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Govindarajan and ors. Vs. K.A.N. Srinivasa Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 720 of 1976, against order of Sub-J., Kancheepuram in Appeal Suit No. 7 of 1973
Judge
Reported inAIR1977Mad402
ActsMadras Cultivating Tenants Protection Act; Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 - Sections 3(1), 3(9) and 3(10); Code of Civil Procedure (CPC), 1908 - Order 23, Rule 3; Madras Hindu Religious and Charitable Endowments Act, 1951; Berar Regulation of Agricultural Leases Act, 1951 - Sections 15(2); Berar Regulation of Agricultural Leases (Amendment) Act, 1953 - Sections 16, 16-A and 16-B
AppellantGovindarajan and ors.
RespondentK.A.N. Srinivasa Chetty and ors.
Cases ReferredMuniyandi v. Rajangam Iyer
Excerpt:
.....compromise would be appealable under order xliii rule (1)(m)--order xxiii rule 3--court when can record a compromise.;madras record of tenancy act (1969) section 16-a--not retrospective.;there could be not doubt that if an appeal is settled out of court, the decree following the order recognising the compromise out of the court would be a consent decree within the meaning of section 96(3) of the code of civil procedure. if the court accept the compromise and records the same that will be an end of the dispute itself and the consequential order passed thus becomes a consent order. if an appeal were to be preferred against this order recording the compromise, there is no need for preferring a separate appeal against the consequential decree made as the decree itself would be in the..........the defendants from interfering with his possession and enjoyment. the defendants in this suit filed a written statement contending that they are the direct lessees under namasivaya chettiar for the past several years and the plea of trespass by the plaintiff is false and incorrect. the defendants also stated that the plaintiff was never in possession of the suit properties and that they had been in possession and enjoyment as tenants and that, therefore, the suit is liable to be dismissed. the defendants also submitted that they are cultivating tenants, that they are entitled to the benefits of the cultivating tenants protection act, and, that, therefore, the civil court had no jurisdiction to entertain the suit. though in this written statement the defendants also pleaded that.....
Judgment:
1. Defendants 1 to 4 are the appellants. The first respondent plaintiff filed O. S. No. 379of 1970 on the file of the District Munsif of Kancheepuram for a declaration that he is the lessee of the suit lands on the basis of a lease deed dated 15-10-1964 given by the owner, Namasivaya Chettiar. The lease was stated to be for a period of ten years. When the lessor and his brothers tried to take forcible possession of the properties, the plaintiff filed O. S. No. 37 of 1970 on the file of the District Munsif of Kancheepuram for an injunction restraining the lessor and his brothers from interfering with his possession and enjoyment. When that suit was pending, the dependants in. S. No. 379 of 1970 tried to trespass and interfere with the peaceful possession and enjoyment of the suit properties and, therefore, he filed O. S. No. 379 of 1970 for a declaration that he is a lessee in respect of the suit lands and for an injunction restraining the defendants from interfering with his possession and enjoyment. The defendants in this suit filed a written statement contending that they are the direct lessees under Namasivaya Chettiar for the past several years and the plea of trespass by the plaintiff is false and incorrect. The defendants also stated that the plaintiff was never in possession of the suit properties and that they had been in possession and enjoyment as tenants and that, therefore, the suit is liable to be dismissed. The defendants also submitted that they are cultivating tenants, that they are entitled to the benefits of the Cultivating Tenants Protection Act, and, that, therefore, the Civil Court had no jurisdiction to entertain the suit. Though in this written statement the defendants also pleaded that they were not parties to O. S. No. 37 of 1970 and that none of the allegations in the plaint in that suit will have any bearing in this suit or affect the rights of parties, later on it appears that these defendants filed an application voluntarily and impleaded themselves as defendants 6 to 11 in that suit.

2. The trial Court, on a consideration of the oral and documentary evidence, held that the plaintiff was a lessee from the owner in respect of the suit lands, that he was in possession and enjoyment by cultivating the suit lands and that the defendants were neither the tenants under Namasivaya Chettiar nor were they in possession and enjoyment at any time. The trial Court also held that since the defendants were not the tenants, they are not entitled to the benefits of the Madras Cultivating Tenants Protection Act and since the suit is for a declaration and injunction against the trespassers, the suit was maintainable. Though the trial Court gave also a finding that the trespass on 2-7-1970 by the defendants had been proved and the suit was filed only on 4-7-1970, the suit was decreed declaring the plaintiff as the tenant and granting an injunction alone without directing the defendants to deliver possession. This was probably for the reason that though the defendants trespassed on 2-7-1970 which was mentioned as the cause of action for the suit, it was also stated by the plaintiffs in evidence that they had taken possession of the properties later on and they were cultivating and in possession pending the suit. Against the decree in O. S. No. 379 of 1970, defendants 1 to 4 preferred A. S. No. 7 of 1973 on the file of the learned Subordinate Judge of Kancheepuram. In the meantime, O. S. No. 37 of 1970 on the file of the District Munsif, Kancheepuram, filed by the plaintiff in this case against the owners was transferred to the Subordinate Judge's Court, Kancheepuram and renumbered as O. S. No. 71 of 1975. In that suit in which the present defendants-appellants had impleaded themselves as parties, a compromise memo was filed by the plaintiff and defendants 6 to 17 in that suit. As already stated, defendants 6 to 11 in that suit are defendants 1 to 6 in O. S. No. 379 of 1970 which was decreed by the trial Court. Under this compromise, defendants-appellants before me disclaimed all interests in the suit lands and undertook not to interfere with the plaintiff's possession of the same. In view of this undertaking given in the compromise, the plaintiff agreed to exonerate the appellants herein from the claim in O. S. No. 37 of 1970. Under this compromise, which was filed in O. S. No. 37 of 1970, the defendants also agreed to withdraw the appeal in A. S. No. 7 of 1973 on the file of the Subordinate Judge's Court, Kancheepuram. This compromise, among others, was signed by defendants 1, 3 and 4 and the counsel for the second defendant who are the appellants in this second appeal. This compromise was entered into on 4-4-1974. Thereafter, the plaintiff as respondent in A. S. No. 7 of 1973, filed I. A. No. 350 of 1975 in A. S. No. 7 of 1973 for recording the compromise and to dismiss the appeal as withdrawn. The appellants filed a counter contending that the compromise was not signed by all the parties concerned, that it amounted only to an undertaking to withdraw and could not be treated as having concluded the appeal itself. It was also stated that though the compromise memo filed by the parties contained a statement that the defendants have disclaimed any interest in the suit lands and undertook not to interfere with the plaintiff's possession, there was an oral agreement under which the defendants were to be permitted to remain in possession of the suit lands without any disturbance by the plaintiff. The learned Subordinate Judge held that all the parties have signed the document and that the signing by the Advocate on behalf of the second defendant was legal and valid and there was an enforceable compromise between the parties. The Court below also overruled the other objections raised by the defendants. Accordingly, the lower appellate Court held that there was an enforceable compromise between the parties and recorded the compromise and dismissed the appeal as having been settled out of Court. At the same time the lower appellate Court, also gave a finding on the merits in the appeal and confirmed all the findings of the trial Court. Ultimately, in the end of the judgment, the lower appellate Court said that the compromise is recorded and the appeal is dismissed in one paragraph and in another paragraph it stated that the appeal failed and it was dismissed as withdrawn. The defendants have preferred this second appeal against A. S. No. 73 of 1973. But in the memorandum of grounds the appellants have questioned the finding of the lower appellate Court that there was a legally enforceable compromise which was recorded by the lower Court.

3. The learned counsel for the plaintiff-first respondent took a preliminary objection to the maintainability of the second appeal on the ground that ultimately the first appeal was dismissed as withdrawn on the basis of the compromise recorded by the Court and that, therefore, no second appeal is maintainable. On the other hand, the learned counsel for the appellants contended that the appeal was disposed of by a common order both in I.A. No. 350 of 1975 and A.S. No. 7 of 1973, that the lower appellate Court not only recorded the compromise and dismissed the appeal on the basis of that compromise but also gave a finding on the merits in the appeal itself and that, therefore, the second appeal is maintainable. He also contended that he had raised specific grounds in the second appeal itself against the recording of the compromise and that, therefore, he could question the recording of the compromise in the second appeal itself without a separate appeal against I. A. No. 350 of 1975.

4. There could be no doubt that if an appeal is settled out of Court, the decree following the order recognising the compromise out of Court would be a consent decree within the meaning of S. 96(3) of the Code of Civil Procedure. If the Court accepts the compromise and records the same that will be end of the dispute itself and the consequential order passed thus becomes a consent order. If an appeal were to be preferred against this order recording the compromise, there is no need for preferring a separate appeal against the consequential decree made as the decree itself would be in the nature of a dependent order. If ultimately the appellate Court comes to the conclusion that the order recording the compromise by the lower Court was illegal and set aside the order, the decree made in pursuance of the recording of the compromise would automatically get set at large. Therefore, the party need not file a separate appeal against the consequential decree and in pursuance of the order recording the compromise. This was also the view taken by this Court in Chinnaswami v. Thyagaraja . It was held (at p. 304):

"The substance of the matter is that although the consent to the terms of the compromise was found established in a separate order on an application under O. 23, R. 3, C.P.C., the basis of the decree in the suit was really the consent so established.........

So long as the order stands, one has to proceed upon the footing that the terms of the compromise have been consented to; and that is the foundation for the decree in the suit. The proper remedy in such a case for the party aggrieved against the order recognising the compromise is to file an appeal against it which has been provided for by the Code."

5. In this case, though the lower appellate Court also gave findings on the merits in A. S. No. 7 of 1973; since the Court below also has recorded the compromise and directed the appeal to be dismissed as withdrawn, the findings should be treated as one having no force at all and has been given only for the purpose of completeness and not for the purpose of disposing of the appeal itself. The learned counsel for the appellant was, therefore, not well founded in his contention that the appeal was also disposed of on merits. The result of it is that the second appeal is not maintainable against the consent order of withdrawal of the first appeal.

6. But, as already stated, the appellants have not only questioned the findings on merits but also questioned the recording of the compromise by the lower appellate Court. The appeal is, therefore, not only directed against the findings on merits but also the findings on the petition to record the compromise and recording the same. The appellants are, therefore, entitled to maintain this second appeal as one directed against the recording of the compromise in I. A. No. 350 of 1975. It may also be pointed out that the respondents could not be said to have been prejudiced in any way by reason of the fact that the appeal has been registered as if it were a second appeal against a. S. No. 7 of 1973. The order recording the compromise is an appealable order under O. XLIII, R. 1(m), C.P.C. The appellants would have been, therefore, entitled to file the appeal as of right whereas the second appeal is maintainable only on a question of law. The appellants-defendants seem to have satisfied this Court even on the question of law and had maintained the second appeal. The court-fee payable for an appeal against the order recording the compromise is also much lower than the court-fee payable and paid in the second appeal. The learned counsel for the appellants is, therefore, permitted to treat this second appeal as an appeal against I. A. No. 350 of 1975 itself. Accordingly, this matter is dealt with in that appeal.

7. The suit properties are situated in Kuruvimalai village, Kancheepuram taluk, Chingleput District. The Government, in exercise of the powers under S. 3(1) of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969(Act 10 of 1969) notified Kuruvimalai village as one of the villages in respect of which the record under that Act shall be prepared, maintained and revised in accordance with the provisions of that Act and the rules framed thereunder. In respect of the suit properties, the final record of the tenancy right was published in the Gazette under Ss. 3(9) and 3(10) on the 13th Dec., 1972 when the suit O. S. No. 379 of 1970, was pending. In respect of the suit lands, defendants 1, 3 and were shown as tenants. The Gazette publication was produced and filed by the defendants in the first appellate Court and was marked as Ex. B-2 in this case. The Record of Tenancy Rights Act was also amended by Tamil Nadu Act 34 of 1972 which introduced S. 16-A barring the jurisdiction of Civil Courts and that section reads as follows:

"Bar of jurisdiction of civil courts--No Civil Court shall have jurisdiction in respect of any matter which the record officer, the District Collector or other officer or authority empowered by or under this Act has to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act."

8. The learned counsel for the appellants contended that in view of the final Gazette publication under S. 3(9) showing the defendants as the tenants in respect of the suit properties and by reason of ouster of Civil Court's jurisdiction under S. 16-A the lower appellate Court has no jurisdiction to record the compromise even if the compromise was valid in law. Of course, the learned counsel also contended that the compromise itself was not valid in law on the ground that it was got executed by fraud and undue influence and also on the ground that the compromise was not signed by the 2nd defendant but it was signed by his advocate. I am afraid the defendants could not be permitted to question the compromise on the ground of fraud or undue influence. If a compromise was in fact arrived at, though it may be avoidable at the instance of the defendants on the ground of fraud or misrepresentation when the compromise is filed under O. XXIII, R. 3 with a request to record the same by the opposite party, the Court could not go into the question of fraud or undue influence. The only ground on which the Court could refuse to record the compromise is on the ground that the compromise itself is opposed to public policy. A similar question came up for consideration before the Division Bench of this Court in a case reported in Kuppuswami Reddi v. Pavanambal, . This

Court held (at p. 728 of AIR):

"That under O. XXIII, R. 3 C.P.C., a compromise cannot be attacked by allegations that it is a voidable compromise brought about by fraud, undue influence and duress. Provided the compromise is lawful, that is, not contrary to law, the court is obliged to record it. The mere fact that it may be voidable is to reason for a court refusing to record it."

It was not the case of the defendants in this case that the compromise itself was opposed to public policy or contrary to law. It was only stated that the same is voidable at their instance because of fraud and coercion. The Court below could not have, therefore, refused to record the compromise on that ground. The learned counsel is also not well founded in his contention that because the Advocate had executed the compromise on behalf of his client, it is not valid in law. In another decision reported in Madras Co-operative Printing and Publishing Society Ltd., Madras, 1976-1 Mad LJ 136. I have held following the decision of the Supreme Court in C. A. No. 43 of 1968(), that an advocate appearing for a party always has an implied authority to enter into a compromise on behalf of his party. The only limitation is if there was any written prohibition or limitation, he will have to act within that prohibition or limitation. The learned counsel for the appellants in this case is not able to point out any such limitation on the authority of the Advocate to enter into the compromise in this case. We have, therefore to proceed on the basis that there was a legal and valid compromise between the parties.

9. Even so, the learned counsel contended that the Civil Court's jurisdiction to give a finding whether the plaintiff or the defendant is a tenant is ousted under S. 16-A and the Court would have no jurisdiction to give such a finding whether on contest or under a compromise between the parties. By consent or agreement, the parties cannot confer jurisdiction on a Court which it lacked nor can the parties achieve what is contrary to law by consent or agreement. The Court below lacked jurisdiction to record that compromise accordingly. In this connection, he also relied on the final publication of the Gazette Notification under S. 3(9) and (10) wherein defendants 1, 3 and 4 were shown as tenants in respect of the suit properties. The learned counsel also relied on a decision of this Court reported in Muniyandi v. Rajangam Iyer, 89 Mad LW 249: (AIR 1976 Mad 287) on the scope of S 16-A and some of the decisions of the Supreme Court rendered under the Tamil Nadu Buildings (Lease and Rent Control) Act. In the decision relied on by the learned counsel State of Punjab v. Amar Singh, , with reference to the jurisdiction of the Rent

Controller to make an order of eviction on the basis of a compromise memo filed that under the provisions of the Act, the Rent Controller had to satisfy himself as to the existence of the conditions on which alone an order for eviction could be asked for by a landlord. Merely on the basis of a compromise, the Rent Controller could not order an eviction. Meeting another argument that the order even though based on a compromise was as valid and binding as one passed on contest, the Supreme Court observed (at p. 1007 of AIR):

"After all by consent or agreement. parties cannot achieve what is contrary to law and a decree merely based on such agreement cannot furnish a judicial amulet against statutory violation. For by private agreement, converted into a decree, parties cannot empower themselves to do that which they could not have done by private agreement alone."

But, I am unable to agree that the ratio of this decision is applicable to the compromise entered into in Civil Courts. The Rent Controller is an authority constituted under a special enactment and his powers and jurisdiction are circumscribed by the provisions of the Act itself. It is because of that reason the Supreme Court in that decision and in the earlier decisions held that the Rent Controller had to be satisfied with reference to the existence of the grounds for eviction. But that principle could not be applied to a Civil Court could record a compromise irrespective of the fact whether the Court is satisfied on the merits or not. In fact, the language under O. XXIII, R. 3, C.P.C., showed that all matters to be decided in a suit can be settled by means of a compromise. It is also to be kept in mind that there is no prohibition either in regard to Tenancy Act or in any other provision against the surrendering or renouncing the tenancy right by any persons. Therefore, even if the defendants had any tenancy right, it would have been open to them to surrender their tenancy rights or renounce the same under a compromise with any other party. The recording of the compromise in this case, therefore, could not be questioned on any ground of conferring jurisdiction on the Court below by consent of parties.

10. The learned counsel for the respondents sought to support the order of the Court below recording the compromise also on two other grounds. Firstly, S. 16-A is not applicable to suits which had already been instituted and pending on the date when the Amending Act came into force and secondly the subject-matter of the present suit was outside the scope of the provisions of S. 16-A and that, therefore, it is not barred under that provision.

11. Section 16-A was introduced by Amending Act XXXIV of 1972 which was published in the Fort St. George Gazette on 27-11-1972. The suit in this case was filed on 4-7-1970 and the decree of the trial Court is dated 5-12-1972 and that day by the first appellate Court recording the compromise is dated 19-11-1975.

12. Section 16-A which is extracted above is not in terms made retrospective. There is no provision also in the Act as to what should happen to the suits which are pending on the day when S. 16-A was introduced. Neither the suit had been abated nor it had been transferred to the Record Officer for disposal according to the Record of Tenancy Rights Act. In the absence of any such provision. the suit itself could not be dismissed as barred under S. 16-A. A similar question came up for consideration before this Court in Valia Raja of Edapally v. Commr. for Hindu Religious and Charitable Endowments, Madras, . In that case, the suit was filed before the District Court of South Malabar for setting aside an order modifying a scheme settled under S. 57 of Act II of 1927. Sub-section (7) of that section conferred the right of suit on the trustee or any person having interest to institute a suit to set aside or modify a scheme within six months of the date of publication Pending that suit, Madras Act II of 1927 was repealed and re-enacted as the Madras Hindu Religious and Charitable Endowments Act XIX of 1951. Though there is a provision similar to S. 57(7) of the old Act. under this new Act suit to set aside or modify the scheme will have to be filed before the Subordinate Judge's Court having jurisdiction over the area and not the District Court. The District Judge before whom the suit was filed under the old Act therefore felt that his jurisdiction to try and dispose of suits or applications, commenced under the old Act and pending before him had ceased and in that view, directed that return of the plaint. Against that order, an appeal was preferred. This court held (at pp. 380, 381 of AIR):--

"There is a long line of authorities which has laid down that a suitor has all the rights attaching to the institution of a suit in force at the time of the commencement of the suits preserved to him throughout its career. It is thus clear that a statute should not be so construed as to take away an action which has been well commenced. It is equally well recognized that it is open to the Legislature to defeat such a vested right. But it is also beyond controversy that a very strong and distinctive language should be used to have that effect, that is, either there should be express enactment depriving a suitor of that right or it must be by necessary intendment."

They then considered S. 93 of the new Act which enacted that no suit or other legal proceedings in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in the Act shall be instituted in any Court of law except under and in conformity with the provisions of the Act and held that the suit instituted in the District Court had not abated. The decision of the Supreme Court in Dewaji v. Ganapatlal, is also very apposite. A land-owner filed a suit against his tenant for recovery of possession with damages and mense profits. The suit was filed on Sept. 17, 1951. Pending the suit, the Berar Regulation of Agricultural Leases Act, 1951 was amended introducing three sections, Ss. 16, 16-A & 16-B. Relying on these provisions, the tenant contended that the determination of the question whether a person is a tenant or not was a matter entirely within the jurisdiction of the Revenue Court and the jurisdiction of the Civil Court has been ousted. The Additional District Judge who heard the suit held that the Amending Act did not affect the pending proceedings. Though a learned single Judge reversed the decision of the trial Court, the Division Bench of the High Court of Bombay held that there was no bar for proceeding with the pending suits. The Supreme Court held (at. pp. 562, 563 of AIR):

"It cannot be disputed that if the Legislature intends to oust the jurisdiction of Civil Courts, it must say so expressly or by necessary implication. We cannot find any words in Ss. 16, 16-A, and 16-B which can lead to the necessary inference that these provisions were intended to apply to appeals pending when the 1953 Act came into force. It is true that the word 'whenever' is wide but S. 16-A uses the words 'suits for proceedings' and these words do not ordinarily indicate appellate proceedings. Further, S. 16-B uses the word 'entertain' and not the words 'entertain or try any suit' as contained in S. 15(2) of the 1951 Act. If the intention was to affect pending proceedings, the word 'try' along with the word 'entertain' would have been used in S. 16-B of the 1953 Act. It seems to us that the intention was not to apply the 1953 Act to pending appeals."

Though the provisions of S. 16-B are not in pari materia with S. 16-A to the Record of Tenancy Rights Act, the ratio of this judgment is applicable. I am unable to see any ground for holding that Section 16-A is either retrospective in express terms or by implication. I am of opinion that S. 16-A does not oust the jurisdiction of the Civil Court in pending matters.

Since I have accepted the argument of the learned counsel for the respondents that S. 16-A is not retrospective in operation and would not oust the jurisdiction of Civil Courts in pending matters, it is not necessary for me to consider the other port of the argument that the subject-matter of the present suit was outside the scope of the provisions of Section 16-A. Suffice it to note the arguments of the learned counsel and leave it at that. According to the learned counsel, the various provisions of the Act, the rules and the forms prescribed and in particular the definition of "cultivating tenant" show that what would be within the jurisdiction of the Record Officer is the determination of the question whether a person is in possession of the land under a tenancy agreement, express or implied, with the land-owner. If the dispute is not between the land-owner and the tenant but between two persons who claim to be tenants of a particular land under the land-owner, the Record Officer will have no jurisdiction to decide who among them is the lawful tenant. In this connection he also distinguished the decision of this Court in Muniyandi v. Rajangam Iyer, 89 Mad LW 249: (AIR 1976 Mad 287) as one in which the dispute was between the land-owner and the tenant. On verification of the records I find that the suit was filed in that case by the land-owner as plaintiff for a permanent injunction restraining the defendant and his men from interfering with his possession and enjoyment. The defendant contended that he is a cultivating tenant in possession of the suit properties entitled to the benefit of the Cultivating Tenants Protection Act. The tenant also relied on the entry made under the Record of Tenancy Rights Act recognising him as a tenant of the suit properties and the bar of jurisdiction under S. 16-A in view of such entry in the Record of Tenancy Rights. As I said already, it is not necessary for me to decide this question in this appeal as even otherwise S. 16-A is not applicable.

13. The result is, the compromise recorded by the Court below was correct and this appeal even as against the order recording the compromise is liable to be dismissed and it is accordingly dismissed. But, there will be no order as to costs. No leave.

14. Appeal dismissed.


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