate that the properties concerned are comprised in S.F. Nos. 153/1 and 153/3, there is no point in connecting the lands with those comprised in S.F. Nos. 162/1 and 162/2. The trial Court as a matter of fact, has also found that Exs. A-1 to A-4, which are procurement notices are in the name of the petitioners herein, that Ex. A-5, kist receipt, is in the name of the second petitioner and that the documents filed by the respondent themselves prove that the petitioners are the owners of the suit properties. Nevertheless the trial Court seems to think that the dispute is one as to whether the respondent is a lessee or the manager of the suit lands; and finally it has come to the conclusion that the respondent has made out a prima facie case entitling him to have the benefit of interim injunction in his favour.

6. The trial Court has also misdirected itself when it said that the burden is very heavy on the petitioner to prove that the respondent is working as their manager. The trial Court ought to have looked into the evidence and the records to show that the respondent is a tenant on the date of suit. The mere fact that the petitioners admit that the respondent is their manager looking after their fields cannot given any right to the respondent to be in possession of the suit lands as a tenant. There is absolutely no discussion by the trial Court in respect of the affidavits filed by the village munsif and the village karnam.

7. Even the appellate Court has failed to consider the aspects discussed above for the purpose of deciding whether an injunction can be granted in favour of the respondent herein. From Exs. A-9 and A-10, which are adangal extracts for the years 1967 and 1968, the appellate Court came to the conclusion that the respondent is a tenant. It has completely ignored Ex. B-1, which is of the year 1970, whereunder the adangal record definitely shows that the petitioners are doing personal cultivation of the suit lands. There is absolutely no discussion by the appellate Court except for merely referring to Ex. B-1. It has not at all adverted to the affidavits filed by the village karnam and the village munsif.

8. There is also no discussion by the Courts below on Exs. B-1, B-4, B-10, B-16, B-17, B-20 and B-21, which all would reveal possession and enjoyment of the suit lands by the petitioners herein.

9. In the matter of granting temporary injunction it is the duty of the Court to take into consideration the affidavits and the relevant documents before it records a finding. 'Taking into consideration the documents' does not mean merely referring to the same in the judgment; but there must be some discussion about them before any conclusion is arrived at. Unfortunately, the Courts below have not adverted to these documents, though not in detail at least prima facie, except referring them in their judgments. This has completely vitiated the orders of the Courts below, which, in my opinion, is material irregularity, and has to be taken that the Courts below have not exercised their jurisdiction vested in them by law.

10. Interim Injunction is no doubt a discretionary relief. The same has to be granted only after applying judicial mind and on a proper discussion of the evidence on record. Mere reference to the documents filed and the affidavits placed before the Court cannot satisfy the requirement. There must be at least a prima facie discussion about them to find out whether the respondent is a tenant of the petitioners or their manager.

11. In C.M.P. Nos. 2917 and 2291 of 1973, by an order dated 2-4-1973, I have directed both the parties not to cut the sugarcane pending disposal of the revision petition; and I have also directed that the status quo will be maintained with a direction that no party will cut the crops pending disposal of the revision petition.

12. In view of my above discussion, I do not think it is possible to maintain the orders of the Courts below. Accordingly, the civil revision petition is allowed, and the orders of the Courts below are set aside and the matter is remanded to the file of the District Munsif, Gobichettipalayam, for a fresh disposal of the applications on merits after prima facie looking into the documents relied on by the parties. In the interests of justice, it is necessary that a third party receiver is appointed for the purpose of taking charge of the suit lands, cutting the sugarcane and disposing of the sugar-cane to the Sugar Mills with which an agreement has already been entered into by the petitioners herein. Hence, the trial Court is directed to appoint an Advocate-Receiver for the purpose of taking possession of the suit lands, harvesting the sugar-cane crops and selling the sugar-cane to the Sugar Mills with whom an agreement has been entered into by the petitioners herein. The Receiver will continue till the disposal of the application for interim injunction by the trial Court. It is better that the trial Court dispose of the main suit itself as expeditiously as possible. It is left to the trial Court to take up the injunction petition now remanded either separately or along with the main suit. There will be no order as to costs.

13. In view of the disposal of the Civil Revision Petition, C.M.P. 2290 and 2291 and 2917 and 6084 of 1973 are dismissed.

14. Order accordingly.


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