Chiruthakutty vs Chandukutty

N.V. Iyengar, J.—This C.M. Appeal arises out of an application made before the court below by the appellant, stranger to the suit, which has now been disallowed by it.

The appellant was the wife of Othenan Vydier who was a prior karnavan and manager in the tarwad, the properties of which were being partitioned in the suit O.S. 5 of 1949 herein. In such capacity as karnavan, Othenan Vydier had granted to the appellant, Ext. A1 kanom deed on 25--5--1933 in respect of 5 items of tarwad properties. On the Receiver in the suit, seeking to deal with item 5 also, along with other tarwad properties which had come under his control, the appellant made the present application dated 28--11--1953, praying for direction that the Receiver should not take delivery of it or if he had already done so he should (sic)e-deliver it to her. The appellant claimed that she had been in continuous possession and enjoyment of item 5 alike as the rest of the items covered by Ext. Al and the action of the Receiver was only inspired by the 1st defendant, present karnavan, who was not well-disposed towards her. The application was contested by the Receiver and the 1st defendant who were both made respondents thereto. The Receiver pleaded that he had obtained surrender of the paddy flat portion of the item concerned from the 7th defendant, junior member, even in November 1952 long before the application was filed and had further included it in the lease he had given to Choyi (examined as P.W. 1) in December of that year. As regards the Kuni portion of item 5 he got delivery thereof on the death, in June 1953, of the 2nd defendant, another junior member, and he was still keeping the same. The 1st defendant supported the Receiver and further alleged that the junior members of the tarwad, in possession of item 5 at the date of Ext. Al, had protested against its inclusion in Ext. Al and had refused to part with it, either then or later. The 2nd defendant was in possession of the entire item until 1120 (1945) when he gave up the paddy flat portion to the 7th defendant, while retaining the Kuni portion himself. The 1st defendant denied that he was in any way specially responsible for the action of the Receiver as alleged. The court took evidence on the application and finally upheld the objections raised by the respondents and dismissed the petition. Hence this appeal.

Learned Counsel for the respondents took a preliminary objection to the maintainability of the appeal. There is no substance however in the objection. Obviously the application in the court below must have been made under Order 40, rule 1(b) of the Civil Procedure Code, though actually, section 151 was alone mentioned therein. If so, there is no doubt that the appeal lies. As observed in Ramaswami Pillai v Janaki Ammal AIR 1923 Mad. 129:

When property of a third party is interfered with by an officer of the Court like the Receiver, the party had 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.

And when the party adopts the summary remedy, but the court refused to direct its officer not to interfere with the party''s possession, it in effect, removed him from possession or custody within the meaning of C1 (b) of order 40, Rule 1 which says:

The court may by order remove any person from the possession or custody of the property

and such order was appealable under Order 43, Rule 1, Cl(s); See also Hudson v Morgan, ILR (1909) 36 Cal. 718 and Agabeg v Musamat Sundari, (1918) 3 Pat. L.J. 573 = AIR 1918 Pat. 301. Indeed the court below had specifically noticed this aspect when it took full evidence from both sides on the question of fact involved, before passing its final order under appeal. I therefore overrule the preliminary objection raised by Learned Counsel.

Taking up the merits, the appellant had sought to prove her case by production of Ext. A 2 to A 7, receipts issued to her by the karnavars of the tarwad from 1935 to 1942 in respect of the rents under Ext. A 1 and also Ext. A 8 issued by the present Receiver himself on 7--4--1953 for sundry rents. She had also produced Ext. A 9 and A 10 tax receipts and Ext. A 11 to 15, No. II forms issued by the Revenue Department in regard to the cultivation of the property for certain years during the interval. She also let in oral evidence by examining P.W. 1 Choyi, the lessee of the Receiver and P.W. 2 her son. On the other side, the Receiver and the 7th defendant were examined as R.W. 1 and R.W. 2 and Ext. B 1 to 6, No. II forms and Ext. B 10 to 14 tax receipts for certain years, obtained by the 7th defendant, were also filed. On this evidence, the court below found that the appellant had not discharged the burden, which rested on her to positively make out that the property concerned was in her possession and there was no reason therefore to allow her petition. However having heard Learned Counsels on both sides and gone through the records, it seems to me that the court below did not reach the correct conclusion and the appellant should succeed.

Now it has come out in the evidence, that items 1 to 3 were outstanding under a prior kanom from the tarwad, which the appellant obtained assignment of, before she got Ext. A 1. Ext. A 1 itself mentions that possession had been passed to the appellant, of all the items covered thereby, even before its date under some oral arrangement. Evidently this oral arrangement must have been with reference to items 4 and 5 without distinction between them, Ext. A 1 again, goes into particularly as to the number of cocoanut and mango trees forming the Kuzhikoor of the tarwad in items 1, 2, 3 and 5, so as to ensure that excess over that number will alone be considered to be the improvements of the appellant. No evidence has been let in by the tarwad to show that Othenan Vydier had to any extent acted against the tarwad interests when he executed Ext. A 1 or was incapable of getting the junior members to comply with his wishes in regard to his management of tarwad affairs. On the other hand, the tarwad had consistently issued the receipts Ext. A 2 to A 7 for the years 1935 to 1942 for the full rent due under Ext. A 1. There was every reason therefore to conclude that Ext. A 1 did come into effect according to its terms and continued in full force right along. Indeed the Receiver, as R.W. 1 had to concede that the appellant''s son was in possession of the item 5, paddy flat and Kuni included, just before the date of the present petition, though he qualified it by saying that it was a case of trespass. But how could there be a trespass when Choyi, the Receiver''s lessee, had no such case. The real explanation is that the Receiver had no personal idea of the exact extent of Manathadi land of which items 4 and 5 also formed portion, which the 7th defendant surrendered to him and which later he leased to Choyi and he depended upon the 1st defendant for the information as to trespass. And this is confirmed by the fact that in respect of the Kuni the portion at any rate, the delivery through court, was not made to the Receiver direct but was taken by the 1st defendant on his behalf. The court below was to considerable extent impressed by the fact that the No. II forms produced by the appellant included only 15 cents, which might form portion of item 4, while those produced by the 7th defendant possibly included item 5, as seen from the area of 3.25 acres mentioned therein and there was also the evidence of the Receiver, who was an advocate of standing against the case of the appellant. But these No. II forms cannot be taken by themselves to be any clinching circumstance and as we saw, the Receiver had no personal knowledge of the details. On the whole it appears clear to me that the appellant had not failed to establish her right to be undisturbed in regard to the possession of the disputed item No. 5 as against the Receiver in the case. I therefore set aside the order of the court below and allow the petition filed by the appellant in that court. The appellant will get back item 5, if it has been taken from her with all the income collected therefrom. She will also get her costs here and in the court below, from out of the estate.