VENKAPPA BHATTA v. INTHRA CRASTA — 1973 DIGILAW 60 (KER)

Judgment :- 1. These appeals arise from O.S. 336 of 1966 on the file of the Munsiff's Court, Kasaragod. S.A. 412 of 1970 is by the second defendant therein, while S.A. 429 of 1970 is filed by the first defendant. The suit is for declaration that the plaintiff is a tenant from the family of defendants 1 to 9 in respect of plaint A schedule properties with a liability to pay the rent mentioned in the plaint-The suit has been decreed concurrently in favour of the plaintiff. The concurrent decrees are attacked in the second appeals. 2. Three points are raised on behalf of the appellants in both the appeals: (1) The suit is not maintainable as it is barred because of the order dated 22-12-1964 dismissing RIA. No. 946 of 1964 filed in OS. 49 of 1961 on the file of the Sub Court, Kasaragod; (2) The suit is barred by S.34 of the Specific Relief Act, 1963; and (3) The finding of the learned appellate judge upholding the lease of plaintiff is legally vitiated. 3. To appreciate the first contention, it is necessary to state some more facts. O.S. 49 of 61 on the file of the Subordinate Judge's Court, Kasaragod is a suit for partition to which the defendants were parties and the plaintiff was not a party. The plaint property was also the subject-matter of O. S.49 of 1961. A receiver was appointed therein to take possession of all the suit properties including the plaint property. The plaintiff filed RIA. 946 of 1964 in O. S.46 of 1961 objecting to the receiver taking possession of the plain' property putting forward his tenancy right therein. That application was dismissed by the trial court. CRP. 13 of 1965 filed against that order which was beard along with CRP. 16 of 1965 was dismissed by Vaidyalingam, J. on 11-10-1965. 4. Counsel on behalf of the appellants contended that the order passed on 22-12-1964 dismissing RIA. 946 of 1964 is a bar to this suit. Ext. B2 is the copy of the order dismissing that application, Ext. B10 being a certified copy of RIA. 946 of 1964. Though there is a vague reference to this contention by the learned appellate judge, he has not entered any finding on this question. 5. 946 of 1964 is a bar to this suit. Ext. B2 is the copy of the order dismissing that application, Ext. B10 being a certified copy of RIA. 946 of 1964. Though there is a vague reference to this contention by the learned appellate judge, he has not entered any finding on this question. 5. The submission on behalf of the appellants' counsel is based on 0.40, R.1, sub-rule (2) which reads: "Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove." The above sub-rule implies that a receiver has got a right to remove even persons who are not parties to the suit from possession of the property. The only restriction is that a receiver has no right to remove from the possession or custody of the property any person whom any party to the suit has not a present right to remove. The Section is, therefore, based on the principle that a stranger to a suit should not be removed from possession of the property by the appointment of a receiver. As against a stranger who is in actual possession the appointment of receiver is of no effect, but it is necessary that a person whose possession is sought to be interfered with by the receiver should approach the court in view of 0.40, R.1 (2), CPC., to stop the receiver from interfering with bis possession and for that purpose pray for an adjudication of bis rights. The particular method to be followed by such a person is not indicated in 0.40, R.1 (2), CPC. It can be done either by an application before the court which appointed the receiver or by instituting a separate suit with the receiver on the party array after obtaining the sanction of the court that appointed the receiver to establish his present right to possession. 6. Counsel for the appellants did not dispute these propositions. His contention was based only on these propositions and according to him when once the stranger has chosen the summary remedy by filing an application under 0.40, R.1 (2) CPC., and when be was been unsuccessful in that application it is no longer open to him to file a fresh suit to establish his rights in the property. His contention was based only on these propositions and according to him when once the stranger has chosen the summary remedy by filing an application under 0.40, R.1 (2) CPC., and when be was been unsuccessful in that application it is no longer open to him to file a fresh suit to establish his rights in the property. I cannot demur to the proposition of law canvassed by appellants" counsel. 7. In Ramaswami Pillai v. Janaki Ammal (AIR. 1923 Madras 129) Krishnan J. observed: "When property of a third parly is interfered with by an officer of the Court like the Receiver the party has ordinarily two remedies. He may apply to the Court for a summary order restraining the Receiver from interfering or he may ask leave of the Court to permit him to sue the Receiver and restrain him from interfering and for any other appropriate relief." The enquiry that is contemplated whether it be in an application or in a suit filed for the purpose is whether any of the parties to the suit has a present right to remove the third party in possession of the property. If that right is found then the third party can be dispossessed by the receiver; otherwise he cannot. The nature of the enquiry is, therefore, the same whether the third party files an application or institutes a suit for the purpose. When once the third party has chosen the remedy of filing an application and has obtained an adverse order it cannot be argued that such an order will be subject to any suit to be instituted by the third party. The proceedings have become final irrespective of the question whether that order is appealable or not. 8. The prevailing view now is that such an order is appealable under 0.40, R.1, sub-rule (1), clause (b) read with 0.43, Rule, 1, clause (s). If the matter had stood thus without any more complications I would have been compelled to accept the submission of counsel for the appellants and dismiss the suit on that ground. 9. But in O. S.49 of 1961 R. I. A. 951 of 1964 was also filed by another party regarding the possession of another item of the property which was the subject-matter of the suit. That petition also was dismissed and be had filed CRP. 16 of 1965. Vaidyalingarn, J disposed of C. R. Ps. 9. But in O. S.49 of 1961 R. I. A. 951 of 1964 was also filed by another party regarding the possession of another item of the property which was the subject-matter of the suit. That petition also was dismissed and be had filed CRP. 16 of 1965. Vaidyalingarn, J disposed of C. R. Ps. 13 and 16 of 1965 by a common order. It is necessary in the view I am taking on this point to extract the operative portion of the order of Vaidyalingam, J. which reads: "In my opinion, this suit of 1961 which is essentially one for partition as between the legal heirs of the deceased Narasimha Bhatta should not be allowed to be continued by claims being made by third parlies either as tenants or otherwise and the proper course will be to refer those parlies to other independent proceedings to have their claim established. I do not think there is any scope for interfering with the orders under attack in these C. R. Ps. But I make it clear that it is open to the respective petitioners if they have got any rights in the properties concerned as tenants or otherwise to have those rights properly established in other appropriate proceedings making the persons who are necessary for a proper disposal of that question." In view of the above observations the submission of the counsel for the plaintiff was that Ext. B2 order cannot operate as res judicata. I think the submission has force and has to be accepted. As I had already stated if Ext B2 has not been interfered with by Vaidyalingam, J. in C. R. P.13 of 1965 it is clear and the position cannot be contradicted that the suit for the same purpose is not maintainable. Even when an application is filed by a third party whose possession of property is sought to be interfered with by a receiver there is always a discretion is the Court that appointed the receiver to refer the third party to seek bis remedies in a separate suit, if the questions to be third are complicated. In the case before me, no doubt, the trial court enquired into the petition and found against the plaintiff. In the case before me, no doubt, the trial court enquired into the petition and found against the plaintiff. But the effect of that decision has been set at naught by this Court in C. R. P.13 of 1965 when this court thought that in this case the proper forum to agitate the claim of the plaintiff against the receiver and the party to the suit is in a separate suit. It may be that I may not agree with some of the reasonings of Vaidialingam J. in CRP. 13 of 1965 but it is a decision binding upon the parties and it is not open to me to go behind that decision. In view of that decision, I cannot accept the plea that Ext. B2 order will operate as res judicata to the suit. I, therefore, overrule this contention. 10. The second contention is based on S.34 of the Specific Relief Act, Act 47 of 1963. The section reads: "Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so." The explanation to the section is not necessary and is, therefore not extracted. 11. According to counsel for the appellants, the plaintiff was dispossessed of the plaint schedule property in O. S.49 of 1961 by the receiver appointed therein. The receiver in O. S.49 of 1961 is the 10th defendant in the suit giving rise to the second appeal. It was, therefore, contended that since there is no prayer for recovery of possession of the plaint property from the receiver the suit is hit by the proviso to S.34 of the Specific Relief Act. This contention which was specifically raised before the learned appellate judge was overruled by him on the ground that when the plaintiff is given the declaration the receiver is bound to surrender possession of the property to him. This contention which was specifically raised before the learned appellate judge was overruled by him on the ground that when the plaintiff is given the declaration the receiver is bound to surrender possession of the property to him. Though the ground mentioned by the learned Subordinate Judge cannot be said to be very accurate, I do not think there is much substance in the plea based on S.34 of the Specific Relief Act. By the appointment of a receiver the court is taking the property into its custody and it is, therefore, in custodia legis. The receiver is only an officer of the court to manage the properties on behalf of the court. He has mere custody of the property on behalf of the court and his custody is on behalf of the rightful owner whether he be a party to the suit or a third party who has been dispossessed of the property without any legal right. If that is the correct position, it is not necessary to pray for a decree for recovery of possession of the property from the receiver. The impleadment of the receiver in this suit is only after obtaining the sanction of the Court. When once the present right of the plaintiff to continue in possession of the property is declared the receiver has merely to surrender possession of the property to the plaintiff after taking sanction of the court which appointed him. 12. In Vedanayaga Mudaliar v. Vedammil, ILR. 27 Madras 591 the question arose as to whether a consequential relief has to be asked for when a suit has been instituted in respect of a property in the possession of the Receiver. A Bench of the Madras High Court said "The possession of the property was, at the time, neither with the defendant nor with the plaintiff, it being in custodia legis and in the hands of an officer of the Court and it being a mere accident that that officer was the plaintiff. In as much as the defendant was not in possession, plaintiff could not, as against her, have consequential relief, and nothing more was required to be done to secure to the plaintiff all his rights than to obtain an order of the Court enabling him to retain possession of his own right." In Harkishan Das v. Mt. Sundro Bibi and others, AIR. Sundro Bibi and others, AIR. 1926 Oudh 43, a learned single judge observed: "In the present case also the Court is holding property not in its own right but for the rightful owner and when the rightful owner obtains a declaration the Court will be willing to part with the property to that owner." In K. Sundaresa Iyer v. Sarvajana Sowkiabi Virdhi Nidhi Ltd., AIR. 1939 Madras 853 the plaintiff brought a suit for declaration that he was the absolute owner of certain jewels. At the time of the suit the jewels were in possession of the Court of the Sub Divisional Magistrate pending decision as to title by a court of competent jurisdiction. In that case the question arose whether consequential relief within the meaning of the proviso to S.42 of the Specific Relief Act was necessary. Leach C. J. observed at page 856: "At the time of the institution of the suit the jewels were in 'custodia legis and have remained in custodia legis. The court must deliver them to the person who shows a title-Therefore, it was not necessary for the appellant to ask for anything more than a mere declaration." The above view is supported by the observations of Their Lordships of the Judicial Committee in Jagat jit Singh v. Par tab Bahadur AIR. (29)1942 Privy Council 47. 13. The fact that Receiver was impleaded as additional 10th defendant in the suit is not a circumstance to show that it is obligatory on the part of the plaintiff to pray for a decree of the possession of the property from the Receiver. A Receiver has only a custody of the property and no legal possession is with the Receiver, Even if there was a decree for possession against the Receiver, he can surrender the property only after obtaining the sanction of the court. In these circumstances, the objection based on S.34 of the Specific Relief Act cannot stand. 14. The third contention relates to the merits of the claim of the plaintiff. Though there has been an elaborate consideration of this matter by the learned judge in my view that finding is vitiated. The suit was instituted in the year 1966. The short question to be decided is whether the plaintiff is a tenant in respect of the plaint A schedule properties from the joint family of defendants 1 to 9. Though there has been an elaborate consideration of this matter by the learned judge in my view that finding is vitiated. The suit was instituted in the year 1966. The short question to be decided is whether the plaintiff is a tenant in respect of the plaint A schedule properties from the joint family of defendants 1 to 9. The case has been burdened with documents both prior to the date of the suit and also with documents which have come into existence after the date of the suit. The learned appellate judge in bis discussion has mixed up both these documents, the learned appellate judge should not have given weight to any of the documents produced either by the plaintiff or by the defendant which have come into existence subsequent to the date of filing of I. A. 946 of 1964 in O. S.49/61. I, therefore, set the judgment and decree of the lower appellate court and remand the case to that court for fresh consideration in the light of the observation contained in this judgment. The parties will bear their costs in this court excepting the institution fee of the appeal which will be refunded to the appellant's counsel. Allowed.