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Vellachamy Ambalam Vs. Paramasamy Ambalam - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1962)2MLJ142
AppellantVellachamy Ambalam
RespondentParamasamy Ambalam
Cases ReferredCraig v. Kanssen L.R.
Excerpt:
- .....all that civil court could do, within the province of the common law, was to decide whether the tenant subsequently inducted into possession (plaintiff-appellant) could claim that his possession ought not to be interfered with until the revenue court decided the matter, one way or the other. it is true that the revenue court did ultimately decide the matter in favour of the respondent in the appeal. his counsel (sri ramaswami) hence strenuously contends that there is no further scope for the grant of even a temporary injunction.5. but, as the learned advocate-general rightly points out, the controversy here is really between two alleged cultivating tenants, both of whom prima facie claim protection under the cultivating tenants protection act. it was held by rajagopala ayyangar, j. in.....
Judgment:

Anantanarayanan, J.

1. These proceedings are intimately related to each other, in the sense that the Second Appeal is instituted by a party to a civil suit for an injunction, while the Revision proceedings are instituted by the landholder who was a party to proceedings for restoration of possession by an alleged cultivating tenant, in the Revenue Court, in respect of the same piece of property. As is well-known., Madras Act XXV of 1955 specifically bars the jurisdiction of the Civil Court in matters within the scope of the Act, except to a specified extent, under Section 6 of the Act. Section 6-A makes provision for the transfer of certain suits to the Revenue Court by the civil Court itself, where the civil Court finds that the defendant is a cultivating tenant entitled to the benefits of the Act. The respective ambits of jurisdiction of the civil and Revenue Courts in this matter have been the subject of decisions of this Court, and may well lead, in certain cases, to some confusion and difficulty. The present case is an instance in which there is a certain difficulty arising from the facts, because the parties really at controversy are not merely the landholder and the cultivating tenant inducted into possession by the landholder, but also a prior cultivating tenant who claims that the subsequent stranger was introduced into possession by a lease which was not valid, and which was not in accordance with law. For these reasons I am dealing with the Second Appeal and the Revision proceedings together by means of this common judgment. I shall first set forth the facts, with reference to the Second Appeal, and then proceed to consider the proper order that should be made both in the Second Appeal and in the Revision proceedings.

2. Very briefly stated, the facts are that the concerned properties are nanja lands in Tamaraipatti village, which originally belonged to one Rajaram. The parties to the suit for injunction were the plaintiff, who is the subsequent lessee under two lease deeds, dated 2nd June, 1958, and the alleged original cultivating tenant under the prior landholder Rajaram. It is the common case between the parties that Rajaram sold the lands to Ponnuswami and his wife Sulochana, under two sale deeds Exhibits A-3 and A-4 on 23rd April, 1958. The suit for injunction was resisted by the alleged prior tenant (Paramaswami Ambalam) on the ground that he was a tenant under a valid lease from Rajaram since 1952, that he was a tenant holding over entitled to protection under the Madras Cultivating Tenants Protection Act, and that, under the circumstances, neither Ponnuswami nor his wife (subsequent alienees) could validly induct into possession any party like the plaintiff in suit. Nor could any injunction be granted in favour of the plaintiff, upon that state of rights. What happened in the first Court was that the learned District Munsif of Madurai Taluk went in great detail into the question whether there was a surrender of possession by the defendant (Paramaswami Ambalam) to the original owner, as alleged by the plaintiff. The learned District Munsif found that this surrender was established, hence that the plaintiff was validly inducted into possession by the subsequent landlords and that the suit for injunction was consequently liable to be decreed. The learned District Judge, in appeal, took precisely an opposite view of the issue of surrender of possession, after an elaborate discussion of the merits. The learned District Judge, in substance, dismissed the suit for injunction. .

3. As far as the Revenue Court is concerned, what happened was that the learned Revenue Divisional Officer referred, with some particulars, to the pending civil suit for injunction, but finally came to the conclusion that Paramaswami Ambalam (alleged prior tenant) was entitled to restoration of possession in respect of these lands. A very important and significant circumstance is that the subsequent tenant, namely, plaintiff, appellant in the Second Appeal, was not a party at all to the proceedings in the Revenue Court. Admittedly, no notice of those proceedings-was ever issued to him. The Revision proceedings are instituted by the two subsequent landholders (Ponnuswami and his wife Sulochana) canvassing the propriety of the order of the Revenue Court, which granted the relief of restoration of possession.

4. As the learned Advocate-General for the appellant in the Second Appeal has fairly conceded, the trial Court totally misconceived its functions when it went elaborately into the question whether the alleged surrender of possession by the prior cultivating tenant was true, and when it decided against that contention. In disputably, that was precisely the kind of contention which the Revenue Court alone could decide in a competent proceeding, and the jurisdiction of the civil Court in that matter is clearly barred by virtue of Section 8 of the Act. It seems to me that, with great propriety, the learned District Munsiff could have transferred the suit also to the Revenue Court under Section 6-A of the Act, and thus saved for all the parties concerned the needless complications that have subsequently ensued. However this might be, the learned District Judge, in appeal, seems to have been equally in error in proceeding in great detail into the factum of the alleged surrender, and coming to a conclusion opposite to that of the trial Court. Actually, the jurisdiction of the civil Court here is a very limited one. When the alleged prior tenant, (defendant in the suit) claimed the protection of the Act, and also claimed that he had instituted proceedings for restoration of the holding to him all that civil Court could do, within the province of the Common Law, was to decide whether the tenant subsequently inducted into possession (plaintiff-appellant) could claim that his possession ought not to be interfered with until the Revenue Court decided the matter, one way or the other. It is true that the Revenue Court did ultimately decide the matter in favour of the respondent in the appeal. His Counsel (Sri Ramaswami) hence strenuously contends that there is no further scope for the grant of even a temporary injunction.

5. But, as the learned Advocate-General rightly points out, the controversy here is really between two alleged cultivating tenants, both of whom prima facie claim protection under the Cultivating Tenants Protection Act. It was held by Rajagopala Ayyangar, J. in Dharamalinga Moopanar v. Anusamba Bi-Trust (1957) 1 M.L.J. 211, that the provisions of Tanjore Tenants and Pannaiyals Protection Act (XIV of 1952) were also applicable to tenants who were let into possession after the Act came into force. In other words, this decision has definitely given recognition to the principle that a tenant subsequently inducted into possession by the landholder may be able, in certain circumstances, to claim the protection and benefits under the Act, precisely like a tenant who is alleged to be previously in possession. The argument of the learned Advocate-General may be put, in substance, as follows. Undoubtedly, the plaintiff-appellant will be bound, if notice had been issued to him in the proceedings before the Revenue Court. Had such notice been issued, and had he been made a party to those proceedings the case for an injunction would have to be abandoned altogether. But the argument is that, perhaps deliberately, the alleged prior tenant (respondent) did not take out notice to the plaintiff-appellant in the proceeding before the Revenue Court for restoration of the holding to him. The learned Advocate-General relies upon the dicta of Lord Greene, M. R., in Craig v. Kanssen L.R. (1943) 1 K.B. 256 , to the effect that an order made in proceedings wherein the party entitled to be heard was not even served with process, is null and void, and not a mere irregularity. Sri Ramaswami for the respondent contends, per contra, that the plaintiff-appellant would not be entitled to plead that restoration should not be ordered by the Revenue Court, even if he had been fixed with notice, for the simple reason that the plaintiff-appellant was not a person falling within Exception (iii) to Section 4 (2) of the Act, namely,

if subsequent to the 1st December, 1953, the landlord has bona fide admitted some other cultivating tenant to the possession of land and such other tenant has cultivated the land before the commencement of this Act.

The argument is that, on the very facts of the record, it is clear that the plaintiff-appellant was not inducted into possession before the commencement of the Act, and that he did not cultivate the land before that date. But the learned Advocate-General contends that, in any event, the claim of the plaintiff-appellant would fall within the scope of Section 4 (5), and that since Sub-section (5) as enacted attracts to itself the provisions of Sub-section (4), the plaintiff-appellant will be entitled to argue that restoration should not be ordered in favour of the alleged prior cultivating tenant. However this might be, I think it is fairly obvious that, where a subsequent tenant has been inducted into possession by the landlord, and he is actually on the land claiming rights under the Act, he is a proper and necessary party to proceedings by the prior tenant for restoration under the provisions of the Act. If he is not impleaded, and no notice goes to him it cannot be said that a decision arrived at in his absence would be binding on him at all. That, in effect, would render the decision of the Revenue Court infructuous; for there would be nothing to prevent the subsequent lessee from rushing to the same Court with a petition for protection of his alleged rights, as cultivating tenant under the same Act. I desire to record that Sri Ramaswami for the respondent in the appeal does not accept this contention; his interpretation is that the proceedings would be binding upon the subsequent tenant, in any event. But I do not think that it could be seriously disputed that the subsequent tenant is a necessary and proper party to the proceedings for restoration, to whom notice of those proceedings must go, affording him an opportunity for participation in the interests of justice.

6. It is not necessary., in this view of the case, to go' into the merits of the two Revision Petitions filed by the respective landlords. The order hence, both in the Second Appeal and in the Revision Petitions, will be as follows:

7. In the Revision Petitions the order of the Revenue Divisional Officer will be set aside and the petitions for restoration themselves remitted to the Revenue Court for proper and comprehensive disposal. In order to enable this, the plaintiff-appellant in the Second Appeal is hereby impleaded as a party respondent to those Petitions (Order 1, Rule 10, Civil Procedure Code. He is at liberty to contest those petitions for restoration upon any ground available to him, except the plea of limitation, since I find from the record that the prior tenant did institute his petition for restoration within the time allowed under the Act. The Revenue Court will hence deal with the matter fully and comprehensively afresh, after hearing the contentions raised by the subsequent tenant why restoration should not be ordered.

8. As far as the suit itself is concerned, it might be a desirable and adequate course to transfer the suit also to the Revenue Court for disposal under Section 6-A of the Act, since substantially the same matter is in issue. But, in the actual circumstances, I do not think it necessary to do this. The Second Appeal will be allowed instead, by granting a decree for injunction, for purely a temporary period, to enure in favour of the plaintiff-appellant until the disposal of the proceedings for restoration before the Revenue Court. It is needless to say that if those proceedings succeed, the injunction will no longer be operative and the parties must work out their rights. In view of the time for which these proceeding have been pending, (the Revenue Divisional Officer will dispose of the remanded restoration applications as expeditiously as circumstances permit. The parties will bear their owns costs, an all these related proceedings here.

No leave.


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