Skip to content


Sri Velur Vaithinathaswami Devasthanam, Vaithiswarankoil by Its Sole and Hereditary Trustee Sri-la-sri Shanmuga Desiga Gnana Sambanda Paramacharya Swamigal Avl., Adheenakartha Vs. Arumugha Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)1MLJ92
AppellantSri Velur Vaithinathaswami Devasthanam, Vaithiswarankoil by Its Sole and Hereditary Trustee Sri-la-s
RespondentArumugha Mudaliar and ors.
Cases ReferredCivil Procedure Code. In State of Madras v. Kasthuri Ammal
Excerpt:
.....lands on which full assessment of revenue has been levied under madras inam assessment act 1956 (tamil nadu act xl of 1956) exhibits a-29, 34 and 35 to 42 were exhibited in the court below to show that the appellant trust was subject to full assessment, and the court below erred in rejecting the same since they happened to be after the passing of the tamil nadu act xxvi of 1963. if section 2 (13) of tamil nadu act lvii of 1961 applies it will be well open to the appellant to seek enforcement of the benefit of section 27 by means of a separate suit and there is no machinery provided for the same in that act. may be the parties were not well advised, but once there is a valid order appointing a receiver, the legal effect of such appointment must take place, and this is a case as noted..........v. k.a.s. arumugham : air1976mad45 . is a case which deals with the provisions relating to tamil nadu act xxx of 1963 wherein there is no distinction between private and ryoti lands whereas the instant case relates to inam falling within the purview of tamil nadu act xxvi of 1963 and that act maintains the distinction between private and ryoti lands. in the instant case exhibit a-33 judgment of the subordinate court, mayuram.) will clearly disclose that these lands were declared to be private lands long ago.5. having regard to the declaration it was incorrect on the part of the lower court to lightly brush aside the same on the ground that some of the tenants were not parties to those proceedings and the principle of res judicata will not apply. according to the learned counsel.....
Judgment:
ORDER

S. Mohan, J.

1. These civil miscellaneous appeals are directed against the interlocutory orders passed under a common judgment by the learned Subordinate Judge, Mayuram on the 3rd December, 1975 wherein he rejected the interlocutory applications of the applicant to pass an order of temporary injunction and also to appoint a receiver pending disposal of the suit to take charge of the crops and the suit lands in this and future faslis, harvest the same through the respective defendants, and realise and secure the plaintiff's share of the lease paddy and deliver the same to the plaintiff.

2. In order to appreciate the point involved in these civil miscellaneous appeals it is necessary to state a few facts. The appellant is a public trust and the respondents are cultivating tenants under the appellant-trust. By an order dated 19th January, 1974 in I.A. Nos. 58 and 61 of 1974 in O.S. Nos. 9 and 10 of 1974 an interim receiver was appointed and that was appealed against to this Court in Civil Miscellaneous Appeals Nor. 76 and 77 of 1974 and pending those appeals interim injunction was obtained as a result of which the crops were cut and carried away by the appellants therein namely the tenants. Thereupon the main appeals came up for final disposal before N.S. Ramaswami, J., on 22nd March, 1974. It was reported that the appeals were not pressed and therefore they were dismissed. This necessitated the appellant before me to prefer I.A. No. 30 of 1975 in O.S. No. 9 of 1974 and I.A. No. 33. of 1975 in O.S. No. 10 of 1974 for similar reliefs during the pendency of the suits. By an order dated 22nd January, 1975, the learned Subordinate Judge of Mayuram appointed a receiver. As against that civil miscellaneous appeals Nos. 102 and 148 of 1975 were preferred and the same strategy was adopted by the tenants, in that having obtained interim orders and armed with them, the crops were cut and carried away and therefore ultimately the matter came up before Gokulakrishnan, J., on 7th July, 1975. The learned Judge has observed as follows:

In view of the fact that the interlocutory applications have themselves become infructuous and since it is open to the respondent to take out separate applications for the purpose of appointing a receiver for the crops that have to be raised in the suit lands both the civil miscellaneous appeals are dismissed. No costs.

Thereupon two other suits were filed that is O.S. Nos. 91 and 92, of 1975. Thus in all the 4 suits namely O.S. No. 9 of 1974, O.S. No. 10 of 1974, O.S. No. 91 of 1975 and O.S. No. 92 of 1975 interlocutory applications were taken out for the respective reliefs aforementioned. The learned Subordinate Judge held in a lengthy order that the petitioner is not entitled to the reliefs prayed for. The main basis on which he denied the reliefs as it appears by a reading of the order, is the judgment rendered by a Division Bench of this Court in Kazimar Periya Pallivasal through its Trustee M. Mir Hamidulla Hussaini v. K.A. S. Arumugham : AIR1976Mad45 .

3. Under these circumstances, in the appeals before me Mr. Gopal, learned Counsel for the appellant, raised the following points. First of all he urges that this is a case in which the trust is being driven from pillar to post and every time by adopting some ingenious method or other, the tenants have been able to achieve their ends without measuring the due share that the appellant-trust is entitled to. There fore, according to him this is a fit case in which the Court should lend its helping hand to a trust which for none of its fault is being deprived of its legitimate rights. Secondly he submits that by the order of Gokulakrishnan, J., dated 7th July, 1975 it would not mean that the receiver appointed earlier in I.A. Nos. 30 and 33 of 1975 in O.S. Nos. 9 and 10 of 1974, respectively, was in any way discharged and it is not open to the respondents to contend that the civil miscellaneous appeals themselves were dismissed, therefore, the order appointing receiver would stand vacated, If that be so, there is no need to ask for the very same relief. However, to put the matter beyond controversy, the present interlocutory applications under which these civil miscellaneous appeals arise were taken out with an added prayer for injunction. In fact to avoid any technical plea being put against the appellant the later two suits came to be filed for declaration and also for perpetual injunction. Viewed in this light the Court below was not justified in refusing the reliefs in the first of the two applications namely I.A. Nos. 655 and 657 of 1975 and I.A. Nos. 656 and 658 of 1975 in O.S. Nos. 9 and 10 of 1975 respectively.

4. The Court below grievously erred in applying the ratio laid down in Kazimar Periya Pallivasal through its Trustees M. Mir Hamidulla Hussaini v. K.A.S. Arumugham : AIR1976Mad45 . It is not correct to held that till the patta is granted there is no legally enforceable right and that decision cannot have any application to the facts of the present case. In fact the later rulings in Kuttachi and Ors. v. Muhammed Sultan Routher (1975) T.L.N. J. 451. and in C.V. Subbaiyya v. P. Anjayya (1974) 1 M.L.J.58. will squarely govern the facts of this case. This apart the decision in Kazimar Periya Pallivasal through its Trustee M. Mir Hamidulla Hussaini v. K.A.S. Arumugam (1975) 88 L.W. 584 : : AIR1976Mad45 . dealt with a case wherein the suit was merely for appointment of receiver; a but in the instant case the relief of a declaration and injunction had also been prayed for and only by way of interim relief to safeguard the rights of the parties the appointment of receiver was asked for. Kazimar Periya Pallivasal through its Trustee M. Mir Hamidulla Hussaini v. K.A.S. Arumugham : AIR1976Mad45 . is a case Which deals with the provisions relating to Tamil Nadu Act XXX of 1963 wherein there is no distinction between private and ryoti lands whereas the instant case relates to inam falling within the purview of Tamil Nadu Act XXVI of 1963 and that Act maintains the distinction between private and ryoti lands. In the instant case Exhibit A-33 Judgment of the Subordinate Court, Mayuram.) will clearly disclose that these lands were declared to be private lands long ago.

5. Having regard to the declaration it was incorrect on the part of the lower Court to lightly brush aside the same on the ground that some of the tenants were not parties to those proceedings and the principle of res judicata will not apply. According to the learned Counsel under Section 68 (2) of the Tamil Nadu Act XXVI of 1963 it would constitute res Judicata.

6. Even assuming that they are inam lands, this is a case under which the provisions of Tamil Nadu Public Trust Act (LVII of 1961) would apply which is a self contained Act. Section 2 (13) of, that Act does not include inam lands on which full assessment of revenue has been levied under Madras Inam Assessment Act 1956 (Tamil Nadu Act XL of 1956) Exhibits A-29, 34 and 35 to 42 were exhibited in the Court below to show that the appellant trust was subject to full assessment, and the Court below erred in rejecting the same since they happened to be after the passing of the Tamil Nadu Act XXVI of 1963. If Section 2 (13) of Tamil Nadu Act LVII of 1961 applies it will be well open to the appellant to seek enforcement of the benefit of Section 27 by means of a separate suit and there is no Machinery provided for the same in that Act. In support of these submissions the learned Counsel also places before me the decision in civil Miscellaneous Appeal No. 259 of 1970 which was confirmed in Letters Patent Appeal Nos. 59 and 60 of 1970.

7. Mr. K.V. Sankaran, learned Counsel for the respondents, in meeting the submissions of the learned Counsel for the appellant would urge that the decision in Kazimar Periya Palli vasad through its Trustee M. Mir Hamidulla Hussaini v. K.A.S. Arumugham : AIR1976Mad45 . will squarely govern this case, and there is no escape from it for the appellant. That is the only case in which the very question involved in this appeal came up for decision and the Division Bench in very categoric terms has held that during the interregnum namely, from the date of notification up to actual issue of patta, the rights of the parties are inchoate, in other words no enforceable legal right is available. If the object of the legislation to give effect to Tamil Nadu Act XXVII of 1971 was to prevent dispossession, the same principle notwithstanding that the present suit properties are situated in inam covered by the Tamil Nadu Act XXVI of 1963 would apply. Therefore, on that score no exception could be taken to the judgment of the Court below. As regards the order of Gokulakrishnan, J., inasmuch as the civil miscellaneous appeals themselves were dismissed it should be deemed that the order appointing receiver also was set aside. Even otherwise the subject-matter is not what interpretation is to be given to the order of Gokulakrishnan, J., but the subsequent orders passed by the learned Subordinate Judge in rejecting the prayer of the appellant for injunction and for the appointment of the interim receiver and therefore the order of Gokulakrishnan, J., does not concern the present case at all.

8. By the conferment of patta under Tamil Nadu Act XXVI of 1963 new rights are created and therefore the decisions relied on by the learned Counsel which related to the Tamil Nadu Act XXVI of 1948 cannot be of any assistance to him. On the question relating to the application of the Public Trust Act there are two sections which would prevent the appellant from getting reliefs at the hands of the civil Court. Section 58 bars the jurisdiction of the civil Court in matters for which reliefs are provided under the Act. Section 27(4) enables the authorised officer to grant the very relief asked for by the appellant. Therefore by the exclusion of inam assuming that the inam of this character has been excluded from the purview of Tamil Nadu Act LXVII of 1961 before a civil Court all these reliefs cannot be maintained.

9. I will now take up for consideration the merits of the respective submissions. The order of Gokulakrishnan, J., as extracted above no doubt says that the civil miscellaneous appeals are dismissed. But one fact which has to be borne in mind is, that those were appeals preferred by the tenants against the orders appointing the receiver. By merely dismissing those appeals, by no stretch of imagination it could be contended that it was intended by the learned Judge to vacate the order appointing the receiver. If the matter had stood there, I would have straightway agreed with the learned Counsel for the appellant, but unfortunately for him he preferred in the very same suits, that is O.S.Nos. 9 and 10 of 1974, I.A. Nos. 655 and 658 for similar reliefs together with the relief of interim injunction. Therefore, Mr. Sankaran, is right in so far as he says that in these civil miscellaneous appeals the Court is not concerned with the interpretation to be placed on the order of Gokulakrishnan, J. Nevertheless what I wish to point out is, that merely because for the very same relief another application was taken out, could it be said that the appellant should be denied the benefit of the earlier order appointing the receiver. In my view it cannot be done. May be the parties were not well advised, but once there is a valid order appointing a receiver, the legal effect of such appointment must take place, and this is a case as noted above where the receiver was appointed without any time-limit. To such a case the ruling in Hiralal Patni v. Loonkaran Sethiya : [1962]1SCR868 . would apply and in law therefore there is nothing to prevent the receiver to take charge and then discharge his duties as directed by the Court. It is well known that until a receiver is actually discharged he could continue to function. It has been so laid down in Muthu Vira Reddi v. Mayandi : (1929)57MLJ668 . In so far as there is no order discharging the receiver appointed in I.A.Nos. 30 and 33 of 1975, there is absolutely no legal disability for him to function. It is rather unfortunate that this aspect of the matter has been completely lost sight of by the learned Subordinate Judge. The reason why I say this is, excepting in the narrative portion nowhere do I find any discussion relating to the prior orders including that of Gokulakrishnan, J., above referred to.

10. Assuming that the order of Gokulakrishnan J., could be interpreted to mean the discharge of the receiver appointed in the above interlocutory application, I will proceed to examine the correctness of the order under appeal. The learned Sub-Judge has mainly relied on the decision in Kazimar Periya Pallivasal through its Trustee M. Mir Hamidulla Hussaim v. K.A.S. Arumugam : AIR1976Mad45 . : Mr. K.V. Sankaran fairly concedes that the consequence of the decision may be far-reaching However, he would add that if it is the law, sitting singly, I am bound by the decision of the Division Bench. No exception could be taken to this submission of Mr. Sankaran since as a single Judge I am bound by the decision of the Division Bench. But there are very many distinguishing features which enable me to hold that that decision has no application for the facts of the present case. The Division Bench in that case was no doubt confronted with a similar situation wherein the only relief was for the appointment of a receiver who could be directed by the Court to harvest and pay half of the produce to the plaintiffs as also the usual cash rent towards the use of the cocoanut tones It is this point which is strongly urged by Mr. K.V. Sankaran. That case first of all dealt with the provisions of Tamil Nadu Act XXX of 1963 together with the Amendment Act XXIX of 1971. The effect of this amendment in the words of the Division Bench is as follows:

The Government shall not dispossess any person who is personally cultivating any land in a minor inam until the Assistant Settlement Officer and Tribunal and the other appellate Tribunal for appeal if any decided that such person is not actually entitled to a ryotwari patta in respect of that land under the provisions of the Act. This is the basic provision in Act XXX of 1963 which positively makes out that on and after the notified date, quondam rights of the inamdars well as the rights of the person in possession of the lands whether as a kudiwaramdar or otherwise got postponed and suspended as if by an automatic operation of the notification under which the Act is notified. During the interregnum or period of suspension as we characterise it, it is difficult for either an inamdar or any person in occupation to assume and vest in him any right known to law. The civil Court cannot adjudicate or determine whether one or the other is entitled to a patta. Such an investigation is admittedly pending. Until that stage is reached and the determination made by the statutory Tribunals, neither the plaintiffs nor the defendants could come to a civil Court and seek for relief which on the date of such asking is in the nature of an expectancy or a bare spes successionis.

No doubt corresponding to Tamil Nadu Amendment Act XXIX of 1971 similar provisions existed under Tamil Nadu Act XXVI of 1963 also, but that is not all. As rightly contended by Mr. Gopalan, the Tamil Nadu Act XXX of 1963 does not maintain any distinction between private any ryoti lands, while such a clear distinction is maintained under Tamil Nadu Act XXVI of 1963. The reason why I mention this aspect is that the Division Bench in paragraph 3 of its judgment made a note of it and held that the defendants through the 15th defendant claimed that the plaintiffs are not iruwaramdars; but on the other hand, they are entitled to kudiwaram right in the lands and they are in lawful possession of the suit properties in exercise of their right as kudiwaramdars and that the Government had collected the kist from them and so the plaintiffs are not even entitled to receive kudiwaram produce from the lands as also the rent for the tope. In the instant case, the lands have been declared to be private lands long ago by a valid judgment of the Subordinate Judge and that has been lightly brushed aside by the Court below holding that some of the tenants were not parties. It may be so; but nevertheless that decision declaring the lands as private ought to be given due consideration and weight. Added to this the other point of distinction is that the full assessment has been collected from the trust as evidenced by Exhibits A-29, 34 and 35 to 42 under the provisions of Tamil Nadu Act XL of 1956. It is incorrect on the part of the lower Court to ignore the same on the footing that all of them arise after the Tamil Nadu Act XXVI of 1963. Even in such a case it will be of great help to the appellant because they ceased to be inam lands especially having regard to the judgment of the Subordinate Judge holding them as private lands. In such a case therefore it will be very difficult to hold that the tenants have kudiwaram rights. Viewed in this background, it clearly emerges that where the rights relating to possession are to be statutorily safeguarded till the rights of the parties are settled by the issue of patta, no interference by appointment of receiver could be made. But if there are no such rights as has been found by me, what difficulty could there be in appointing a receiver? Surely it cannot be suggested that all rights between the landlord and the tenant will be kept in abeyance till actually the patta proceedings come to an end. It is in this connection I wish to note the decision in Letters Patent Appeals Nos. 21 of 1972 and 20 of 1973, wherein the Division Bench has clearly held that the mortgagee-defendant was not entitled to retain possession until the application for patta before the Settlement Officer was decided inasmuch as the suit is one for redemption and that it was open to the mortgagee to set up a title adverse to the mortgagor. But this decision has not been considered by the Court below In its proper perspective, in that, the Court below has, stated that it related to a case of mortgagee who was not in possession to set up title adverse to that of the mortgagor and on that basis it sought to draw a distinction The distinction seems to be without any difference. If a mortgagee could not set up title adverse to that of the mortgagor how can the case of a landlord and tenant be different? The tenant is equally estopped from setting up adverse title to that of the landlord. A series of decisions by this Court have repeatedly laid down that where a patta is granted, it is in recognition of the principle of existing right and it is needless for me to refer to all these cases because that is well-settled. Therefore, Mr. Sankaran is not correct when he contended that Tamil Nadu Act XXVI of 1963 makes a departure from other Acts of similar nature and confers a new right. There is no question of conferment of new right. Both Tamil Nadu Act XXVI of 1967 and XXX of 1963 follow the very same pattern as Tamil Nadu Act XXVI of 1948. The only point of distinction is that more stringent tests are prescribed with regard to the grant of patta. One thing that is striking in all these cases is, Section 3 which says that 'with effect on and from the notified date and save as otherwise expressly provided in this Act... (b) the entire inam estate... shall stand transferred to the Government and vest in them free of all encumbrances etc.' Where therefore patta is issued it relates back to the date of notification. Therefore it is not correct to contend on the part of Mr. Sankaran that till patta is issued the rights of the landlord to recover rent would also get suspended.

11. Yet another point which distinguishes Kazimar Periya Pallivasal though its Trustee M. Mir. Hamidulla Hussaini v. K.A.S. Arumugam : AIR1976Mad45 . is, that it related to a suit for appointment of receiver. In the instant case a declaration and per-pectual injunction are also asked for. These two reliefs are sufficient enough to warrant the appointment of receive pending disposal of the suit if circumstances warrant so or if it is just and convenient within the meaning of Order 40, Rule 1, Civil Procedure Code. In State of Madras v. Kasthuri Ammal (1974) 1 M.L.J. 139. it has been laid down as follows :

It is needless to say that the rights of parties have got to be determined as on the date the cause of action arose, and viewed in that perspective, the supervening event, viz., the introduction of Act XXX of 1963 cannot abridge or modify the right of the plaintiff as against the first defendant. But that as it may, even assuming that Act XXX of 1963 must be held to have enmeshed the anterior rights of the plaintiff, the question for consideration is whether the plaintiff is not entitled to maintain her action for compensation and whether the civil Court is not entitled to entertain the action.

In answering that, at page 145 in paragraph 15, it was held as follows:

Therefore, the second contention of the defendants to non-suit the plaintiff' is a futile one and has therefore been rightly rejected by the trial Court. Consequently, the first defendant now succeeded by the third defendant, cannot escape its liability to pay, compensation to the plaintiff for the suit site....

This decision undoubtedly supports the stand of the appellant.

12. Relating to the applicability of the Tamil Nadu Public Trusts Act (LVII of 1961), Section 2 (13) states in defining 'inam land' after setting out the meaning as follows:

2 (13) (iv)...Put does not include any inam land on which full assessment of revenue has been levied under the Madras Inams (Assessment) Act, 1956.

As already seen this is a case in which full assessment has been levied. Therefore, this can no longer be characterised as 'inam land', I am saying this only for the limited purpose of the relief to be afforded to the appellant herein, whatever may be the ultimate result with regard to the question of grant of patta. However, what Mr. Sankaran, would, point out is that this section and Section 2 (28) are the only two places wherein inam land is referred to under the Act and therefore, it cannot be contended, that the provisions of the Tamil Nadu Public Trust Act world not apply. I. am unable to appreciate this argument. Section 2 (13) is very emphatic in its; terms. If under Exhibits A-29, 34 and 35 to 42 full assessment has been levied, certainly it cannot form part of inam land. The fact that this assessment came to be levied after Act XXVI of 1963 does not in any way belittle the claim of the appellant concerning his relief for the appointment of receiver. Nor again is Mr. Sankaran correct when he refers to Section 58 read with Section 27 (4). No doubt Section 58 stated as follows:

Except as otherwise provided in this Act, no civil Court, shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by the authorised officer, the Registrar, the Rent Court, the Rent Tribunal or other authority.

Section 27 (41 is to the following effect:

Notwithstanding anything contained in Sub-section (3), if the trustee of a public trust apprehends the removal of the produce by the cultivating tenant from the threshing floor in contravention of the provisions of Sub-section (2), such trustee may make an application to the authorised officer requesting that an officer may be deputed to make the division of the produce.

A careful reading of the latter section shows a trustee may make an application to the authorised officer requesting that an officer may be deputed to make the division of the produce. Certainly the relief asked for, namely, the appointment of receiver and injunction can never be granted by the authorised officer under this Act. I am fortified in my conclusion by referring to the decision in C.M.A. No. 259 of 1970 which was confirmed in Letters Patent Appeal Nos. 59 and 60 of 1970. Therefore, Section 58 cannot again stand in the way of the appellant But on the question of res judicata, the lower Court, in my view has not correctly appreciated the scope of Section 58 (2) of the Tamil Nadu Act XXVI of 1963. Merely because some of the tenants were not parties to those proceedings of the said Court wherein it was held that the lands were private lands it cannot be held to be not binding. The legal effect of that decision will be, prima facie that the reliefs of injunction and appointment of receiver could be afforded by the civil Court in order to render justice. I have got to necessarily stress this aspect of rendering justice because the tenants for several faslis have been playing the game of hide and seek armed with interim orders and they have been doing all the damage they could possibly do and thereby depriving the appellant-trust of its legitimate share. Therefore I have to necessarily conclude that these circumstances would be enough to bring the case within the meaning of 'just and convenient' as contemplated under Order 40, Rule 1. The lower Court thoroughly failed to exercise its jurisdiction in declining the reliefs to the appellant.

13. Therefore, setting aside the judgment of the lower Court. I appoint Mr. K. Rangaraju and Mr. S. Saravanan, Advocates of the Mayuram Bar as Receivers to be incharge of Maruvathur and Kondathur villages respectively. They are appointed as Receivers pending disposal of the 4 suits namely O.S. No. 9 of 1974, O.S.No. 10 of 1974, O.S.No. 91 of 1975 and O.S.No. 92 of 1975 on the file of the Sub-Court, Mayuram. They will take charge of the crops in the suit lands in this and future faslis, have the same harvested through the respective respondents (defendants) to realise the share of the appellant/plaintiff) under the respective lease deeds and deliver the same to the appellant (plaintiff).

14. I make it clear that there will be no harvest by the respondents (defendants) except through the Receivers as aforesaid.

15. The civil miscellaneous appeals will stand allowed. However, I make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //