Govindaswamy Pillai v. Marudan — 1998 DIGILAW 662 (MAD)

Judgment :- 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. 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 appellant vehemently contended that it was not open to the Courts below to have held that the delivery taken by the appellant pursuant to the decree in O.S. No. 222 of 1966 was only a paper delivery in spite of the fact that the record indicated actual delivery. The learned counsel further submitted that the decree in O.S. No. 222 of 1966 would operate as res judicata and 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. According to the learned counsel, there was no warrant for finding that the respondent had lawful possession of the property when, on facts and in law, he was only a trespasser. 8. Mr. According to the learned counsel, there was no warrant for finding that the respondent had lawful possession of the property when, on facts and in law, he was only a trespasser. 8. Mr. R. Nandakumar, the learned counsel for the respondent contended that notwithstanding delivery having been recorded by the Court, the respondent had continued in possession and in fact, the appellant himself had recognised him as tenant and had received lease amounts from him and this was evidenced by Exs. A-5 to A-9, which were all after the decree in O.S. No. 222 of 1966. The learned counsel submitted that the Court in the earlier suit had no jurisdiction to pass a decree for delivery of possession when even according to the appellant, the respondent was cultivating the lands under Subramania Pillai and once it was found that the Civil Court had no jurisdiction, the earlier decree directing delivery of possession was a nullity and no rights would flow from the same. The decision in N. Sreedharan v. Velayudhan Pillai (A.I.R. 1984 Madras 100) relied on by the learned counsel for the respondent would not apply to the facts of the present case. 9. As a fact, there was a decree passed in O.S. No. 222 of 1966. The respondent chose to remain ex parte. The appellant and Subramania Pillai entered into a compromise and the same was recorded. It is established legal position that an ex parte decree would operate as res judicata. 10. In S. Chenniappa v. I.T. Commissioner (A.I.R. 1965 Madras 62 = 1964 (2) M.L.J. 157 ) = (1964) 77 L.W. 441, a Full Bench of this Court, while pointing out the difference between an ex parte decree and a dismissal for default, observed as follows: “We may now point out that there is a real distinction between the case of dismissal of legal proceedings for default of appearance and one given on merits. In the former case, it is termination of the proceedings for non-prosecution. Such termination decides nothing as regards the matters in controversy; it merely gets rid of the pending proceeding. In the former case, it is termination of the proceedings for non-prosecution. Such termination decides nothing as regards the matters in controversy; it merely gets rid of the pending proceeding. Unless there be a statutory bar, the dismissal of a case for default, cannot prevent the party from commencing the same proceedings afresh; but the institution of such fresh proceedings might become impossible on account of rules of limitation as to the filing of appeals by reason of any specific provision in that regard under the Rules themselves. It will thus be apparent that the dismissal of a case for default can in no sense amount to an adjudication on its merits. This is quite unlike a case of an ex parte decision, where there is an adjudication on the merits. A judgment given for default of appearance by the appellant cannot (unlike the case of an ex parte or operate as res judicata).” 11. The above decision of the Full Bench was referred to and followed by a Bench of this Court in H.R.& C.E. Commissioner v. V. Krishnaswami (A.I.R. 1975 Madras 167) = (1974) 87 L.W. 120 S.N. 12. In view of the above decisions, it has to be held that it is not open to the respondent to contend that the earlier ex parte decree against him would not operate as res judicata. 13. The learned counsel for the respondent then contended that the Civil Court had no jurisdiction to pass an order for recovery of possession in respect of a cultivating tenant and admittedly, the respondent was cultivating the suit properties under Subramania Pillai and the decree in O.S. No. 222 of 1966 must be held to be not binding on the respondent. 14. 14. The learned counsel relied on the judgment of the Supreme Court reported in Mathura Prasad Bajoo Jaiswal and others v. Dossibai N.B. Jeejeebhoy (A.I.R. 1971 S.C. 2355 = 1970 (3) S.C.R. 830 = (1971) 84 L.W. 25 S.N.), in which it was held by the Supreme Court that where by an erroneous decision, the Court assumed jurisdiction which it did not possess under the statute, the decision would not operate as res judicata between the same parties, whether, the cause of action in the subsequent litigation was the same or otherwise, because, if the decision was considered as conclusive, it would assume the status of a special rule of law applicable to the parties relating to the jurisdiction of the Court, in derogation of the rule declared by the legislature. In other words, if the Court which passed the decree lacked jurisdiction to try the suit, the decision entered would not operate as res judicata. 15. The next question therefore will be whether the Court lacked jurisdiction to pass a decree that it passed in O.S. No. 222 of 1966 at the time when it passed it. It may be pertinent to note that there was no bar at that time for the institution of the suit. 16. The Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, Act X of 1969, came to be passed in 1969. Section 16-A-Bar of jurisdiction of Civil Courts, came to be introduced by Act 34 of 1972 only in 1972. The suit was filed even in 1966 and there was a compromise and the decree for recovery of possession was passed on 8.8.1967. On the date, when the decree was passed, the Court did not suffer from want of jurisdiction to try the suit. Section 16-A has not been made to be retrospective. 17. While dealing with this aspect, a Full Bench of this Court in Periathambi Gounder v. District Revenue Officer (A.I.R. 1980 Madras 180 = 1980 (2) M.L.J. 89 F.B.) = (1980) 93 L.W. 169 approving the decision of Sankaralinga Thevar v. Thirumalammal (1977 (1) Madras L.J. 189), (Full Bench) observed as follows: “We are of the opinion that the above Bench decision correctly lays down the effect of Section 16-A of the Act. We shall go a step further and point out that a suit which has been instituted prior to the coming into force of Section 16-A of the Act will have to run its natural and normal course prescribed by law without in any way being affected by the provisions contained in Section 16-A of the Act, because there is nothing in Section 16-A expressly or by necessary implication taking away the jurisdiction of the Civil Court validly and competently assumed at the first instance. Consequently even if a decree had not been passed in a suit at the time when Section 16-A came into force, the fact that Section 16-A came into force during the pendency of the suit will not prevent the Court from exercising its jurisdiction lawfully and validly invoked and the same principle will apply to the further course of the suit in the form of appeal or revision.” The Full Bench expressly held that the decision in Muniyandi v. Rajangam Iyer (A.I.R. 1976 Madras 287 = 1976 (1) M.L.J. 344 = (1976) 89 L.W. 241), was erroneous in as much as it applied the bar imposed by Section 16-A of the said Act to a suit which was pending on the date when the said Section came into force. 18. It was also held in Govindarajan v. K.A.N. Srinivasa Chetty (A.I.R. 1977 Madras 402 = (1977) 90 L.W. 311 ) that Section 16-A of the said Act was not retrospective in operation and would not oust the jurisdiction of the Civil Court in pending matters. 19. In the instant case, admittedly, the decree was passed long before the introduction of Section 16-A of the said Act. The decree cannot be termed to be a nullity. I am also not able to envisage that for the purpose of executing a decree passed by a Civil Court directing recovery of possession, the successful party should approach the revenue Court. I therefore hold that the decree had been validly passed, that it was binding on the respondent, and that it would operate as res judicata so far as the present suit for permanent injunction is concerned. 20. I therefore hold that the decree had been validly passed, that it was binding on the respondent, and that it would operate as res judicata so far as the present suit for permanent injunction is concerned. 20. It has been held in Suleman Noormohamed v. Umarbhai Janubhai (A.I.R. 1978 S.C. 952 = 1978 SCR 387 = (1978) 91 L.W. 53 S.N.) that a compromise decree not in violation of any Act could not be held to be a nullity and could be executed on non-compliance. It must be presumed that the decree in O.S. 222 of 1966 had been validly passed. 21. The next point for consideration is whether it would be open to the respondent to plead that the recording of delivery of possession in the execution petition filed by the appellant was not a recording of actual delivery but of only symbolic delivery. 22. It has been held by Srinivasan, J. as he then was, in C. Ramasami v. Kuruva Boyan and others (1991 (1) L.W. 244) as follows: “It is not possible for a Court to 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. In order to reject the official records such as the bailiffs endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full particulars as are necessary to support the same, the Court shall not direct an enquiry as to whether there is actual delivery. In every case t he judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an order of stay in the appellate Court. A bare allegation that the delivery is a paper delivery and that the appellant continues in possession is hardly sufficient to direct an enquiry whether there is physical delivery. The presumption under Section 114 of the Evideuce Act that official acts are performed regularly will undoubtedly apply.” 23. It has not been brought to my notice by the learned counsel for the respondent that there was any plea of fraud in the matter of recording of delivery by the Court. The presumption under Section 114 of the Evideuce Act that official acts are performed regularly will undoubtedly apply.” 23. It has not been brought to my notice by the learned counsel for the respondent that there was any plea of fraud in the matter of recording of delivery by the Court. In the absence of any such plea, as has been laid down by this Court in the judgment just referred to, it must be held that it was not open to the respondent to contend that the delivery effected was only a paper delivery. The discussion by the Courts below and in particular, by the lower appellate Court, on this aspect, was wholly unwarranted. It was not at all open to the lower appellate Court to have analysed any evidence regarding the truth or otherwise of the delivery. The finding by the Courts below that there was no actual delivery of the property by the respondent to the appellant, pursuant to the execution of the decree in O.S. No. 222 of 1966, has therefore to be vacated. 24. The learned counsel for the respondent contended that there were documents evidencing recognition of the respondent as tenant by the appellant, and this would clearly show that the respondent had continued as tenant of the appellant notwithstanding the decree in ejectment passed against him. The learned counsel referred to Exs. A-5 to A-9, which are receipts issued by the appellant to the respondent for faslis 1390, 1381, 1382, 1383 and 1378 and 1379, covering the period 5.5.1971, 10.5.1972, 10.3.1973, 1.12.1974 and 18.3.1970, respectively. According to the learned counsel for the respondent and the Courts below, in the absence of any words in the receipts to the effect that the appellant was receiving the amounts without prejudice to the decree in O.S. No. 222 of 1966, it must be taken that the appellant had recognised the respondent as his tenant. I do not agree. Just because he had received payments from the respondent and he had not endorsed that he was receiving payments without prejudice, it should be held that the appellant had recognised the respondent as his tenant. The nomenclature in the receipts as Kuthagai is neither here nor there. It cannot be ruled out that the appellant had received the amounts without prejudice to his right to execute the decree in O.S. No. 222 of 1966. The nomenclature in the receipts as Kuthagai is neither here nor there. It cannot be ruled out that the appellant had received the amounts without prejudice to his right to execute the decree in O.S. No. 222 of 1966. If really the appellant had given up his rights in respect of the decree in O.S. 222 of 1966, the respondent would have ensured to have a document executed in his favour by the appellant giving a go-bye to the decree obtained by the appellant against the respondent. It is also significant to note that the respondent had not taken steps to have himself recorded as a tenant under the provisions of the said Act. No doubt, this by itself, would not disentitle the respondent from contending that he was a cultivating tenant, this could be taken as one of the circumstances to accept the case of the appellant that the respondent was not a tenant under him and that he was only a trespasser. 25. Section 6-A of the Tamil Nadu Cultivating Tenants Production Act reads as follows: “6-A: Transfer of certain suits to the Revenue Divisional Officer by Civil Courts: — If in any suit before any Court for possession of, or injunction in relation to any land, it is proved by affidavit or otherwise that the defendant is a cultivating tenant entitled to the benefits of this Act, the Court shall not proceed with the trial of the suit but shall transfer it to the Revenue Divisional Officer who shall thereupon deal with and dispose of it as though it were an application under this Act and all the provisions of this Act shall apply to such an application and the applicant. For this Section to apply, both the conditions imposed must coexist, namely, the defendant must be a cultivating tenant within the meaning of the abovesaid Act and that he should be entitled to the benefits of the abovesaid Act. If both these conditions are not satisfied, no question of any transfer under Section 6-A of the abovesaid Act would arise. 26. Nothing prevented the respondent from appearing before the Court in O.S. No. 222 of 1966 and contending that he was a cultivating tenant entitled to the benefits of Tamil Nadu XXV of 1955 and that the Civil Court had no jurisdiction to entertain the suit. 26. Nothing prevented the respondent from appearing before the Court in O.S. No. 222 of 1966 and contending that he was a cultivating tenant entitled to the benefits of Tamil Nadu XXV of 1955 and that the Civil Court had no jurisdiction to entertain the suit. Having failed to do that, having suffered an ex parte decree and having allowed it to be alive, having not taken steps to have himself recorded as a cultivating tenant before the Record Tahsildar under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, as amended by Act 10 of 1969, it is too late in the day for the respondent to contend that he was a tenant and he would be entitled to have the remedy of injunction restraining the appellant from interfering with his possession. He had brought it on himself. 27. It has therefore to be held that the decree for permanent injunction granted by the Courts below cannot stand. The respondent must be deemed to be a trespasser and as has been-held in Alagi Alamelu Achi v. Ponniah Mudaliar ( 1962 (I) M.L.J. 385 ) and a host of other decisions by this Court and the Supreme Court in Premji Ratansey Shah v. Union of India ( 1994 (5) S.C.C. 547 = (1994 2 L.W. 735) and Mahadeo Savlaram Shelke v. Pune Municipal Corporation ( 1995 (3) S.C.C. 33 ), that a trespassers possession cannot be protected, it has to be held that the respondent is not entitled to the decree for injunction prayed for by him. Consequently, the substantial question of law raised in the Second Appeal has therefore to be answered against the respondent. 28. The judgments and the decrees of the Courts below will stand set aside and the suit O.S. No. 448 of 1981 on the file of the District Munsifs Court, Valangiman at Kumbakonam, will stand dismissed. The Second Appeal will stand allowed. There will be no order as to costs.