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Madras High Court
Ramesam
Tallapragada Appa Rao
Versus
Kasangi Venkappa
Decided On 17 March, 1930
Order 21, Rule 100 - Dispute over division of father's property - Possession and trespass - Police assistance in execution - Tenancy claims - Irregularities in lower court's findings
Fact of the Case:
The case involved a dispute over the division of the father's property between two half-brothers. The plaintiff claimed a two-thirds share based on a division made during the father's lifetime, while the defendant contended for a two-way split. After the father's death, the defendant refused to recognize the plaintiff's share, leading to a suit for possession of specific items on the grounds of trespass.
Finding of the Court:
The court found irregularities in the lower court's findings, including a different case being made out, the decree-holder being compelled to start his case, and vague findings that did not support specific claims. The court set aside the lower court's orders and awarded costs to the petitioners.
Issues: The issues involved the disputed division of the father's property, possession and trespass claims, police assistance in execution, and the validity of tenancy claims made by the petitioners.
Ratio Decidendi: The court's decision was influenced by the irregularities in the lower court's findings, the lack of evidence supporting specific claims, and the absence of dissimilar cases suggested by the claimants.
Final Decision: The court set aside the lower court's orders and awarded costs to the petitioners in one case, with no costs in the others.
Ramesam, J.
1. These petitions are filed against the order of the Subordinate Judge of Ellore on applications filed under Order 21, Rule 100, Schedule 1, Civil P.C. (E. A. Nos. 199 and 201 to 206) in O.S. No. 98 of 1926. E.A. No. 206 and a. portion of E.A. No. 205 were dismissed and the rest of the petitions were allowed.
2. The opposite party namely the decree-holder in the main suit files these revision petitions.
3. The facts out of which these petitions arise may now be stated. The main suit is a dispute between two persons who are half-brothers. The plaintiff is the younger brother and the defendant is the elder.
4. The plaintiffs case was that during the lifetime of the father in 1924 there was a division of the fathers property by the father himself according to which two-thirds share was allotted to the plaintiff and one-third to the defendant, and each was enjoying his separate share, the plaintiffs enjoyment being through his father as he was a minor.
5. After the fathers death the elder brother refused to recognize the younger brothers right to more than half a share and contended that the division was in two shares, with the result that a suit had to be filed on behalf of the plaintiff by his maternal uncle in 1926. The suit was tried and the plaintiffs case was found to be true and it was decreed. I am informed that the defendant has appealed to the High Court and that the appeal is pending. It appears that in the main suit itself the defendant made no suggestion that there were any tenants on the suit land and that they should be made parties in the suit. Incidentally I may observe that the suit is not one for partition but for possession of separate and definite items on the ground that they fell to the plaintiffs share and were trespassed upon by the defendant.
6. In 1928 execution was taken out of the decree and an amin was deputed to deliver possession to the plaintiffs next friend. He and the amin went to the lands on 23rd November. The decree-holder and the amin were resisted.
7. Ex. A is the application of the amin to the Station House Officer of Pen-tapadu for police help. This is a very important document in the case. So I will set forth a portion of this application Accordingly, when I went to deliver the properties, defendant and men belonging to the defendant obstructed me with a, bad intention of putting the minors guardian out of possession of the properties and stealing away the crops raised on the scheduled lands. If I deliver them against the defendants will they are ready to commit danger to lives with brute force. The Court has passed orders in E.A. No. 1484 of 1927 to remove such obstruction and deliver, if the defendant should obstruct unlawfully in this way. The above warrants have to be executed in accordance with the above orders and without breach of peace. So .1 pray that your honour may kindly be pleased to render such help so that the warrants may be executed.
8. The Subordinate Judge had previously ordered on 18th November that police help may be taken. This is the order referred to in Ex. A. After such order, there is nothing high-handed in the acts of the amin and the decree-holder. Thereupon the Station House Officer deputed a head constable and two police constables to help the amin to preserve peace.
9. At this stage it is important to observe that the obstructors were described in Ex. A as "the defendant and men belonging to the defendant." Who are these men belonging to the defendant?
10. They must be either farm servants of the defendant or tenants of the defendant. In either case unless they are occupancy tenants they are bound by the decree : see Jafirji Ibrahimji v. Miyandi Mangal A.I.R. 1922 Bom. 273, and Jairam Jadowji v. Nouroji Jamsedji A.I.R. 1922 Bom. 449, which I prefer to Erra v. Gubbay [1920] 47 Cal. 907 which is also distinguishable. Otherwise they would not be described as men belonging to the defendant. On 24th November the amin effected delivery of possession and
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