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Judgment
Ramaprasada Rao, J.—The plaintiff, in O.S. No. 146 of 1966, originally on the file of the District Munsif''s Court, Thiruvaiyaru, and later
the plaintiff in C.S. No. 154 of 1967 on the file of this court, is the appellant. Hanuman Bank, prior to its liquidation advanced monies to the
second defendant on a security of immovable properties consisting of agricultural lands. After Hanuman Bank went into liquidation, the Official
Liquidator obtained a decree against the second defendant in 1961 and sought to bring the properties to sale. The first defendant in the suit was
successful bidder in the auction and after having been declared as such he filed C.A. No. 109 of 1965 on the file of this Court for delivery of
possession of the property purchased and delivery was ordered on 25th May 1965. The case of the plaintiff is that when the mortgage suit filed by
the Bank in liquidation was pending and before the termination of the lis in a manner known to law, the second defendant under Ex. P-1, leased out
the suit properties to him in April 1955. The plaintiff''s further case is that he continued to be in possession of the agricultural lands even after the
coming into force of the Tamil Nadu Cultivating Tenants Protection Act, 1955 and until the first defendant attempted to take corporeal possession
of the lands from him. According to the plaintiff when the first defendant went to take possession of the properties he obstructed. Thereupon, first
defendant filed E.A. No. 595 of 1976 on the file of the District Munsif''s Court, Thiruvaiyaru for removal of obstruction caused by the plaintiff. This
application was allowed. To set aside the said summary order, the plaintiff who obstructed filed the present substantive suit which was originally on
the file of the District Munsif''s Court, and later transferred to the Company side of this court. Thus, the controversy has once again arisen. It is
brought to our notice that during the pendency of the above execution application, the first defendant filed C. A. No. 8 of 1966 in this Court for
directing delivery of possession. In this application, the plaintiff along with others was made a party. In the absence of the plaintiff, an order for
delivery was made. Pursuant to this the first defendant''s case is that he took physical possession of the property on 28th March 1966 by executing
the above order for delivery. But, the plaintiff''s case is that there was no such corporeal delivery of the property, and that until he filed the present
action, he continued to be in possession of the property. Presumably because, he was ex parte in the main application for delivery of possession,
he filed an application to set aside the ex parte order made in C.A. No. 8 of 1966. Venkataraman, J. heard this application, but dismissed it
ultimately, making it, however, clear that the order in C.A. No. 8 1966 will not preclude the disposal of the substantial suit which is now under
consideration and by then filed by the plaintiff, on its own merits. N.S. Ramaswami, J. while disposing of the present suit has also made this
observation:
The learned counsel, who appeared for the first defendant herein has conceded that the order in C.A. No. 8 of 1966 will not bar the maintainability
of the present suit, and that his client would not put forth that objection to this suit.
The parties, therefore, went to trial as if the present action is the only substantial one in which the controversy was whether the plaintiff is entitled to
continue in possession of the suit property in his own right after having obtained such a right under the provisions of the Tamil Nadu Cultivating
Tenants Protection Act. The answer to this as found in the written statement inter alia was that as the plaintiff was inducted into possession during
the pendency of the mortgage action the lease, Ex. P. 1 is affected by the doctrine of lis pendens, and no right, therefore, can be projected under it
by the plaintiff, and he cannot, therefore, sustain this suit. Another objection which was alto substantial was that the plaintiff is not a cultivating
tenant entitled to the benefits of the protection under the Tamil Nadu Cultivating Tenants Protection Act.
The learned Judge framed the following issues on the material pleadings in this case:
Whether the plaintiff was a cultivating tenant on the date of dispossession, namely 28th March 1966?
Whether the suit is not maintainable for any of the reasons set out in the written statement of the first defendant?
Whether the summary order, dated 20th October 1965 in E. A. No. 595 of 1965 on the file of the court of the District Munsif, Thiruvaiyaru (O.
P. No. 192 of 1947 on the file of this court) is liable to be set aside?
Whether the plaintiff is entitled to recover possession of the suit properties in this suit?
To what relief, the parties are entitled?
He held that the suit was maintainable, and found on issue No. 1 that the plaintiff was a cultivating tenant and on the evidence he found that the
summary order for removal of the alleged obstruction by the plaintiff had to be set aside. Issue No. 4 was only in the alternative, but in view of the
concession made by the counsel appearing for the first defendant, apparently this issue was not proceeded with.
The plaintiff came into possession of the suit properties under Ex. P. 1 which is the lease deed, d. 28th April, 1955, he having been let into such
possession by the second defendant who was by then facing a lis filed by the Hanuman Bank pursuant to a mortgage executed by the second
defendant in favour of the Bank. In September 1955, the Tamil Nadu Cultivating Tenants Protection Act of 1955 came into force. The plaintiff''s
case is that he continued to be in possession of this property till 1965 and thereafter, when the first defendant as the auction purchaser attempted to
take possession of the properties in execution of the decree, and in pursuance of the sale of hypotheca in execution of such a decree. At one point
in the course of his judgment, the learned Judge referred to a concession made by the plaintiff that he was not in possession. But later, it transpires
that the plaintiff''s case was that forcible possession of the properties was taken from him, and therefore, he should be deemed to be in lawful
possession of the properties. In any event, in view of the concession made by the counsel appearing for the first defendant in the trial court that the
suit was maintainable as framed, this controversy links into insignificance. In answer to the specific case of the plaintiff that he is a cultivating tenant,
the first defendant''s case is that the lease Ex. P. 1, executed by the mortgagor at a time when the mortgage suit was pending, is hit by the doctrine
of lis pendens, and therefore, no right can flow under it. N.S. Ramaswamy, J. held of the Judgment debtor. He has to suffer therefore an order of
removal of obstruction in the ordinary course, but under the normal civil law. But, the question is, what is the impact which the special legislation
has on the normal processual civil law under which a litigant has certain rights. It is in this perspective that the scope and objective of the agrarian
legislation which has been introduced in our country has to be looked into and applied. The Legislation, such as the Tamil Nadu Cultivating Tenants
Protection Act, by itself is an Act for the protection from eviction of a cultivating tenant in certain areas in the State of Tamil Nadu. This beneficial
enactment has to be liberally construed in favour of the cultivating tenants by civil Courts whenever an occasion arises. This statutory right
conferred on a cultivating tenant and which springs from the special enactment has to be respected irrespective of any right which the normal civil
law can give to a litigant and which would, when placed in juxtaposition with the right under special enactment, be opposed and violative to it. It is
this special feature in such beneficial agrarian reforms that was noticed by the Supreme Court in G. Ponniah v. N. Perumal 1977 S.C. 244 wherein
Justice Beg, as he then was, observed as follows--
We are, therefore not concerned with any rights under any general or personal law which may enable the remainder-men to evict a tenant of a life-
estate holder. The terms of the statutory protection apply clearly to all tenancies governed by the Act irrespective of the nature of rights of the
person who leased and so long as the lessor was entitled to create a tenancy.
It cannot be disputed in this case that the second defendant had the requisite authority to create a tenancy when he executed a lease deed, Exhibit,
P.1 in favour of the plaintiff. Factually, there is no dispute either about the continuance in possession of the plaintiff after the execution of the lease
deed in his favour and after the coming into force of the Tamil Nadu Cultivating Tenants Protection Act. We have already referred to the fact that
the trial Judge has found that he was a cultivating tenant and this was on an appreciation of the materials placed before him. We have also accepted
his finding in that regard. In those circumstances, therefore, the first defendant cannot project his right under the common law as a purchaser who is
entitled to possession of the properties which are the subject matter of the purchase, free from obstruction and illogically seek for removal of
obstruction even by a tenant who is a cultivating tenant and who has obtained under the special law certain preferential protections and benefits
which cannot be lightly rejected. If, therefore, on the date when the first defendant sought for removal of obstruction under the common law, the
plaintiff did have a vested right in him under the Protection Act which gave him the benefit to continue in possession of the same, then the
processual law available under the common law cannot prevail, and the special right which the plaintiff has, by reason of the protective enactment,
would prevail and has to be worked out liberally and beneficially in favour of the cultivating tenant. We are afraid, we do not share the view of the
learned trial Judge that the doctrine of lis pendens would eclipse the special vested statutory right in favour of the plaintiff. We have already
explained ourselves and given our reasons as to why such a special right cannot be buttressed or ignored by reason of certain common law rights.
As the special has to prevail over the general, the plaintiff''s right as a cultivating tenant and the rights that flow from it have to be given due weight
and respect. The doctrine of lis pendens is again a mischievous remedy available under the CPC so as to thwart certain dealings between the
parties during the pendency of a particular litigation. But, the principle behind the doctrine cannot do away the vitals of the special benefits
conferred on a cultivating tenant by statute which has sprung from agrarian legislation and which has a specific purpose to serve in our and other
States. In this view of the matter, we are unable to accept that Exhibit P.1 is hit by the doctrine of lis pendens and that the plaintiff is not entitled to
project his statutory right successfully as against the claim of the first defendant under the common law as a purchaser of property in public auction
in execution of a mortgage decree. The Allahabad High Court, long before the introduction of such agrarian legislation, has thought about this
equitable principle, in Mt. Aziz Fatima v. Mikund Lala 1932 All. 480 where the learned Judges said:--
As the lease was executed pendente lite for 20 years at low rent, it was a transfer within the meaning of S.52, and being prejudicial to the interests
of the plaintiffs was not binding on them. But as N was the landlord when he granted the lease to the defendant, and it was his duty to arrange for
the cultivation of the land, the defendant had acquired tenancy rights in those plots under S. 19, Agra Tenancy Act, and being a statutory tenant
could not be ejected except by means of proceedings by way of ejectment taken only in the Revenue Court. The defendant, not being a trespasser
but a tenant, the claim for recovery of possession and and damages could not be sustained against him.
In the present case, as soon as Exhibit P.1 was entered into between the second defendant and the plaintiff, the jural relationship of landlord and
tenant has been created, and it cannot be snapped by the intervention of the force of common law which ought to give way to certain rights which
the legislature often creates by introducing special enactments. The plaintiff is entitled to protection under the Cultivating Tenants Protection Act
notwithstanding the factual position that the lease was granted at a time when the mortgage suit was pending and although prima facie it might
appear that the doctrine of lis pendens could be attracted on the facts and circumstances of the case. We have held that such a doctrine, in the
peculiar circumstances cannot divest vested statutory rights, and in this view, we set aside the judgment of the trial judge in so far as his finding is
against the plaintiff and allow the appeal. There will be no order as to costs.