C.R. Malayalam vs Official Receiver and Another

V. Kanagaraj, J.—The above second appeal is directed against the judgment and decree dated 13.12.1988 made in A.S.No. 26 of 1987

by the Court of Subordinate Judge, Karur thereby confirming the judgment and decree dated 13.1.1987 by the Court of Additional District

Munsif, Kulithalai.

The appellant herein has filed the suit praying for the grant of a decree of permanent injunction restraining the defendants from in any manner

interfering with the plaintiff''s peaceful possession and enjoyment of the plaint schedule properties and for costs and the said suit having come to be

dismissed on trial and on first appeal, the plaintiff has preferred this second appeal.

Adverting to the facts of the case, as projected by the appellant in the plaint, it comes to be known that consequent to the declaration of the

original owner an insolvent in court proceedings, the plaintiff became the successful bidder for the suit properties in the court auction lease as a

lessee in the Year 1972 and is in possession of the same till date cultivating the suit property with different crops and he is entitled to the benefits of

Tamil Nadu Act 25 of 1955; that the first defendant ill-motivated, from the year 1981 was postponing the receipt of the lease amount from the

plaintiff wanting to lease out the plaint schedule in public auction; that he cannot be evicted by such means since he is entitled to the benefits of the

Tamil Nadu Cultivating Tenants Protection Act, but in the meanwhile, the first defendant issued a notice dated 20.10.1981 proclaiming his intention

to lease out the plaint schedule properties in public auction; that he has got a right to continue in possession and enjoyed of the suit property and in

view of the public notice issued by the first defendant, apprehending dispossession at the hands of the first defendant, the plaintiff has filed the suit

for permanent injunction.

The plaintiff would further state that since one Aravandi earlier attempted to trespass into the last item of plaint schedule properties, he filed the

suit in O.S.No. 1257 of 1979 praying for the relief of permanent injunction and the same, after contest, was decreed and the appeal preferred by

the individual is pending; that in the meantime, the auction is said to have been conducted on 16.11.1981, in which the second defendant is alleged

to have become the successful bidder and hence apprehending danger to the physical possession and enjoyment of the suit property at the hands

of both the defendants, the plaintiff has filed the suit against the both.

On the contrary, in the written statement filed on behalf of the first defendant, it would be urged that the first defendant took possession of the

suit properties by virtue of the order passed in I.P.No. 42 of 1972 on the file of the Court of Subordinate Judge, Trichy, that the same had been

taken on lease by the plaintiff in public auction for Rs. 2,036 and the same was confirmed and the lease chit was executed; that the plaintiff, as

such, is neither a cultivating tenant not entitled to the benefits of Tamil Nadu Act 25 of 1955; that the first defendant, in his capacity as the Official

Receiver, has to resume possession and the plaintiff is bound to surrender possession of the suit properties on the expiry of the lease period but

without doing so, the plaintiff is continued to be in possession as a trespasser and hence on an advertisement for lease, on 16.11.1981, the auction

was held and the second defendant became the successful bidder and the lease chit had been executed in his favour on the same day and it is the

second defendant, who is entitled to enjoy the properties for a period of one year; that the second defendant had taken possession of the leasehold

property on payment of the entire lease amount and he is continuing in possession and enjoyment of the same and on such grounds, the first

defendant would pray for dismissing the suit with costs.

The same version would be reflected in the written statement separately filed on behalf of the second defendant also and hence tracing the same

would only be a time consuming factor.

Based on the above pleadings, as pleaded by parties, the trial court having framed for issues, conducted trial of the case, wherein the plaintiff

would examine himself as P.W.1 for oral evidence on his side and would mark 12 documents as Exs.A-1 to A-12. On behalf of the defendants,

one Kumarasamy had been examined as D.W.1 for oral evidence on behalf of the defendants and 6 documents had been marked as Exs.B-1 to

B-6.

The trial court, having appreciated the evidence thus placed on record in the context of the facts and circumstances of the case in its own way,

would remark that under Ex.A-1, there is no room to think that the suit property had been entrusted with the custody of the plaintiff for more than

one year and the same had been further extended for the subsequent two years on the same terms and conditions and such an extension cannot be

taken for granted that he is entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act and that there should not be any more

auction held to decide the lease period of the land belonging to the insolvent and therefore under Ex.A-1, the plaintiff is disentitled to claim any right

as though the same is available for him as in the case of having the relationship between the landlord and tenant and that he is bound by the terms

and conditions of the contract entered into under Ex.A-1 and subject to the other conditions. The trial court further expressing that the act of court

will prejudice no man, remarked that in the event the court grants the relief as sought for by the plaintiff, it would prejudice the right of the original

owner, the insolvent, and on such ground had ultimately dismissed the suit.

Aggrieved, the unsuccessful plaintiff preferred an appeal in A.S.No.-26 of 1987 before the Court of Subordinate Judge, Karur and the said first

appellate court having framed five points for determination and having gone into the aspect in the same manner has remarked that the

appellant/plaintiff has been unreasonably dragging on the matter taking advantage of the court proceedings, whereas, he should have sought relief

only in the court of Insolvency and not in the civil forum. With such remarks, the first appellate court would also ultimately dismiss the appeal with

costs thereby confirming the judgment and decree of the trial court.

It is only aggrieved against such concurrent findings rendered by both the courts below, the plaintiff before the trial court has come forward to

prefer the above second appeal on certain grounds as brought forth in the grounds of appeal and this Court has admitted the above second appeal

for determination of the following substantial question of law:

Whether the courts below are right in discountenancing the claim of the appellant that he is a cultivating tenant entitled to the protection on that

basis on the ground that the lease was granted by the Official Receiver appointed in insolvency?

During arguments, the learned Counsel appearing for the appellant would submit that the suit properties are the agricultural lands falling under

different schedules and the same had been rented out in favour of the plaintiff on a lease rent of Rs. 2,036 p.a. and that he was enjoying the same

on such terms and conditions upto the Year 1980; that the plaintiff had never been in default of the rent and had cleared the rent upto date; that

while so, on 20.10.1981, the first respondent/Official Receiver started auctioning the leasehold rights of the property in the public auction and the

second respondent became the successful bidder and both the respondents joining hands with each other are attempting to evict him from the suit

property and hence the plaintiff filed the suit for permanent injunction. At this juncture, the learned Counsel for the appellant would cite a judgment

of this Court delivered in M.R.S. Ramakrishnan v. The Assistant Director of Ex. Servicemen Welfare (District Soldiers, Sailors and Airmen

Board), Tiruchirapalli and Ors. (1983) 1 M.L.J. 140, wherein it has been held:

... the question now is whether the respondent could take forcible possession of the premise from the petitioner even assuming that his possession

of the premises is not lawful.

Section 108 of the Transfer of Property Act sets out the rights and liabilities of lessor and lessee. Clause (q) of that Section imposes a liability on

the lessee to put the lessor into possession of the property on the determination of the lease. Such liability arises whether the lease is terminated by

notice or by efflux of time. The question is, if the lessee failed to restore vacant possession in breach of the obligation referred to in clauses (q) of

the Act, what are the remedies available to the lessor and whether those remedies include a right to re-enter the property by force without the

tenant surrendering possession of the property voluntarily? On the question of lessor''s right of re-entry, there is difference between English Law

and Indian Law. While English Law recognises the right of the lessor to take forcible possession against the will of the lessee in certain

circumstances, the Indian Law does not recognise such right of re-entry without due process of law.

On the contrary, on the part of the respondents, the learned Counsel appearing on their behalf besides relying on the pleadings of the

respondents as put forth in the written statement and the findings of the courts below, would cite a Full Bench judgment of this Court delivered in

Arumugha Gounder v. Ardhanari Mudaliar and Ors. (1975) 1 M.L.J. 385 : (1975) 88 L.W. 113, wherein it has been held:

So when the act of the Receiver in letting out the land in the suit is an act of the court itself and it is done on behalf of the court the whole

purpose of the court taking possession through the receiver appointed by it is to protect the property for the benefit of the ultimate successful party.

If that is the essence and purpose of appointment of a Receiver, as we hold it is, it will be difficult to agree that by a literal application of the Tamil

Nadu Cultivating Tenants Protection Act, it could be put beyond the reach of the court to give relief to the successful party entitled to possession.

Not only actus curiae neminem gravabit (an act of the court shall prejudice no man) but also the doctrine of the property being in custodia legis

coupled with public policy in rendition of proper justice, and conservance of power therefore would be valid and effective reasons for our view

that the intention of the act is not to extend the protection to the tenant or the Receiver and thus defeat justice eventually. Actus legis neminem est

damnosus that is to say an act is law shall prejudice no man, is another aspect of public policy...

Yet another judgment cited by the learned Counsel for the respondents is also one delivered by this Court in Arulmighu Ammachi Ayyanar

Mandu Koil, Sennagarampatti Village by E.O., having its office at Arulmighu Kalayanasundareswara Temple, Melur v. Alagu Karuppannan

Ambalam (1996) 2 L.W. 832, wherein it has been held:

When admittedly the petitioner is the owner of the property, the respondents cannot get an order of injunction unless they prove their right to be in

possession. Even if they are in possession, if it is not a lawful possession, they are not entitled to get injunction as against the true owner. In this

case, as per the terms of the auction, the respondents were bound to give up possession and they had been doing it in the previous faslis. The

courts blow ought to have drawn necessary inference therefrom that every successful auction bidder is bound and used to surrender possession

after the harvest as contended by the petitioner. In such circumstances, the respondents are not entitled to have the relief of injunction, which is an

equitable remedy particularly when they have no right to be in possession. Hence, the orders of the courts below granting injunction in favour of the

respondents are unsustainable.

Though the respondents claimed that they entered into possession immediately after the leases by auction, their right to be in possession ceased

when the period expired. The respondents cannot hold the temple to ransom, and claim equitable relief of injunction in a civil court.

The other judgment cited on the part of the respondents is one delivered by the Full Bench of the Apex Court in Murlidhar Jalan (Since

Deceased) through his L.Rs. v. State of Meghalaya and Ors. (1997) 3 L.W. 205, wherein it has been held:

There is no force in the contention of appellant. It is an admitted position that renewal was not granted. Thereby, the previous lease stood expired

and the relationship as tenant and landlord came to be terminated. He accepted the title of the Government; thus thereafter, he continued to be in

possession as a trespasser. It is true that a lower level officer accepted the rent; and recognition was obviously made on a mistaken impression that

the land was required for a public purpose; but on the basis thereof, it cannot be construed that the title of the appellant was confirmed by the

conduct of the Government. Accordingly, the declaration of title as landholder cannot be granted. The High Court, therefore, was right in refusing

to grant the relief.

Assessing the merit of the case in the context of the pleadings and having regard to the arguments of both sides and the judgments of the courts

below what comes to be known is that on facts and on a wide discussions held in evidence, both the courts below have concurrently held that the

appellant/plaintiff is not a cultivating tenant entitled to the benefits of Act 25 of 1955. Since the subject matter has been let out in favour of the

appellant in the auction held in the year 1972 pertaining to the conditions of the auction lease agreeing which alone, the appellant/plaintiff

participated in the auction and having become the successful bidder, he was entrusted with the custody of the suit property for one year and then

on two occasions, the first respondent herein, for reasons best known, extended the lease on such specific conditions as have been imposed at the

time of entrusting the property the first time and at the subsequent year when it was decided to lease out the property in public auction objecting to

the same on ground that the appellant is a cultivating tenant entitled to the benefit of the Act has landed in the civil forum of law seeking the relief of

permanent injunction, for which it had been concurrently held in a uniform manner by both the forums below that he is not entitled to such

protection and the very forum in which he had instituted the suit was faulty and hence the very suit as instituted by the appellant/plaintiff was not

maintainable and have rejected his plea by dismissing the suit and appeal with costs.

So far as the judgment cited in favour of the appellant, reported in M.R.S. Ramakrishnan v. The Assistant Director of Ex. Servicemen Welfare

(District Soldiers, Sailors and Airmen Board) (1983) 1 M.L.J. 140, wherein clarity is given for Section 108 of the Transfer of Property Act, which

sets out the rights and liabilities of the lessor and lessee and the same is inapplicable to the case in hand since it is not the question that is to be

sorted out here.

On the contrary, in the judgment cited in favour of the respondents, reported in Arulmighu Ammachi Ayyanar Mandu Koil, Seengarmpatti

Village by E.O. v. Alagu Karuppannan Ambalam (1996) 2 L.W. 832, it has been very clearly stated that the lessee cannot get an order of

injunction unless he proves his right to be in possession; that even if he is in possession, if it is not a lawful possession, he is not entitled to get the

order of injunction as against the owner; that though it is claimed that he entered into lawful possession immediately after the lease by auction, his

right to be in possession ceased, when the period expired and the lessee cannot claim equitable relief of injunction in a civil suit. Laying emphasis

on this proposition held by the single Judge of this Court, the Full Bench of the Apex Court in a case reported in Murliadhar Jalan (Since

Deceased) through its L.Rs. v. State of Meghalaya (1997) 3 L. W. 205, has also held that it is an admitted position that renewal was not granted;

that thereby the previous lease stood expired and the relationship as tenant and landlord came to be terminated. These two propositions of law

held by the single Judge of this Court and the Full Bench of the Apex Court aptly apply to the case on hand and if a decision has to be rendered

following these propositions, it must be stated that the appellant herein has absolutely no case nor could he claim to be in lawful possession nor

could the court also, based on such plea, grant an injunction as prayed for and hence his claim had been rightly rejected on facts and as held by the

upper forums of law in the above judgments cited on the part of the respondents.

On the above discussions, the only decision that could be arrived at by this Court is to declare that both the courts below have rightly held on

facts and circumstances and in application of the proposition of law that the appellant is not a cultivating tenant and he is not entitled to the

protection on that basis thus rejecting the claim of the appellant once and for all. There is absolutely no legal infirmity or inconsistency or patent

error of law nor perversity in approach seen in the decisions arrived at by the trial court and the first appellate court as well in a concurrent manner

which do not at all call for any interference by this Court. No valid or tangible reasons have also been assigned on the part of the appellant for this

Court to cause interference into the concurrent findings of the courts below.

Moreover, in the recent judgment of the Apex Court rendered in a civil appeal arising out of SLP (Civil) dated 16.4.1999 delivered in the case

of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, , it is categorically held in the following manner:

The right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in

accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be

maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds.

The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The

substantial question of law has to be distinguished from a substantial question of fact.

It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first

appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but

even where it has rejected the witnesses accepted by the trial court, the same is not ground for interference in second appeal when it is found that

the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one

drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High

Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate

court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by

the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

In result, the above second appeal fails and the same is dismissed with costs throughout.

The judgment and decree dated 13.12.1988 made in A.S.No. 26 of 1987 by the Court of Subordinate Judge, Karar thereby confirming the

judgment and decree dated 13.1.1987 by the Court of Additional District Munsif, Kulithalai is hereby upheld and confirmed.