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Narasimha Chettiar Vs. Muthuswami Gounder and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtChennai High Court
Decided On
Reported in(1958)2MLJ216
AppellantNarasimha Chettiar
RespondentMuthuswami Gounder and ors.
Cases Referred and Chinnayanandaswamigal v. Sinnangi Konar W.P. No.
Excerpt:
- .....to be withdrawn after restoration of all the items. narasimha chetty has thereupon preferred this civil revision petition and has also asked for stay of the operation of the order of the sub-collector in c.m.c. no. 64 of 1957. interim stay has been granted and the opposite party has entered appearance and both the petitions are coming up for disposal.5. to decide the controversy we must first of all bear in mind the relevant provisions of madras act xxv of 1955. it applies to all cultivating tenants. section 3 lays down that the landlords are not to evict cultivating tenants and runs as follows:(1) subject to the next succeeding sub-sections, no cultivating tenant shall be evicted from his holding or any part thereof, during the continuance of this act, by or at the instance of his.....
Judgment:
ORDER

Ramaswami, J.

1. This Civil Revision Petition and the Application for stay arise from an order made by the Sub-Collector of Pollachi in C.M.C. No. 64 of 1957.

2. The facts are. - The lands involved in these proceedings are said to belong to Rajalakshmi Ammal. The cultivating tenant of these lands was Muthuswami Gounder. Bangaruswami Chettiar, the son of Rajalakshmi Ammal, filed an application under Section 3(4)(a) of the Madras Act XXV of 1955 in C.M.C. No. 43 of 1956, before the Sub-Collector, Pollachi, for evicting Muthuswami Gounder on the ground of non-payment of arrears of rent. In that application Bangaruswami Chettiar testified that the land in question belonged to him by virtue of a partition. The learned Sub-Collector recorded evidence let in by both sides and came to the conclusion that there were no arrears of rent due from Muthuswami Gounder and dismissed the application.

3. Subsequently Rajalakshmi Ammal who is said to have gone on a pilgrimage to Benares in the course of the above proceedings, filed O.S. No. 11 of 1957 in the Sub-Court, Coimbatore, claiming arrears of rent from the present tenant Muthuswami Gounder in respect of the same lands and for the same period. It is common ground that these proceedings before the Sub-Collector, Pollachi, were not referred to in the plaint in O.S. No. 11 of 1957. Rajalakshmi Ammal applied for the appointment of a Receiver in the Sub-Court, Coimbatore. A Court Receiver was appointed in I.A. No. 25 of 1957 on 7th February, 1957. The Receiver took charge of the properties on 8th February, 1957 and engaged the Village Munsif to look after the lands. The Receiver then authorised the Village Munsif to harvest the standing crops and reported the matter to Court. The Receiver then sought the directions of the Court to lease out the properties and obtained necessary orders. The Receiver then after due publicity held an auction on J7th April, 1957. The successful bidder was the son-in-law of this Rajalakshmi Ammal by name Narasimha Chetty. The Receiver put the successful bidder in possession of the properties after obtaining a lease-deed in anticipation of approval by the Sub-Court, Coimbatore. The Sub-Court confirmed the lease by its order, dated 15th June, 1957- Thereupon Muthuswami Gounder filed C.M.C. No. 64 of 1957 before the Revenue Divisional Officer, Pollachi, for restoration of possession on 1st May, J957 stating that he had been dispossessed by Narasimha Chetty on 17th April, 1957.

4. The learned Revenue Divisional Officer once against went into the question of arrears of rent and held that Muthuswami Gounder was not in arrears, which was also the finding arrived at by him in C.M.C. No. 43 of 1956. He held that Muthuswami Gounder should be restored to possession immediately and there was no justification for ousting him out of the property. He also held that the respondents were colluding only with a view to oust him from the protection afforded by Act XXV of 1955. Muthuswami Gounder also deposited into Court a sum of Rs. 2,475 as Per order of the Sub-Collector, being the rent due for 1956-1957. On a petition made to the Sub-Collector he further ordered on 30th September, 1957 that except items 1 and 4, measuring about Ac. 4.75 cents in which there were standing crops, all the other items of property should be restored to Muthuswami Gounder immediately. Items 1 and 4 were to be restored after harvest. The amount in deposit was to be withdrawn after restoration of all the items. Narasimha Chetty has thereupon preferred this Civil Revision Petition and has also asked for stay of the operation of the order of the Sub-Collector in C.M.C. No. 64 of 1957. Interim stay has been granted and the opposite party has entered appearance and both the petitions are coming up for disposal.

5. To decide the controversy we must first of all bear in mind the relevant provisions of Madras Act XXV of 1955. It applies to all cultivating tenants. Section 3 lays down that the landlords are not to evict cultivating tenants and runs as follows:

(1) Subject to the next succeeding sub-sections, no cultivating tenant shall be evicted from his holding or any part thereof, during the continuance of this Act, by or at the instance of his landlord, whether in execution of a decree or order of a Court or otherwise.

(2) Subject to the next succeeding sub-section, Sub-section (1) shall not apply to a cultivating tenant-

* * * * *(b)who has done any act or has been guilty of any negligence which is destructive of or injurious, to, the land or any crop thereon or has altogether ceased to cultivate the land; or

(c) who has used the land for any purpose not being an agricultural or horticultural purpose; or

(d) who has wilfully denied the title of the landlord to the land.

Explanation 1. - A denial of the landlord's title under a bona fide mistake of fact is not wilful within the meaning of this clause.

4 (b) : On receipt of such application, the Revenue Divisional Officer shall, after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in a case falling under Clause (a) or Clause (aa) of Sub-section (2) in which the tenant had not availed of the provisions contained in Sub-section (3), the Revenue Divisional Officer may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under this Act inclusive of such costs as he may direct. If the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under Sub-section (3)(b). If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order for eviction.

Section 4 deals with the right to restoration of possession, subject to the limitations and qualifications laid down therein. Section 6 deals with the bar of jurisdiction of civil Courts and states:

No civil Court shall, except to the extent specified in Section 3(3), have jurisdiction in respect of any matter which the Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

6. On this state of the statute, the two points for determination relevant for the purpose on hand are (i) what is the nature of the suit which can be filed in regard to the recovery of arrears of rent in the civil Court, and (ii) whether in such suits a Receiver can be appointed by the civil Court and what are the limits of the powers of the Receiver in such suits.

7. Point 1. - Subject to the bar contained in Section 6, aggrieved landlords can file suits for arrears of rent, and subject, however, to the following limitations. A suit can be filed for arrears of rent not covered by the provisions of Madras Act XXV of 1955. Thus, for instance in the case of a registered lease, suits can be filed for recovery of arrears of rent for a maximum period of six years and which cannot be the case under the Act. In regard to the lease years covered by the Act and in regard to which deposit of arrears had been directed and had not been complied with, under the Act the remedy of the landlord is only to get the tenant evicted. But 'what about the arrears of rent itself not deposited? The landlord can file a suit I in the civil Court for recovery of such arrears and on obtaining a decree he can execute it in the manner provided by the Code of Civil Procedure. But incidentally the question is raised in this case whether it will be open to the landlord once the Revenue Divisional Officer has decided whether arrears of rent are due or not, to file a suit in the civil Court and re-agitate the same matter viz., that arrears of rent are due notwithstanding the decision of the Revenue Divisional Officer. This point is raised because the application of the principle of res judicata depends upon the question whether the matter substantially in issue having been heard and finally decided, can be re-agitated. The argument of the learned advocate for the Revision Petitioner is that the decision, whether the arrears are due or not, is only incidental and collateral and not a final determination by the Revenue Divisional Officer against whose order, it has to be remembered, no appeal is provided for but only a Revision to the High Court. But having regard to the principle of res judicata and the provisions of hierarchy of Tribunals for deciding this matter and a revision being provided to the High Court and the continuance of the relationship of landlord and tenant itself being made dependent upon the question whether there are arrears or not, it seems to me that it is a mere quibble to say that all the requirements of res judicata are not fulfilled. But I need not joint out that having obtained a decree in the civil Court, subject to the limitations set out above, and the cultivating Tenant, is otherwise eligible under the Act to continue as a cultivating tenant, the only mode of execution against him will be not to evict him but only to attach his movables, etc, subject of course to the provisions of the Code of Civil Procedure in that behalf, to recover the arrears.

8. Bearing these principles in mind if we examine the facts of this case it was certainly open to Rajalakshmi Ammal to file a suit in the civil Court for recovery of arrears of rent subject to the limitations set out above.

9. Point 2. - The next question which arises is whether a Receiver can be appointed by the civil Court in a suit for recovery of arrears of rent. It is now well-settled law that even in a money suit a Receiver can be appointed; see Chitaley and Annaji Rao's Civil Procedure Code, 5th Edition, Vol. 3, page 3221. A Receiver may be appointed in a mere suit for money, citing Nedungadi Bank v. Official Assignee (1928) 56 M.L.J. 95 : I.L.R. 52 Mad. 938 : A.I.R. 1929 Mad. 184; Lahanu Bai v. Harakchand A.I.R. 1915 Nag. 98, and A.R.A.R.A.L. Chettiar Firm v. U Sin A.I.R. 1935 Rang. 398, wherein the case of a suit on a promissory note it was held that a Receiver can be appointed even in respect of properties to which the defendant has a right, provided it is just and convenient. In Ramaswami Naik v. Ramaswami Chetti (1907) 17 M.L.J. 201 : I.L.R. 30 Mad. 255, a Receiver was appointed on the ground that the property was the subject-matter of suit and it was subsequently found out that the defendant was only personally liable and still it was held that a Receiver could well be retained for realizing the decretal amount. In Hari Ram v. Firm Maddu Mal A.I.R. 1938 Lah. 12, it was held that the appointment of a Receiver is not limited to property over which the plaintiff has a lien.

10. This appointment of Receiver can be made subject to the five well known principles:

(1) The appointment of a Receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or absolute; it is a sound and judicial discretion, taking into account all the circumstances of the case, exercised for the purpose of promoting the ends of justice and protecting the rights of all parties interested in the controversy and in the subject-matter and based upon the fact that there is no other adequate remedy or means of accomplishing the desired object of the judicial proceeding. Mathusri v. Mathusri Sivagnanathammal v. Arunachalam : (1911)21MLJ821 .

(2) The Court should not appoint a Receiver except upon proof by the1 plaintiff that prima facie he has very excellent chance of succeeding in the suit. Firm of Raghubir v. Naringan A.I.R. 1923 Lah. 48, Siaram Das v. Mohabir I.L.R.(1899) Cal. 279, Muhammad Casim v. Nagarajan : AIR1928Mad813 , Bunwarilal v. Molilat (1922) 68 I.C. 656.

(3). Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he is reasonably clear and free from doubt. It has been truly said that a Court will never appoint a Receiver merely on the ground that it will not do harm; Manghammal v. Miakan Bai A.I.R. 1933 Sind 230, Bidaramji v. Keshoramji A.I.R. 1939 Oudh 61, Sheoamber Ban v. Mohan Ban A.I.R. 1941 Oudh 328.

(4) An order appointing a Receiver will not be made where it has the effect of depriving a defendant of a de facto possession, since that might cause irreparable wrong. It is only if the property is exposed to danger and loss and the person in possession has obtained it through fraud or force, the Court will interpose by Receiver for the security of the property Nilamdar v. Mahal Behari : AIR1927Pat220 .

(5) The Court on the application for a Receiver looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.

11. In this case though on principle it can be held that a Receiver can be appointed even in money suit, as a matter of fact such appointment has been held unjustified by Ganapatia Pillai, J., in A.A.O. No. 116 of 1957 and he has terminated that Receivership.

12. The final point for consideration is, in the case of a Receiver appointed in regard to a matter of this nature what is the limit of the Receiver's powers? A Receiver can exercise all the powers except that of dispossessing the cultivating tenant. It was open to him for instance in the management of the estate for which he is appointed Receiver by Court on behalf of both parties and which property he holds in custodia legis, to get that cultivating tenant attorn to him inasmuch as he has stepped into the shoes of the landlord for the time-being. But he cannot dispossess him in contravention of the provisions of Madras Act (XXV of 1955) and if he has to evict that cultivating tenant in pursuance of his management of the estate, he must do so only under the provisions of that Act. But the learned advocate for the Revision Petitioner asks what is to happen if the cultivating tenant refuses to attorn to the Receiver, denying the title of the landlord? The answer is very simple. In such a case the cultivating tenant would cease to be a cultivating tenant and cannot invoke the protection of the Revenue Divisional Officer. The basis of cultivating tenancy is co-extensive with the tenant recognising the title of the landlord. In this case an endeavour was made to show that the tenant refused to attorn and must be deemed to have denied the title of the landlord and so he was rightly thrown out by the Receiver. But the facts show the contrary. In fact Explanation I to Section 3(2)(d) says that even if the tenant did so under a bona fide mistake of fact, he would be protected from his folly. Then it is argued that if the tenant walks out from the holding, what is to happen? The answer is equally simple. If the tenant voluntarily surrenders possession, effaces himself or fades out from the picture he would cease to be a cultivating tenant liable to be protected under Act XXV of 1955. That is why an attempt was made in this case once again to show that the tenant abandoned the Shalai and walked out of the holding and acquiesced in the action by the Receiver and the coming in of this Revision Petitioner in his place. If that were so, it would have been a voluntary surrender and such a surrender would disentitle the cultivating tenant from the protection of the Act see Kuppammal v. Vellingiri Gounder (1957) 1 M.L.J. 293 : I.L.R. (1957) Mad. 448, and Chinnayanandaswamigal v. Sinnangi Konar W.P. No. 699 of 1956 (decided by Rajagopala Ayyangar, J.). The learned Revenue Divisional Officer has found that there was no such voluntary surrender and I agree with him on the facts of this case.

13. The net result of this analysis is that the Receiver was not entitled to dispossess the cultivating tenant Muthuswami Gounder and when he had done so, the cultivating tenant is entitled to be restored to possession by the Revenue Divisional Officer, Pollachi. The Civil Revision Petition and the stay application have got to be dismissed and are hereby dismissed but in the circumstances without costs.

14. I have already alluded to the order of the Revenue Divisional Officer, dated 30th September, 1957 and which has been summarised above regarding the restoration of Ac. 4-75 cents, items 1 and 4, after harvest and the immediate restoration of the other items. The order made regarding items 1 and 4 need not be disturbed. In regard to the rest of the items, it is now pointed out by the Revision Petitioner that subsequently they have been brought under cultivation and a large amount has been spent in that behalf. The other side agrees that possession of the other items may be handed over subject to an enquiry being held by the Revenue Divisional Officer regarding the amount of compensation to which the Revision Petitioner would be entitled for cultivating the lands and that amount being deposited as a condition precedent for handing over possession to Muthuswami Gounder by the Revision Petitioner. The Revenue Divisional Officer, Pollachi, is clothed with powers to make an expeditious enquiry into the legitimate expenses incurred by the Revision Petitioner for bringing the lands other than items 1 and 4 under cultivation or any portion thereof and fix the same and then direct its deposit as a condition precedent for possession of the said lands being handed over to Muthuswami Gounder. On the said amount being deposited the Revision Petitioner will be at liberty to withdraw that amount.

15. Civil Revision Petition and Civil Miscellaneous Petition disposed of accordingly.

16. The amount deposited by the Revision Petitioner as advance rent at the time of the auction will be allowed to be taken by him subject to the equity if any Between herself and the landlord. The amount will be allowed to be withdrawn after notice to Rajalakshmi Animal and she being given an opportunity to prefer objections if any before the learned Sub-Judge, Coimbatore.


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