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Komaraswami Pillai and ors. Vs. Sri Soundareswaraswami Temple - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad542
AppellantKomaraswami Pillai and ors.
RespondentSri Soundareswaraswami Temple
Cases Referred and Supresanna v. Upendra Narain A.I.R.
Excerpt:
.....of the plaint schedule lands by pymash numbers is not in accordance with the enjoyment of lands in the village and that it is not possible to identify most of the plots enjoyed by the several defendants by pymash numbers, as the description of the various plots contained in the pymash account has completely changed since the days of the pymash, which is one century old. 8 they make a very strong statement with reference to certain lands of the defendants which were handed over to the plaintiff in o. ' the statement of the defendants clearly amounts to this: this fact coupled with the statement that the real extent of schedule b land is much larger than that given in the plaint clearly in dicates that there is a dispute as to whether certain lands belong to the plaintiff's pangus..........in a certain village praying that the court should pass a decree directing that the lands in the suit village be divided by metes and bounds and that the lands appertaining to his 9 and 7/16ths pangus in scheduls a and c might be delivered to him and that the lands in schedule b might be so divided, and the lands over which the plaintiffs has to get his melwaram may also be ascertained and the melwaram right in these lands may be delivered to him. in the alternative it was prayed that if it is contended that the lands in the separate enjoyment of the various pangudars have been divided and exclusively belong to them, and if the court comes to the same conclusion, then the possession of the lands mentioned in schedule d may be confirmed to the plaintiff and the rest of the undivided.....
Judgment:

Walsh, J.

1. This is an appeal against the order of the District Judge of Tanjore appointing a receiver in O. S. No. 2 of 1929. Some of the defendants in the suit prefer this appeal. The plaintiff-respondent filed the suit for partition of his share in a certain village praying that the Court should pass a decree directing that the lands in the suit village be divided by metes and bounds and that the lands appertaining to his 9 and 7/16ths pangus in Scheduls A and C might be delivered to him and that the lands in Schedule B might be so divided, and the lands over which the plaintiffs has to get his melwaram may also be ascertained and the melwaram right in these lands may be delivered to him. In the alternative it was prayed that if it is contended that the lands in the separate enjoyment of the various pangudars have been divided and exclusively belong to them, and if the Court comes to the same conclusion, then the possession of the lands mentioned in Schedule D may be confirmed to the plaintiff and the rest of the undivided lands whether enjoyed in common by all the pangudars or only by some of the pangudars may be divided and the plaintiff's share may be delivered to him.

2. The village is a mirasi one in Tanjore District in which there are occupancy raiyats. I may say at once that the suit has proceeded hitherto on the supposition that the village is one under the Estates Land Act. At a certain stage the plaintiff applied to the Collector to be declared as the senior proprietor Under Section 3, Clause 5, Estates Land Act, to facilitate collection of rent. The defendants objected to the same on the ground that a suit' was pending before the Court and it was refused, apparently on the ground that the plaintiff did not show that he owned the largest fraction of the property. There are admittedly three classes of lands in the village: (1) iruvaram lands, (2) lands in which the tenants have got occupancy rights and (3) waste lands and forest which belong to the melwaramdar. How the iruvaram has arisen in the village it is unnecessary to inquire at the present stage. They are perhaps private lands of the landholder. The defendants did not object to the division of the waste lands. Certain facts are admitted which are these. The village which consists of 40 pangus had at one time belonged absolutely to one inamdar, but it has now been alienated in various directions to various persons. The plaintiff owns 9 and 7/16ths pangus. The defendants say that they are entitled to about 20 pangus. The plaintiff has got documents of title of 1873, 1876 and 1881 and it is an important point to be observed in this ease that the 73rd defendant and the 59th defendant who did not oppose the appointment of receiver, own 7 pangua and 2 pangus respectively and they have also documentary evidence which is admitted. The other defendants have no documentary evidence to connect them with the original pangudars but the number of pangus that they own is not disputed. The plaintiff asked for the appointment of a receiver on the ground that his application to the Collector to be declared as the senior proprietor was dismissed, and so there would be difficulty in collecting the rents and that he had already found such difficulty. He stated that some of the kudiwaramdars have each purchased small portions for the purpose of obstructing the melwaramdars in the matter of collection of rents, and rents were not paid for two years. In para. 6 of the plaint it is stated that as some of the tenants owning kudiwaram rights alone have purchased small portions of the melwaram pangus, they take advantage of their position and would not pay the rent properly and are creating disputes about the lands over which the melwaramdars have got both warams. The learned District Judge allowed the petition for the appointment of a receiver. In his order he says:

I do not contemplate that a receiver should be asked to determine which lands are kudiwaram and which are iruvaram lands, which is part of the subject-matter of the suit. What I contemplate is that the receiver whose appointment I consider is necessary for the protection of the plaintiff's interest should be empowered to collect what represents the melwaram on all the lands in the village as if they were admittedly kudiwaram lands, that the melwaram so collected will be paid into Court and the parties heard with regard to their drawing shares of it if they can agree what shares they should draw pending suit. Their shares will then be adjusted at the final decision in the suit. If they cannot agree as to how the money should be shared during the hearing of the suit, the money may remain in Court or invested for their benefit.

3. I shall now deal seriatim with the objections raised to this order. It is said that the petition was put in two years after the institution of the suit. But it will be seen that the plaintiff had taken further steps, though unsuccessfully, to try and get the rents collected by getting himself recognized as the senior landholder. Then it is said that there is nothing to show that there was any difficulty in collecting the rents up to the time of the suit. That might be so; but I see no reason to doubt his statement that the tenants were putting off payment of rent either by alleging themselves to be melwaramdars also or that they have to pay it to somebody else.

4. The next ground alleged is that out of 40 pangus the plaintiff owns only 9 and 7/16th pangus and it is the interest of; the larger shareholders which should be considered. The counter-affidavit against the petition for the receiver put in by defendant 40 says merely that he is conducting the case on behalf of a large number of defendants. As I have already said, defendants 73 and 59, who own 7 and 2 pangus respectively, did not oppose the application for a receiver, nor have they appealed against the order appointing a receiver. So that, of the 40 pangus in the village, those who wished for, or at least did not oppose, the appointment of a receiver held 18 and 7/l6ths or nearly half. The defendants in the suit are no less than 233 in number arid their written statement is entirely vague as to the shares each of them owns. Para. 2 runs:

It is true that the plaint village of Keelakurichi consists of 40 pangus, and that the plaintiff is the owner of 9 and 7/l6ths thereof. But it is not true that defendants 1 to 76 alone are the other pangudars.

5. As to the other defendants some of them are stated to be also pangudars along with defendants 1 to 76. It is also stated that some out of defendants 1 to 76 do not own any pangus. Thus as to the pangus which each of the defendants owns or whether they own the remaining pangus jointly, it is stated that:

Most of the defendants own kudikani rights in the kudivaram lands appertaining to 8 karais into which all the kudivaram lands in the village have been divided from time immemorial.

6. Another significant extract from the written statement is made by the learned Judge in his order and it is characteristic of the statement put in by the defence in this case. It runs:

Most of the defendants, raiyats, own both warams in most of the lands and are not liable to pay any kind of rent to any melwaramdar and no rent is liable to be paid for their lands and neither the plaintiff nor any other melwaramdars are entitled to collect any rent. Hence any receiver will be only a representative of the melwaramdars and that only with respect to kudivaram lands the melwaram of which is not owned by the raiyats owning the kudivaram rights.

7. The lower Court rightly observed that in the face of this statement it is unlikely that the plaintiff will be able to collect any rent even on the lands in which he may ultimately be found entitled to the rent.

8. The next objection urged is that as the plaintiff himself alleges that himself and the defendants are in possession of their respective shares it is not right to disturb this possession. The argument is that the lands of which each one is in possession are well-known. The plaintiff no doubt states definitely which are his lands and which the defendants' and when asked for further particulars he has given a very detailed schedule with pymash numbers, extents, etc. In reply the defendants objected to this. In para, 5 of the written statement they say that the real extent of Schedule B lands is much larger than that given in the plaint. As regards Schedule C lands, they deny that they belong to the melwaramdars exclusively and state that some of them are iruvaram lands and others kudivaram lands. In para. 6 they say that the description of the plaint schedule lands by pymash numbers is not in accordance with the enjoyment of lands in the village and that

it is not possible to identify most of the plots enjoyed by the several defendants by pymash numbers, as the description of the various plots contained in the pymash account has completely changed since the days of the pymash, which is one century old.

9. So that according to these defendants there is no use giving pymash boundaries in para. 7 they say that the detailed description of the plaint lands given by the plaintiff is no improvement over the plaint description as the lands could not be identified even with the help of the said memo. In para. 8 they make a very strong statement with reference to certain lands of the defendants which were handed over to the plaintiff in O. S. No. 6 of 1889 on the file of the Subordinate Judge's Court of Tanjore, and about which the previous trustee of the plaint temple, which the plaintiff now represents, had accepted the Court measurement, that even that measurement does not correctly represent the right of the parties, 'which vary from time to time.' The statement of the defendants clearly amounts to this: it is absolutely impossible to determine the boundaries on the ground, so much so that even a decree of measurement by a civil Court does not represent the true state of things which varies from time to time. This fact coupled with the statement that the real extent of Schedule B land is much larger than that given in the plaint clearly in dicates that there is a dispute as to whether certain lands belong to the plaintiff's pangus or not and that there is likely to be a scramble for the property. If any single defendant had come forward and said:

I own both warams in such and such a definite plot of land. It would prejudice me if a receiver is appointed,

such a plea would have been worth attention. But here there is a vast number of defendants who at the best own slightly more than half the pangus in the village (I am speaking of course of these defendants who object to the appointment of a receiver) and none of those defendants who objects to the Court's orders has given the Court the smallest help by stating where his particular plot of ground is or what the extent of his pangu is. The following cases have been quoted for the appellant; Bhupendra Nath Mukherjee v. Monohar Mukerjee : AIR1924Cal456 , Kunhan Mohun v.Kannam Menon (1). Tireth Singh v. Shronami Gurdwara Prabandhak Committee, A.I.R. 1931 Lah. 688; Woodroffe on Receivers, 131 and Kerr on Eeceivers, p. 5. It was argued on the strength of Kunhan Mohun v. Kannam Menon A.I.R. 1924 Mad. 482, that a receiver could not be appointed in a partition suit. That case is a peculiar one and I do not consider it to be an authority for the present point. There is direct authority to the contrary in Poreshnath Mukerjee v. Omertro [1890] 17 Cal.614 and Supresanna v. Upendra Narain A.I.R. 1914 Cal. 439. I am not therefore prepared to say that the lower Court has not exercised a proper discretion in appointing a receiver in this case. The appeal fails and is dismissed with costs which will be costs in the suit.


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