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High Court of Judicature at Madras
K. SAMPATH
Govindaswamy Pillai
Versus
Marudan
S.A. No. 1162 of 1984
Decided On :Decided on: 23-04-1998
TENANCY - SUIT FOR PERMANENT INJUNCTION - DECREE FOR RECOVERY OF POSSESSION - RES JUDICATA - JURISDICTION OF CIVIL COURT - SECTION 16-A OF THE TAMIL NADU AGRICULTURAL LANDS RECORD OF TENANCY RIGHTS ACT, 1969 - RECOGNITION OF TENANCY - SECTION 6-A OF THE TAMIL NADU CULTIVATING TENANTS PROTECTION ACT, 1955 - TRESPASSER'S POSSESSION - INJUNCTION.
Fact of the Case:
The respondent, a tenant, filed a suit for permanent injunction against the appellant, the landlord, to restrain him from interfering with his possession of the suit properties. The appellant had obtained a decree for recovery of possession against the respondent in an earlier suit, O.S. No. 222 of 1966, which the respondent had remained ex parte in. The respondent contended that the delivery of possession recorded in the execution petition was only a paper delivery and that he had continued in possession of the properties from a very long time. The appellant contended that the respondent was a trespasser and had no right, title, or interest in the property.
Finding of the Court:
The court held that the decree in O.S. No. 222 of 1966 operated as res judicata and that it was not open to the respondent to contend that he was not bound by the decree directing him to deliver possession of the property. The court also held that the Civil Court had jurisdiction to pass a decree for recovery of possession in respect of a cultivating tenant, as Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, which barred the jurisdiction of Civil Courts in such matters, was not retrospective in operation and did not apply to suits instituted prior to its coming into force. The court further held that the respondent had failed to prove that the recording of delivery of possession in the execution petition was not a recording of actual delivery and that the appellant had recognized the respondent as his tenant. The court concluded that the respondent was a trespasser and was not entitled to the decree for injunction prayed for by him.
Issues: 1. Whether the decree in O.S. No. 222 of 1966 operated as res judicata and barred the respondent from contending that he was not bound by the decree directing him to deliver possession of the property? 2. Whether the Civil Court had jurisdiction to pass a decree for recovery of possession in respect of a cultivating tenant? 3. Whether the recording of delivery of possession in the execution petition was a recording of actual delivery or only a paper delivery? 4. Whether the appellant had recognized the respondent as his tenant?
Ratio Decidendi: 1. An ex parte decree operates as res judicata and is binding on the parties, unless it is set aside or modified by a competent court. 2. Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, which barred the jurisdiction of Civil Courts in suits for recovery of possession of land from cultivating tenants, was not retrospective in operation and did not apply to suits instituted prior to its coming into force. 3. In the absence of a plea of fraud, the court cannot ignore the evidence afforded by the Court officials to the effect that delivery has been effected, on the mere allegation that there was no actual delivery. 4. The mere fact that a landlord has received payments from a tenant without prejudice to his right to execute a decree for recovery of possession does not amount to recognition of the tenancy.
Final Decision: The court allowed the second appeal, set aside the judgments and decrees of the courts below, and dismissed the suit O.S. No. 448 of 1981 on the file of the District Munsifs Court, Valangiman at Kumbakonam.
1. The defendant is the appellant.
2. The suit O.S. No. 448 of 1981 was filed by the respondent/plaintiff before the District Munsif of Valangiman at Kumbakonam, for a permanent injunction against the appellant herein on the following averments:
He was a tenant cultivating in the suit properties. He had executed a written agreement of tenancy with one Subramania Pillai and after Subramania Pillai, he continued as a tenant under the appellant. The appellant filed O.S. No. 222 of 1966 before the District Munsif of Valangiman at Kumbakonam, for recovery of possession against Subramania Pillai and the respondent herein. The respondent remained ex parte in the suit. The appellant herein accepted that the respondent was a tenant of the suit properties, but obtained a decree in the suit for recovery of possession, executed the decree and some how managed to record delivery and the execution petition was closed. The delivery was only symbolical and the respondents possession was not disturbed. While so, the appellant attempted to interfere with his possession and enjoyment on 19.9.1981. The suit was therefore filed for permanent injunction.
3. The appellant resisted the suit contending inter-alia as follows:
The suit properties had been endowed to Arthajama Kattalai of Sri Palani Andavar Koil, Kanjanoor, under a partition deed dated 20.5.1916. The deed provided one Vadamalai Pillai to manage the properties. Vadamalai Pillai permitted his brother Vasudeva Pillai to manage the properties. Vadamalai Pillai died in 1951. The appellant was the son of Vadamalai Pillai. Vasudeva Pillai died in 1963. The appellant, who was entitled to the management, found that one Subramania Pillai, brother-in-law of Vasudeva Pillais son, Ramanathan had fraudulently obtained a settlement deed on 26.7.1962 conferring title upon Subramania Pillai, as if the properties were the separate properties of Vasudeva Pillai. The appellant therefore filed a suit in O.S. No. 222 of 1966 against Subramania Pillai and the respondent herein for recovery of possession. Since he was cultivating the properties under Subramania Pillai, the respondent was impleaded as a party. However, the respondent chose to remain ex parte and there was a compromise entered into between the appellant herein and Subramania Pillai as per the terms of which, Subramania Pillai agreed to deliver possession. Pursuant to the compromise decree the appellant levied execution in E.P. No. 95 of 1979. The objections raised by the respondent were negatived and delivery was ordered on 21.4.1980. The appeal in C.M.A. No. 25 of 1980 on the file of the Sub-Court, Kumbakonam, filed by the respondent herein, was dismissed on 25.7.1981. Subsequent to the dismissal of the appeal, the respondent forcibly entered into possession of the properties and continued in possession. He had no right, title or interest in the property. His possession was that of a trespasser and he was not entitled to permanent injunction.
4. The trial Court framed necessary issues and after trial, the learned trial Judge held that the respondent was in possession of the properties, that the delivery pleaded by the appellant was only a paper delivery, that the respondent continued in possession of the properties from a very long time and that he had not committed trespass and by his judgment and decree dated 28.1.1983, the learned District Munsif decreed the suit.
5. On appeal by the appellant in A.S. No. 46 of 1983, the learned Subordinate Judge of Kumbakonam, dismissed the appeal by judgment and decree dated 8.3.1984. Against the decision of the learned Subordinate Judge, the present Second Appeal has been filed.
6. At the time of admission, the following substantial question of law was framed for decision in the Second Appeal:
“Whether the Courts below have not properly appreciated the decree in O.S. No. 222 of 1966 on the formal relationship of the landlord and tenant”?
7. Mrs. Jayashree Narasimhan, the learned counsel for the appella
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