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The Kaleswarar Mills, Ltd. by Agent, A.L.A.R. Kalai Raja Chettiar Vs. A.P. Govindaswami Naicker and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1946Mad76; (1945)2MLJ403
AppellantThe Kaleswarar Mills, Ltd. by Agent, A.L.A.R. Kalai Raja Chettiar
RespondentA.P. Govindaswami Naicker and ors.
Cases ReferredAmbica Charan Bakta v. Ram Prosad Chaterjee
Excerpt:
- - 4. when an application is made by the holder of a decree for possession of im-moveable property under order 21, rule 97, if the court is satisfied that the resistance or obstruction was occasioned by a person claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the court shall make an order dismissing the application. 6. the position therefore is that on the 2nd august, 1934, an order was passed declaring the right of the seventh and eighth defendants to be in possession of the properties in suit and that order became conclusive as against the plaintiff by reason of its failure to institute a suit within one year from the date of that order......profits.2. it is also necessary to mention, because an argument was based on the fact, that the present defendants and their fathers brought a suit in 1933 (o.s. no. 6 of 1933) to obtain a declaration that the deed of sale dated the 27th january, 1930, in favour of the plaintiff was not intended to be a conveyance but was intended to be a deed of mortgage and that the mortgage itself had become discharged. this suit was eventually withdrawn on the nth january, 1936.3. the subordinate judge of vellore who tried the suit dismissed it on the sole ground that the order passed by the district munsiff of arni on the 2nd august, 1934 upholding the right of the seventh and eighth defendants to possession of the properties now in dispute had become final and conclusive as no suit had been.....
Judgment:

Rajamannar, J.

1. The plaintiff (appellant) is a limited company carrying on business at Coimbatore. On 27th January, 1930, the plaintiff company purchased several items of property including a rice mill, houses, a shop, machinery and agricultural land from four brothers, namely, Parasurama Naicker, Srinivasa Naicker, Murugesa Naicker and Manicka Naicker. Defendants 1 to 3 are the sons of Parasurama Naicker. Defendants 4 to 6 are the sons of Srinivasa Naicker. Defendants 7 and 8 are the sons of Murugesa Naicker. Two days after the execution of the sale deed a lease of four items out of the properties purchased was granted by the plaintiff to Parasurama Naicker on a monthly rental of Rs. 40. In 1932 the plaintiff filed O.S. No. 536 of 1932 in the Court of the District Munsiff at Arni, against Parasurama Naicker and his undivided sons, the present first and second defendants (the third defendant was not then born) to eject them from the properties leased and for recovery of arrears of rent. The plaintiff obtained a decree on 5th May, 1933, and the decree was confirmed on appeal on 26th October, 1933. The plaintiff then attempted to obtain delivery of the properties but was met with obstruction by the present fifth defendant who, it is common ground, was acting on behalf of the present seventh and eighth defendants. The plaintiff thereupon filed two applications, E.A. Nos. 2419 and 2160 of 1933, for removal of the obstruction and for delivery of possession. The applications were dismissed by the District Munsiff of Arni on 2nd August, 1934. He held that the present seventh and eighth defendants were entitled to obstruct the plaintiff in their own right and that they were not in possession on behalf of the judgment debtors in O.S. No. 536 of 1932. This order must be deemed to have been passed under Order 21, Rule 99, of the Code of Civil Procedure. The plaintiff ill-advisedly, filed an appeal against this order and it was held, and rightly, that no appeal was maintainable. The appeal was dismissed on 9th September, 1935. The plaintiff after the lapse of nearly seven years now brings a suit on the 20th January, 1942, for a declaration that it is entitled 10 be put in possession of the properties without any obstruction from the defendants-and for recovery of possession and mesne profits.

2. It is also necessary to mention, because an argument was based on the fact, that the present defendants and their fathers brought a suit in 1933 (O.S. No. 6 of 1933) to obtain a declaration that the deed of sale dated the 27th January, 1930, in favour of the plaintiff was not intended to be a conveyance but was intended to be a deed of mortgage and that the mortgage itself had become discharged. This suit was eventually withdrawn on the nth January, 1936.

3. The Subordinate Judge of Vellore who tried the suit dismissed it on the sole ground that the order passed by the District Munsiff of Arni on the 2nd August, 1934 upholding the right of the seventh and eighth defendants to possession of the properties now in dispute had become final and conclusive as no suit had been brought under Order 21, Rule 103 of the Code of Civil Procedure to establish the right which the plaintiff now claims to possession of the properties. The plaintiff has filed the present appeal against the decree dismissing the suit.

4. When an application is made by the holder of a decree for possession of im-moveable property under Order 21, Rule 97, if the Court is satisfied that the resistance or obstruction was occasioned by a person claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application. The party against whom an order is made under this rule may institute a suit to establish the right which he claims to present possession of the property; but subject to the result of such suit the order shall be conclusive. Once a year is allowed to elapse, the order operates as a conclusive adjudication of the right to the property. The decision reported in Unni Moidin v. Pocker : (1920)39MLJ626 is a direct authority for that proposition. It was there held that the scope of a suit under Rule 103 of Order 21, Civil Procedure Code is not the determination of the mere question of possession of the parties concerned but the establishment of the right or title by which the plaintiff claims the present possession of the property. It is not necessary to refer to any other decision save the decision reported in Akkammal v. Komaraswami : AIR1943Mad36 , where, after a consideration of several decisions of this Court, it was pointed out that an order under Order 21, Rule 63 is intended to be a summary declaration of a want of title in the objector, which declaration would amount to a final decision of the question between the parties, if the party aggrieved did not take steps by the institution of a suit to supersede it. Though that case dealt with the effect of Order 21, Rule 63 on principle what was laid down in that decision would also govern the facts of the present rase. The procedure indicated by the Code is the same and Order 21, Rule 103 corresponds to Order 21, Rule 63. The learned advocate for the appellant sought to escape the effect of these decisions by relying upon a distinction which he attempted to draw between them and cases where an auction purchaser in execution is prevented successfully by an obstructor who is not a party to the suit from obtaining possession and subsequently sues to establish his right to the property in question, basing his claim on a title different from the title obtained by him in the Court auction. He relied on the decision of the Calcutta High Court reported in Ambica Charan Bakta v. Ram Prosad Chaterjee 30 C.W.N. 163. On an examination of the facts of that case it will be found that it has no bearing on the facts of the present case. There the plaintiffs were landlords who had obtained a decree for arrears of rent and in execution of that decree had purchased the holding and taken possession. Later they ' were dispossessed by an order of Court passed at the instance of the defendants who claimed possession of the property on their own account and not on behalf of the judgment-debtors. The plaintiffs, presumably abandoning their rights under their purchase in the execution sale, filed a suit in ejectment on the ground that their tenants had wrongfully parted with the holding and thereby contravened the provisions of the Bengal Tenancy Act and the transferees were liable to be ejected. The order passed by the Court in execution proceedings was sought to be relied on to defeat the plaintiffs' claim for recovery of possession. It was then pointed out that the causes of action for the two suits, that is, the one contemplated under Order 21, Rule 103 and the suit as actually framed were quite different. The plaintiffs as auction purchasers might have been aggrieved by the adverse decision against them in the proceedings under Order 21, Rule 100, but they had abandoned all their rights under the execution sale and they had instituted a suit relying on the right to which they became entitled under the Bengal Tenancy Act by reason of the action of their tenants. But in the present case before us, the title on which the plaintiff could rely to oust the seventh and eighth defendants from possession on the date of the adverse order in 1934 was in no way different from the title on which the present suit has been brought, that is, the title based on the sale deed of 1930.

5. It was contended that the withdrawal of O.S. No. 6 of 1933 relieved the appellant of the obligation of instituting a suit under Order 21, Rule 103. There is no substance in this contention because there was no adjudication in that suit in favour of the appellant.

6. The position therefore is that on the 2nd August, 1934, an order was passed declaring the right of the seventh and eighth defendants to be in possession of the properties in suit and that order became conclusive as against the plaintiff by reason of its failure to institute a suit within one year from the date of that order. The result is that the plaintiff cannot obtain possession of the properties from the seventh and eighth defendants.

7. The next question is whether the plaintiff is entitled to a decree in ejectment against defendants 1 to 6. We think that the plaintiff cannot get a decree for possession against persons who have been found not to be in possession. It is not for us to determine the relative rights between defendants 1 to 6 and defendants 7 and 8. It is enough to dispose of the present appeal to say that the plaintiff in any event cannot get the relief of possession which it prays for. The plaintiff cannot get a decree for possession because the right of the 7th and 8th defendants to the possession of the properties has become conclusively established.

8. The appeal fails and is dismissed with costs--one set--to be divided as follows : One half to respondents 7 and 8 and the other half to be shared by the other respondents.


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