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Kazimar Periya Pallivasal Through Its Trustees M. Mir Hamidulla Hussaini and ors. Vs. K.A.S. Arumugam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1976Mad45; (1975)2MLJ454
AppellantKazimar Periya Pallivasal Through Its Trustees M. Mir Hamidulla Hussaini and ors.
RespondentK.A.S. Arumugam and ors.
Cases ReferredOwen v. Homen
Excerpt:
- .....in question or to be more specific in the instant case when an investigation as to the grant of a patta is pending before the tribunals created under act xxx of 1963. there is a fallacy in this argument. it is not as if that as on the date when the suit was instituted and even so as on date, there is a dispute as regards the ownership of the property or its possession-what is sought to be agitated before the statutory tribunals is as to who is entitled to a ryotwari patta to the lands in question- strong reliance, however, is placed upon a passage in md. mustafa marakaycr v. udayanachi animal : (1968)2mlj58 . veeraswami, j. (as he then was), while considering the scope of similar provisions under the madras estates abolition act (xxvi of 1948), expressed his opinion in the following.....
Judgment:

T. Ramaprasada Rao, J.

1. The Kazimar Periya Pallivasal, Kazimar Street, Madurai, represented by its trustees, who are the plaintiffs in O.S. No. 388 of 1968 on the file of the Subordinate Judge, Madurai are the appellants. The plaintiffs filed a bare suit for the appointment of a receiver for the suit lands and for certain ancillary directions in the following circumstances. The Pallivasal owns properties in Iruvathanallur limits, Madurai District, and the defendants are said to be the lessees in occupation of such lands belonging to the pallivasal which they have been cultivating on a warano basis. After the passing of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, (Madras Act XXX of 1963), the inams came to be vested in the Government under Section 3 of Act XXX of 1963 and in consequence thereof and as ordained by the provisions of the Act there was an enquiry as to the nature of the rights to which the plaintiffs and the defendants would be entitled to. In the first instance, the Settlement Tahsildar granted a ryotwari patta in favour of the defendants. On appeal, the appellate Tribunal set aside the order ; and a re-enquiry was directed to be made by the Settlement Tahsildar. It is now reported that on such re-enquiry patta was granted in favour of the Pallivasal, but the defendants have taken up the matter on appeal to the Tribunal (Land Tribunal, Madurai) and the same is pending there.

2. According to the plaintiffs, the defendants who were the lessees and who were cultivating the lands or a waram basis are bound to pay the waram for the lands and cash rent for the cocoanut tope and they having failed to pay the same after the date on which the above Act was notified and as the defendants have no properties of their own it would be just and convenient to grant only relief of 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 topes.

3. The defendants through the 15th defendant claimed that the plaintiffs are not inuwaramdars ; 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 for the lands as also the rent for the tope. Effectively the defence that a bare suit for the appointment of a receiver, which would impliedly oust the lawful possession of the defendants from the properties, is not maintainable and that the suit is barred by the provisions of the Madras Act XXX of 1963.

4. On the above pleadings the following issues were framed:

1. Whether the suit as framed is maintainable ?

2. Whether the plaintiff is entitled to melwaram ?

3. Whether the suit is barred by Act XXX of 1963 ?

4. To what relief is the plaintiff entitled?

Additional Issue:

Whether the plaintiff is entitled for the appointment of a receiver for the suit properties as prayed for in the plaint ?

The Court below held that the defendants are in actual possession of the suit lands and their possession is admittedly lawful. It also found that no receiver could be appointed on the only ground that the defendants are poor and they may not be able to pay all the arrears of rent in one lump sum. On the question of maintainability of the action, the Court held that it was not maintainable and in its discretion expressed the view that as there was no complaint of acts of waste on the part of the defendants, it was neither just nor convenient to appoint a receiver. In the result the suit was dismissed. It is as against this, the present appeal has been filed.

5. Mr. Sundaram Iyer, learned Counsel for the appellants, based on the analogy of a similar sister enactment viz., the Madras Estates (Abolition and Conversion into Ryotwari) Act (Madras Act XXVI of 1948) contends that the plaintiffs as landholders should be deemed in law to be in possession of the suit lands ; and fictionally and notwithstanding the induction of Act XXX of 1963 their possession as landholders should be deemed to be continuous and in that view they have a present right to seek for the relief of appointment of a receiver so as to protect and safeguard their interests. On the question of maintainability he would say that though the relief is not one normally sought for, yet, the arm of justice could be extended in deserving cases by such appointment of receiver, though the relief asked for is the only relief in a is. Contending contra, Mr. Parasaran, learned Counsel for the respondents brought out the main distinction between the working of the two enactments and urged that though the purpose of both the legislations is similar, yet the manner and the modus operandi of their working is distinct and separate. Whilst under Madras Act XXVI of 1948, there is no forum prescribed in the matter of adjudication of the rights to obtain patta in so far as a ryot is concerned, he points out that under Madras Act XXX of 1963 a special Tribunal is created for such enquiries and for the ultimate grant of such patta to the tenant in occupation ; and when this distinction is borne in mind, the point in controversy could easily be visualised and appreciated. Furthering his contention, the learned Counsel would say that as on the date of institution of the present action neither the respondents nor the appellants could project an existing right which is coroprehendable in law as an enforceable right, it would be a travesty of the exercise of jurisdiction by Courts if a receiver is appointed for the mere asking of it. Relying upon precedents of this and other Courts the learned Counsel submits that a suit for the appointment of a receiver simpliciter is unknown to law and is a strange and a queer request. He therefore, sustains the ultimate conclusion of the Court below that the suit is not maintainable not only under the common law but also because of the special provisions contained in Madras Act XXX of 1963.

6. It is common ground that the civil Courts have no jurisdiction to grant a patta either under Madras Act XXVI of 1948 or under Act XXX of 1963. Though a forum has not been created for such grant of pattas to persons in occupation of the land under Act XXVI of 1948, yet by practice, the Tribunals created by the statute for the grant of such pattas to the landholder, were enabled to enquire into the competence of an individual in possession of the land to secure such a patta from the same Tribunals which were constituted under that Act to grant such pattas under Sections 12 to 14 to the landholder. In juxtaposition to this, we have a special provision in Act XXX of 1963. Section 8 of Act XXX of 1963 says that subject, to the provisions of Sub-section [2), every person who is lawfully entitled to the kudiwaram in an inam land immediately before the appointed day whether such person is an inamdar or not shall, with effect on and from the appointed day, be entitled to ryotwari patta in respect of that land. In order to effectuate this provision, a certain hierarchy of officers is created by it who are ordained and enabled to determine the lands in respect of which any person is entitled to a ryotwari patta. Section 11 says so and authorises the Assistant Settlement Officer to enquire into the claims of any person for ryotwari patta under this Act in respect of any inam land and render a decision thereon-Further appeals as against his decision are provided for as is seen from Clause (3)' of Section 11 and Section 30 of the Act. It is therefore clear, as was pointed out by a Bench of our Court in State of Madras v. Ramalingaswami Madam : (1969)2MLJ281 . ' We have already pointed out that the grant of a ryotwari patta under the Act is a right created under the Act and that the machinery provided under the Act is the only remedy for obtaining ryotwari patta.' The plaintiffs, when they came to Court,, were not clothed with any right known to law to seek for a relief in civil Courts. Under Section 3 of Madras Act XXX of 1963, with effect on and from the appointed day and save as otherwise expressly provided in the Act, every inam shall stand transferred to the Government and vest in them free of all encumbrances. We are not quoting Section 3 in extenso. A proviso, however, added by Section 2 of the Tamil Nadu Act XXIX of 1971 says that the Government shall not disposses 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 basic provision in Act XXX of 1963 positively makes out that on and after the notified date quondam rights of the inamdar as 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 this interrugnam 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. It is elementary that no relief can. be asked on rights which are in the nature of expectancies or bare anticipations. No one is sure whether the plaintiffs or the defendants would get the ryotwari patta in accordance with the provisions of the Act. But one thing however is clear that on and from the notified date the inan has vested in the Government free from all encumbrances. Such being the legal as well as the statutory position, it would be idle for the plaintiffs to seek for relief on the basis of a bare expectancy and ask for the sole and the only remedy of appointment of a receiver. Mr. Sundarain Iyer however says that the Courts have the power de hors the common law to appoint a receiver in certain situations.

7. Reliance is placed upon a passage in Halsbury's Laws of England, Volume 32, Simonds Edn. para 633, at page 394, which runs thus:

Receivers are constantly appointed pending the trial of an action or pending the Constitution of a legal representative of a deceased person, or, if necessary, pending a reference to arbitration or the trial of an interpleader issue or pending proceedings in another Court.

The last sentence is pressed into service. According to the learned Counsel as proceedings are pending in another forum, though of course the creature of a statute yet it cannot said that the civil Court has no jurisdiction to appoint a receiver.

8. Again referring to a passage in Kerr on Receivers, 13th Edn., at page 5, the learned Counsel says that the object sought by such appointment is to safeguard the property for the benefit of those entitled to it. It would not be out of place for a civil Court to exercise jurisdiction even at the threshold if it is satisfied that in another forum, though not a civil Court, disputes are pending in the matter of the recognition of rights of parties to the property in question or to be more specific in the instant case when an investigation as to the grant of a patta is pending before the Tribunals created under Act XXX of 1963. There is a fallacy in this argument. It is not as if that as on the date when the suit was instituted and even so as on date, there is a dispute as regards the ownership of the property or its possession-What is sought to be agitated before the statutory Tribunals is as to who is entitled to a ryotwari patta to the lands in question- Strong reliance, however, is placed upon a passage in Md. Mustafa Marakaycr v. Udayanachi Animal : (1968)2MLJ58 . Veeraswami, J. (as he then was), while considering the scope of similar provisions under the Madras Estates Abolition Act (XXVI of 1948), expressed his opinion in the following lines:

In effect both possession and title of the person who is entitled to a ryotwari patta are saved from the effect of the notification under Section 3 (b) and the ownership in such lands continues in the quondam landholder notwithstanding the notifications and the fact that it is subject to determination of the character of the land for which he-will be entitled to a. ryotwari patta.

In our view, this passage is being torn out of its context so as to serve the interests of the plaintiffs. No doubt, if the landholder obtains a patta on the completion of the enquiry by the statutory Tribunals then if he were in possession of the lands on the notified date he would certainly continue in possession thereof as quondam landholder. But if, on the other hand, the land is in the possession of lessees or tenants the position is different. In view of Section 3 of Act XXX of 1963 the ownership of an inam is automatically transferred to the State and it vests in them free from all encumbrances. The vesting of the inam and the lands comprised therein rests as it is on a statutory fiction by which both the ownership and the possession becomes automatically transferred on such notification, only to slope down on the shoulders of the person entitled to a ryotwari patta which entitlement could be found only after investigation by the tribunals. It is in this light we state that the right, if any, which either the landholder or the person in occupation has obtained under the provisions of Act XXX of 1963, is postponed and that there is an interregnum between a notified date and the date when the Tribunals determines as to who is entitled to a ryotwari patta. During the nebulous period, neither the plaintiffs nor the defendants could, in a manner known to Jaw, project any right known to law and seek relief as if such rights are existing enforceable rights.

9. The learned author Kerr in the same edition referred to above at page 7 contemplated a difficult case like the one under consideration. He says : 'Where the object of the plaintiff is to assert a right to property of which the defendant is in-enjoyment, the case presents more difficulty. The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation.' (Reliance has been placed upon Marshall v. Charleis. (1920)1 Ch. 520

10. If, therefore, the plaintiffs seek for a relief at a time when they are not clothed with an enforceable legal right and when they could obtain such a right only on the completion of an enquiry by the statutory Tribunals, and when admittedly such an enquiry is still pending, the plaintiffs cannot seek for relief in a Court on the projection of such inchoate and incomplete rights. In our view, he has merely a bare expectancy in his favour and that is not equated generally in a civil Court to an enforceable right.

11. This leads us on to the question whether a bare suit for receivership is maintainable at all. Under the Civil Procedure Code, an application for appointment of a receiver is generally made as an interlocutory measure when a main relief is pending, adjudication by the Court. It is made either under Order 40, Rule 1 or under Section 94, Civil Procedure Code. There can be no doubt whatsoever that even Section 94, Civil Procedure Code, is not a substantive provision, but a provision which speaks of the existence of a main relief for the grant of a supplemental relief by the appointment of a receiver-Undoubtedly, Order 40, Rule 1, contemplates a present action for one or the other of the parties to it to seek for the appointment of a receiver. That is not the case here. The question is whether Section 94, Civil Procedure Code, by itself would enable the plaintiff to the relief of appointment of a receiver without a substantive suit laid by him for any comprehensive purpose otherwise. Section 94 appears in Part VI of the Civil Procedure Code, under the caption ' Supplemental proceedings '. The relevant portion reads thus:

In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property and make such other interlocutory orders as may appear to the Court to be just and convenient.

12. The use of the word ' other' in Clause (e) of Section 94 is very significant. That word gives the clue to the content of section 04. Though prima facie part VI appears to be substantive in nature and original in application, yet Clause (e) of Section 94 makes it clear that the relief enumerated in Clauses (a), (c) and, (d) are only interim in nature meaning thereby that these reliefs mentioned in Section 94 could only be granted as an aid or ancillary to a main relief sought for by the person seeking the interlocutory order.

13. In Ramanatha Iyer's Law Lexicon, the word ' supplementary proceeding' has been explained thus:

A supplementary proceeding is a separate proceeding in an original action in which the Court where the action is pending is called upon to exercise its jurisdiction in aid of the judgment in action.

It appears to us that if any person seeks relief under Section 94 and inter alia asks for the appointment of a receiver, the condition precedent for making such a request is the existence of a main action which was already initiated by the person seeking the interlocutory relief. This Situation is absent in the instant case.

14. It cannot be said that Section 151, Civil Procedure Code, could be invoked an such circumstances. The special excludes the general is elementary principle of law. When the Civil Procedure Code has provided for grant of such a relief of appointment of receiver both under Section 94. and under Order 40, Rule 1, it would be improper to invoke the inherent jurisdiction of the Code under Section 151 to entertain a bare suit for the appointment of a receiver and hold that such interlocutory orders can be made in the absence of a request for any other main relief.

15. In State of Orissa v. Ramchandra : AIR1964SC685 the Supreme Court said that an interim relief can be granted only in aid of and as auxiliary to the main relief which may 'be available to the party on final determination of his rights in a suit

16. It therefore follows that it would be difficult for the plaintiff to ask for a bare interlocutory relief of appointment of a receiver. Again there is abundant authority of both our Court and other Courts for the proposition that such a request in the abstract and solely for the purpose of wresting property from the person in lawful possession ought not to be encouraged.

17. A learned single Judge of the Madhya 'Pradesh High Court in Jhatalomel Khundromal v. Bhagwan Prasad Tiwari A.I.R. 1955 N.U.C 3355, strongly expressed the view that to file a suit only for the appointment of receiver is queer on the face of it and proceedings for the appointment of a receiver are termed supplemental proceedings in Civil Procedure Code and Section 94 contains provisions for general powers of the Court in regard to various kinds of interlocutory orders which it can pass in course of proceedings before it and supplemental proceedings are a means to an end and not an end in themselves.

18. In Chandreswar Prasad Narasinh Singh v. Bishesuiar Pratap (1920) 58 IND.CAS. 405 : 5 P.L.J. 513 a Division Bench of the Patna High Court said that a Court has no jurisdiction to appoint a receiver in respect of property regarding which no litigation is pending.

19. In Ramswarup Das v. Ramesha Das : AIR1950Pat184 another Division Bench of that Court observed:

The power conferred on the Court by Order 40, Rule 1 (a) to appoint a receiver refers only to the appointment of a receiver in respect of property in regard to which litigation is pending, that is to say, as long as the suit remains pending. The Court has no power to direct the appointment of a receiver, or the continuance of the receiver already appointed, to bold charge of the property after the litigation is determined.

Obviously, the learned Judges had in view the situation in respect of property in regard to which litigation is pending in the same Court in which the application for receiver is made when they said 'in respect of property in regard to which litigation is pending.' The litigation should be pending in the same Court in which the interlocutoiy relief is asked for.

20 In Chockalingam Pillai v. Pichappa Chettiar : AIR1926Mad155 Coutts Trotter, C.J., accepted the contention raised before him that a civil Court cannot by way of receivership dowhat it cannot do by way of decree in the suit.

21. In this case, the Court cannot grant a patta when the pending litigation before the statutory Tribunals is in relation to grant of patta. If the civil Court cannot grant a patta, it cannot grant the relief of appointment of receiver.

22. In Kochunni v. Kunnukuttapunni : AIR1964Ker86 , the learned Judges after referring to a passage of the House of Lords in Owen v. Homen (1853)4 H.L.C 997 observed thus:

Though the issue of injunction and the appointment of receivers are two forms of specific relief under Section 5 of the Specific Relief Act, 1877, a stronger case is required for the latter than for the former. In appointing a receiver the Court wrests the possession from the defendant and assumes management of the property.

Hence in cases involving ouster of a pet-son in exclusive possession, the applicant has to make out special circumstances necessitating special protection of his rights by the appointment of a receiver ; and as such dispossession may be wrong done to the defendant, the Court ought to be very reluctant to grant such a prayer. A fortiori in a case where the plain tiff has no rights in praesenti but has only a bare expectancy in future for obtaining patta he cannot prematurely ask for the appointment of a receiver, resulting in the disturbance of certain rights in the person who is in lawful possession of the property.

23. On the ground that the suit is not maintainable and on the basis that no edifice could be put up without a foundation and as there is no enforceable substantial right in the plaintiff for him to enforce it in a substantive action and as no interlocutory relief by way of appointment of a receiver can be asked without a pre-existing action in which the substantial right is being agitated, we are of the view that the suit is not maintainable and the relief asked for is not only premature but misconceived. The appeal therefore fails and is dismissed. There will be no order as to costs.

24. We are compelled before parting with this case to give a direction to the Minor Inams Abolition Tribunal to dispose of C.M.As. Nos. 82 to 95 of 1972 on its file before the end of March, 1975 and to report the same to this Court.


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