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2021 DIGILAW 3322 (MAD)

Aravindam v. Sambasivam Pillai

2021-11-29

M.GOVINDARAJ

body2021
ORDER : PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order passed in O.S.No.50 of 2013 dated 06.02.2019 on the file of the Court of District Munsif cum Judicial Magistrate, Nannilam. Inveighing the order as one of without jurisdiction and not appealable, the present Civil Revision Petition has been preferred. 2. The defendants are the revision petitioners. The respondent/plaintiff filed a Suit for injunction restraining the defendants from interfering with his peaceful possession till he is lawfully evicted from his cultivating tenancy. The defendants contended that the plaintiff has surrendered possession and they are cultivating the lands on their own. The Trial Court framed three issues: (1) Whether the plaintiff is entitled to permanent injunction as prayed for? (2) To what other reliefs, the plaintiff is entitled to? (3) Whether the plaintiff is entitled to get protection under the cultivating tenant? 3. Ultimately, after trial, with respect to issue nos.1 and 3 directed the plaintiff to work out his remedy before the Revenue Divisional Officer and in respect of issue no.2, it was found that the plaintiff is not entitled to any other relief, since the plaintiff was found to be cultivating tenant, the Civil Court has no jurisdiction and hence, the Suit was transferred. 4. According to the revision petitioners, the order passed by the Trial Court is one without jurisdiction. The Revenue Divisional Officer or any other authority under the Tamil Nadu Cultivating Tenants Protection Act, 1955 could not grant a relief of permanent injunction and it is only the petition for eviction of tenant or application for restoration of possession could be transferred. But, transferring an injunction application makes the order nullity and without jurisdiction. Instead of deciding the main issue of permanent injunction, the Trial Court usurped the powers of the Record Officer and rendered a finding which is illegal and contrary to the judgment of the Hon'ble Supreme Court as well as the judgment of the Full Bench of this Court. Since no decree was passed against the respondent, he could not prefer any appeal and therefore, the revision is maintainable. 5. Per contra, the learned counsel appearing for the respondent/plaintiff would contend that the Suit was decided after full-fledged trial and a decree and judgment was passed by the Trial Court. Since no decree was passed against the respondent, he could not prefer any appeal and therefore, the revision is maintainable. 5. Per contra, the learned counsel appearing for the respondent/plaintiff would contend that the Suit was decided after full-fledged trial and a decree and judgment was passed by the Trial Court. As long as the decree complies with the ingredients of Section 2(2) CPC, whether it is an order of transfer or not, it shall be considered as a decree and an appeal only is maintainable against the decree. In respect of issue no.3 there is a categorical finding that the plaintiff is a cultivating tenant and therefore, the revision petitioners cannot maintain this revision. Their only remedy is filing of an appeal against the judgment and decree. In order to overcome the limitation period, the revision petitioners have come up with the Civil Revision Petition under Article 227 of the Constitution of India. 6. The Hon'ble Supreme Court in VIRUDHUNAGAR HINDU NADARGAL DHARMA PARIBALANA SABAI VS. TUTICORIN EDUCATIONAL SOCIETY AND OTHERS [ 2019 (9) SCC 538 ] has categorically held that when a remedy is available under Order 43 Rule 1 CPC, the High Court shall not entertain the application under Article 226 / 227 of the Constitution and therefore, the revision shall not be entertained and the petitioners shall be directed to avail the remedy of appeal under Section 96 CPC. 7. Heard the submissions made on either side. 8. The Hon'ble Supreme Court in BANARSI AND OTHERS VS. RAM PHAL [ 2003 (9) SCC 606 ] has held thus: "8.Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal, [1967] 3 SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd., [1970] 3 SCC 573; Smt. Ganga Bai v. Vijay Kumar and Ors., [1974] 2 SCC 393. No appeal lies against a mere finding. v. Gopal Lal, [1967] 3 SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd., [1970] 3 SCC 573; Smt. Ganga Bai v. Vijay Kumar and Ors., [1974] 2 SCC 393. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment. 9..... 10. The CPC Amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 subrule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross objection. However, the insertion made in the text of subrule (1) makes it permissible to file a cross objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross objection. The amendment inserted by 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:- (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent; (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent; (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross objection. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. The law remains so post amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross objection to & finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent." 9. From the perusal of the above judgment, it can be noted that three situations would arise, which would confer or not confer right to file an appeal. (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 10. On the basis of the above three situations, it could be seen that the decree of the Trial Court orders transfer of the Civil Suit to the file of Revenue Divisional Officer. The decree reads as under: 11. In the decree, it is noted that the "since the plaintiff is found as a cultivating tenant, the Suit is transferred." Of course, the plaintiff or defendant cannot prefer an appeal against a finding or observation made in the judgment. The decree reads as under: 11. In the decree, it is noted that the "since the plaintiff is found as a cultivating tenant, the Suit is transferred." Of course, the plaintiff or defendant cannot prefer an appeal against a finding or observation made in the judgment. But in the present case, the decree contains the determination that the plaintiff is a cultivating tenant. Insofar as that determination is concerned, it is against the defendants. That determination which is an integral part of the decree make it as an appealable one. There cannot be any distinction in a decree between a main relief granted and an observation or finding. As long as the observation or finding contained in a decree, it will operate against the party against whom it is made and hence that party is entitled to file an appeal. 12. Though in the above judgment it is observed that the plaintiff has to work out the remedy before the Revenue Divisional Officer and the Suit is transferred to him without granting any relief to the plaintiff, the decree is on the basis of the finding in respect of issue no.3. Insofar as the determination as cultivating tenant and the decree is concerned, even though it is an order of transfer, it is appealable under Order 43 Rule 1 CPC. 13. It is true to state that an appeal provided under Section 96 CPC is near total bar for entertaining a revision under Article 226 of the Constitution of India. It is relevant to note that the present revision is not on the merits of the case as it could be made in the regular appeal. As discussed above, the Trial Court failed to perform its judicial duty, which it should have performed. The High Court in its power of superintendence under Article 226 of the Constitution of India, shall put the Subordinate Courts in the right track to avoid miscarriage of justice. This Court is conscious of the judicial discipline and carefully restricts jurisdiction only to the extent of setting right the mistakes in proper exercise of power by the Civil Court. The avenue of appeal is still wide open to the parties after the proper decision by the Trial Court on the merits of the matter. This Court is conscious of the judicial discipline and carefully restricts jurisdiction only to the extent of setting right the mistakes in proper exercise of power by the Civil Court. The avenue of appeal is still wide open to the parties after the proper decision by the Trial Court on the merits of the matter. At the risk of repetition, it is reiterated that this revision does not deal with the merits of the matter, which should be dealt with by the concerned appellate Court. To this extent, the judgment relied on by the learned counsel for the respondent in VIRUDHUNAGAR HINDU NADARGAL DHARMA PARIBALANA SABAI VS. TUTICORIN EDUCATIONAL SOCIETY [ 2019 (9) SCC 538 ] will not apply to the facts and circumstances of this case. 14. Insofar as the finding of the Trial Court in respect of three issues framed by it in the Suit filed for injunction is concerned, at the first instance, the order of transfer is without jurisdiction and illegal. Once a Suit is competently instituted in a Civil Court that Suit must determine any one of the methods known to law, namely, either it is dismissed or it is decreed and cannot be left in the air. 15. But in the instant case, the Trial Court ought to have determined the relief of injunction either one way or the other as the preventive relief which cannot be granted by the Revenue Authorities and which could be granted only by a competent Civil Court ought to have been decided. On the other hand, it has taken up the incidental question as a main issue and left the main relief sought for by the plaintiffs in the air. 16. It is pertinent to peruse Section 16-A of the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1969 and Section 6A of the Tamil Nadu Cultivating Tenants Protection Act, 1955. 17. As per Section 16-A of the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1969, no Civil Court shall have jurisdiction in respect of any matter which the record officer, the District Collector or other officer or authority empowered by or under this Act has to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act. 18. 18. It is well settled by the Full Bench of this Court in PALANISAMI VS. RAMASWAMI GOUNDER [S.A.NO.1496 OF 1976 DECIDED ON 05.01.1977] that "it is true that for the purpose of granting the relief of injunction claimed in the suit, the court has to incidentally go into the question as to who is in possession of the property and in what capacity". Further, it relied on the judgment in RAMASWAMI PAPIAH VS. ELLAPPA GOUNDER [1960 (2) MLJ SN 26] wherein it is held that an injunction which is preventive remedy, can be granted only by the Civil Court that there is no inherent power in any Tribunal to grant an injunction and that, therefore, the tenant has always got his remedy to approach the Civil Court for the relief by way of injunction whenever his possession is interfered with. The relevant portion of the said judgment is extracted hereunder: "39. The question came to be decided by one of us (Ramanujam J.) in Palanisami v. Ramaswami Gounder S. A. No. 1496 of 1976, judgment D/- 5-1-1977. That arose from a suit filed for a permanent injunction restraining the defendants from interfering with the possession of the suit property by the plaintiff as a cultivating ten plaintiff in the suit was the first respondent before this Court and his case was that he took the suit property on lease from respondents 2 and 3 in 1967 on an annual rent at Rs. 400, that he continued to be in possession of the land as a cultivating tenant ever since, that though he was entitled to the benefits of the Tamil Nadu Act XXV of 1955, respondents 2 and 3 had sold the land on 7-4-1975 to the appellant who had chosen to interfere with his possession on the bask of the said purchase and that that lad occasioned his suit for permanent injunction. One of the defences put forward by the appellant and respondents 2 and 3 was that after the period of one year from the date of the lease, the first respondent-plaintiff had surrendered possession of the land, that subsequently he was not possession of in the same and that therefore he was not entitled to the permanent injunction. The courts below had, rejected this contention of the appellant third defendant and respondents 2 and 8 (defendants 1 and 2) and this court concurred with that conclusion. The courts below had, rejected this contention of the appellant third defendant and respondents 2 and 8 (defendants 1 and 2) and this court concurred with that conclusion. However, one other point that was urged before this Court was that S. 16-A of the Act excluded the jurisdiction of the Civil Court and the question as to whether the first respondent was a cultivating tenant in respect of the said lands could not be gone into in that suit, as it was a matter to be decided exclusively by the authorities constituted under the Act and in support of that contention reliance was placed on the Bench decision of this court in Muniyandi v. Rajangam Iyer 1976-1 Mad LJ 344: (AIR 1976 Mad 287) referred to already. After referring to the said decision, this court in the judgment in the second appeal referred to above observed- "Dealing with the contention regarding the jurisdiction of the Civil Court to entertain this suit as framed, the lower appellate court has expressed the view that the relief sought for in the suit does not in any way, infringe the functions of the Record Officer, and that, therefore, the first respondent can invoke the jurisdiction of the Civil Court if his possession is sought to be disturbed by the appellant and respondents 2 and 3, and that S. 16- A will not, therefore, stand in the way of the first respondent maintaining this suit. I am of the view that though S. 16-A excludes the jurisdiction of the Civil Court to determine a question which the authorities constituted under the Tamil Nadu Act X of 1969 had to decide, the present suit, which is one for mere injunction, can be maintained in the Civil Court. It is true that for the purpose of granting the relief of injunction claimed in the suit, the court has to incidentally go into the question as to who is in possession of the property and in what capacity. The fact that the court has to consider an incidental question for the purpose of granting the main relief claimed in the suit will not make the suit incompetent in a Civil Court. The fact that the court has to consider an incidental question for the purpose of granting the main relief claimed in the suit will not make the suit incompetent in a Civil Court. In Rama- Papiah v. Ellappa Gounder, 1960 (2) MLJ SN 26, Ramachandra Iver J. as he then was, had held that an injunction, which is preventive remedy, can be grantonly by the Civil Court, that there is no inherent power in any tribunal to grant an injunction and that, therefore, the tenant has always got his remedy to approach the Civil Court for the relief by way of injunction whenever his possession is interfered with. In Ramachandra Sastrigal V. Kuppusami Vanniar 1961-1 Mad LJ 335 while dealing with the scope of S. 6-A of the Tamil Nadu Act XXV of 1955, a Division Bench had expressed the view that in a simple suit for an injunction laid in a Civil Court for restraining the defendant, from interfering with the plaintiffs possession, the defendant, even if he were to be a cultivating tenant entitled to the benefits of the Act, cannot gain anything by merely having the forum of adjudication being shifted from the Civil Court to the Revenue court as it is obvious that a Revenue Court cannot grant any injunction. In Sri Venkataramanaswarny Deity v. Vadugammal 1974-1 Mad LJ 431, a Division Bench of this Court, while construing the scope of S. 93 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959, held that a relief which cannot be granted by the Deputy Commissioner under S. 57 can be asked for in a Civil Court and that the Civil Court, while deciding whether the plaintiff is entitled to the reilef asked for, can go into and decide incidental questions which may fail within S. 57. The Bench has observed -' Therefore, the preponderance of authority of our court is that a civil suit is not barred in respect of a relief which cannot be anted by the Deputy Commissioner and at in such a suit, the Civil Court has jurisdiction to decide incidental issues which are within the jurisdiction of the Deputy Commissioner". On the pleadings in the case, there are three possibilities. Firstly, the plaintiff in the suit might have been in possession. On the pleadings in the case, there are three possibilities. Firstly, the plaintiff in the suit might have been in possession. Of the suit lands on the date of suit and he may be a cultivating tenant entitled to the benefits of the Tamil Nadu Act XXV of 1955. If this is the real position, an injunction must issue in favour of the plaintiff. Have Secondly, the plaintiff might been in possession of the suit lands on the date of suit but he might-not be a cultivating tenant entitled to the benefits of the Act. Even in such a case the plaintiff is entitled to an injunction by virtue of his having been in possession of the suit property on the date of suit, as he is entitled to continue in possession until duly evicted by the true owner. The third possibility is the plaintiff might not have been in possession of the suit lands on the date of suit. In such a case whether he is a cultivating tenant entitled, to the benefits of the Act or not, the suit must fail. Therefore, if the plaintiff is in a position to get an order of injunction even without establishing his status as a cultivating tenant, the suit cannot be thrown out merely because it raises an incidental question as to whether the plaintiff is a cultivating tenant or not. I am, therefore, of the view that the Civil Court's jurisdiction to entertain this suit for injunction cannot be said to have been taken away under S. 16-A of the Tamil Nadu Act X of 1969". 19. The Hon'ble Full Bench of this Court in PERIATHAMBI GOUNDAN VS. THE DISTRICT REVENUE OFFICER, COIMBATORE AND OTHERS [AIR 1980 MADRAS 180] after observing various judgments, categorically held that the matter which relates to determination of cultivating tenancy lies within the exclusive jurisdiction of the Revenue Authorities. Though it is true to state that at the time of deciding the application for injunction, a Civil Court is empowered to give finding on the incidental issues like possession and relationship between the parties, it cannot venture to usurp the exclusive jurisdiction of Record Officer and decide it as a main issue and failed to exercise the power in it lawfully vested. In that view, the order passed amounts to failure to exercise the power leading to miscarriage of justice and is one liable to be interfered under Article 227 of the Constitution of India. 20. As per Section 6A of the Tamil Nadu Cultivating Tenants Protection Act, 1955, the Civil Court has power to transfer certain Suits to the Revenue Divisional Officer for his determination. Section 6A of the Act reads as under: "6A. 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 tire 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 shall all the provisions of this Act shall apply to such an application and the applicant." 21. A Division Bench of this Court in M.S.RAMACHANDRA SASTRIGAL VS. KUPPUSWAMI VANNIAR [ 1961 (1) MLJ 335 (DB)] has held as under: "The plain words of S. 6-A of the Act clearly indicate the scope of that provision. The suit which is sought to be transferred must be one for possession or injunction in relation to any land. The defendant in such a suit can, if he is a cultivating tenant entitled to the benefits of the Act, have the trial of the suit before the civil Court interrupted and have the suit transferred to the Revenue Divisional Officer. On a transfer being ordered in terms of that section the Revenue Divisional Officer shall deal with and dispose of the suit as though it were an application under the Act. Before the section can operate three conditions must be fulfilled. The first is that the defendant must be a cultivating tenant; the second is that he must be entitled to the benefits of the Act; the third is that he must on a transfer of the proceeding to the Revenue Divisional Officer be in a position to obtain one or other of the statutory reliefs provided for in his favour under the Act. Without the concurrence of these three conditions no transfer should be ordered by the civil Court under the provisions of S. 6-A of the Act. In a simple suit for an injunction laid in a civil Court, for restraining the defendant in the suit from interfering with the plaintiffs possession and enjoyment of the land, the defendant even if he were to be a cultivating tenant entitled to the benefits of the Act cannot gain anything by merely having the forum of adjudication being shifted from the civil Court to the Revenue Court. It is obvious that a Revenue Court cannot grant any injunction. The Revenue Court has no jurisdiction to consider the question whether an injunction can or cannot be granted. In Ramaswami Rajah v. Ellappa Gounder (1960) 2 M.L.J. 26. (Short Notes) C.R.P. No. 936 of 1960, same case since reported in 73 L.W. 747 : I.L.R. 1960 Mad. 1173 decided by Ramachandra Iyer, J. the extract as per the report of the Short Notes is as follows: “An injunction which is a preventive remedy, is granted by Courts under the specific provisions of the Civil Procedure Code. There is no inherent power in any Tribunal to grant an injunction unless the jurisdiction to grant it is expressly conferred by statute and such a power cannot be assumed by implication. Hence a Revenue Divisional Officer would have no jurisdiction to grant an injunction restraining a landlord from entering his property. The tenant has always got his remedy in such cases to approach the civil Courts for relief by way of injunction." In the present case we are not informed that the defendant in the suit has preferred any application before the Revenue Divisional Officer for restoration of possession. Whether it will be open to him to prefer any such application in future if he has not already preferred one is a matter on which we need not express any opinion. In any view of the matter we do not see the necessity for a transfer of the suit from the file of the civil Court to that of the Revenue Court. There are only three possibilities arising on the pleadings of the parties in the case. In any view of the matter we do not see the necessity for a transfer of the suit from the file of the civil Court to that of the Revenue Court. There are only three possibilities arising on the pleadings of the parties in the case. Firstly the plaintiff in the suit might have been in possession of the suit lands on the date of the suit and the defendant may not be a cultivating tenant entitled to the benefits of the Act. If this is the real position it is obvious that an injunction must issue in favour of the plaintiff. In fact even the terms of S. 6-A cannot operate and the suit cannot be transferred. Secondly the plaintiff might have been in possession of the suit lands on the date of the suit but the defendant might be a cultivating tenant entitled to the benefits of the Act. In this case also the civil Court will have to grant an injunction but this decree for injunction will however be subject to such order as the Revenue Divisional Officer may pass by way of restoration of possession or otherwise at the instance of the tenant and as a result of appropriate proceedings which he might take under the Act. The third possibility is that the plaintiff might not have been in possession of the suit lands on the date of the suit. In such a case whether the defendant is a cultivating tenant entitled to the benefits of the Act or not the suit must fail. We are therefore of opinion that taking any view of the matter S. 6-A of the Act cannot properly govern the case. We have held already that the finding of the learned District Munsif even on the question whether the defendant is a cultivating tenant entitled to the benefits of the Act or not is erroneous in law and unsustainable. The civil revision petition is allowed; the judgment of the learned District Munsif is set aside; and O. S. No. 135 of 1956 is restored to the file of the District Munsif, Tiruvarur, for being retried on all the issues arising in the case, the parties being at liberty to adduce such further and additional evidence as they think fit. ..." 22. In the instant case, the plaintiff has filed the Suit claiming himself as a cultivating tenant under the defendants. ..." 22. In the instant case, the plaintiff has filed the Suit claiming himself as a cultivating tenant under the defendants. The defendants had projected a case that the plaintiff has surrendered possession and that they are directly cultivating the lands. In that event, as per the above Section, when respective affidavits filed by the parties, without proceeding for trial, the matter should have been transferred to the Revenue Divisional Officer. On the other hand, the Trial Court has proceeded with the trial and has given a finding with respect to an incidental issue, but failed to determine the matter in respect of the main issue for which it is competent to decide. 23. As held by the Full Bench of this Court as well as the various other judgments, an injunction which is a preventive remedy can be granted only by the Civil Court and there is no inherent power in any Tribunal to grant injunction. The Trial Court ought to have taken a decision on the main relief and subjected the order to the decision of the Revenue Divisional Officer with respect to the rights of the parties. On the other hand, the Trial Court has erroneously decided the issue which falls within the exclusive jurisdiction of the Revenue Authorities and left the main relief which falls within the exclusive jurisdiction of the Civil Court. 24. In fine, considering the facts and circumstances of the present revision and in the interest of justice, the decreetal order passed in O.S.No.50 of 2013 dated 06.02.2019 by the learned District Munsif cum Judicial Magistrate, Nannilam stands set aside and the Suit is restored for being tried on all the issues arising in this case. The parties are at liberty to adduce further and additional evidence as they think fit. 25. In fine, the Civil Revision Petition stands allowed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.