Veerasami Mudali vs P.R. Venkatachala Mudali and Others

Jackson, J.—Plaintiffs in two connected suits Nos. 475 and 476 of 1922 on the file of the Court of the District Munsif of Poonamallee

brought u/s 9 of the Specific Relief Act were unsuited on the ground that on the date of the suits, the plaint-lands although trespassed upon by

defendants were leased to others and therefore only their lessees and not plaintiffs themselves were entitled to sue. This petition is brought in order

to revise that decision.

Plaintiffs have their remedy by way of suit and in such circumstances this Court will not ordinarily interfere by way of revision Devata Sri

Ramamurthi v. Venkata Sitarama-chandra Row (1914) M.W.N. 95. But if the remedy is clear, the parties will not necessarily be driven to another

suit Sri Krishnadoss v. Chanduk Chand ILR (1908) Mad 334. Therefore the question for determination in this case resolves itself into whether

there is clear authority supporting or controverting the decision of the District Munsif.

There has been sharp divergence of judicial opinion upon the point as was clearly revealed when it came before a Full Bench of the Allahabad

High Court. Blennerhassett, J., could see no reason why a landlord who has put a tenant in possession should not himself sue to eject a trespasser.

Edge,C.J., affirmed as prevailing all the world over that when a man creates a tenancy under him which entitles the tenant to the exclusive use of

the property the man creating the tenancy cannot have any right to actual possession so long as the tenant is entitled to possession. It was

accordingly held with the concurrence of four other Judges that in these circumstances plaintiff might be entitled to a declaratory decree; that the

trespasser could not interfere with his right to receive rent; and a decree to be put into possession of the rents; but so long as he did not himself

possess the right to enjoy physical possession he could not eject the trespasser. Sitaram v. Ram Lal ILR (1896) All 440.

Two years later the question came before a Bench of this Court, which assumed it to be an elementary rule that a plaintiff who seeks possession

must show that at the date of the suit he was entitled to such relief. Ramdnadhan Chetty v. Pulikutti Servai ILR (1898) Mad 288.

So far the law on the matter was clear and the next Madras ruling Jaganndhachari v. Rama RayarI.L.R. (1904) Mad. 238 hardly affected the

previous decisions, for it was held that the landlord must be entitled to possession at the time of suit, and he was so entitled in that case because the

lease had terminated immediately after the dispossession of the tenant by a third person and the tenant was no longer interested in the matter. But

unfortunately the head-note to this ruling is drafted as if affirming that a landlord can always bring a suit for possession when his tenant has been

dispossessed by a third party. For this unqualified statement there might seem at first to be better authority in Rangaswami Aiyangar v. Krishna

Goundan (1910) M.W.N. 838 when Sankaran Nair, J. sitting alone does appear to allow a landlord to sue for physical possession of property of

which his tenant had been dispossessed. But though that is the effect of the judgment the reasoning proceeds on the assumption that it is only a

question of receiving rent, a matter about which, as Sir John Edge showed in Sitaram v. Ram Lal ILR (1896) All 440 (F B), there is no difficulty.

An earlier Madras case is cited Innasi Pillai v. Sivagnana Desigar alias Gnana Sambanda Pandara Sannadhi (1894) 5 M.L.J. 95 which also is

entirely confined to the question of rent, and before concluding Sankaran Nair J. makes it clear that he is not differing from Ramanadhan Chetty v.

Pulikutti Servai ILR (1898) Mad 228 : 8 M.L.J. 121. It is not an easy judgment to understand but it is no authority for holding that the landlord can

sue in these cases.

In Krishnan Nambudri v. Secretary of State (1909) 19 M.L.J. 347 Wallis J., and Abdur Rahim, J. re-affirmed Ramanadhan Chetty v. Pulikutti

Servai ILR (1898) Mad 288 and its statement of the elementary rule.

Thus it may be said that at this date there was no real difference of opinion and the ruling of the Allahabad Full Bench prevailed.

In Ambalavana Chatty v. Sirigaraveln Odayar (1912) M.W.N. 669 a plaintiff who had long been out of possession seems to have suggested

that if his tenant had been in possession (which was not the fact) there would be no bar of limitation. His plea was rejected on the facts but his

hypothesis was fully discussed by Sundara Aiyar, J. who has assembled the. various rulings on the point.

His Lordship says that it is held that the landlord, where his tenant is ousted by a trespasser, may sue under 5.9 of the Specific Relief Act in

Rangaswami Aiyangar v. Krishna Goundan (1910) M.W.N. 838 Jugannadhachari v. Rama Rayar ILR (1904) Mad. 238 and Innasi Pillai v.

Sivagnana Desigar (1894) M.L.J. 95. But as shown above none of these cases is real authority for that broad proposition. He acknowledges that

Ramanadhan Chetty v. Pulikutti Servai ILR (1898) Mad 288 : 8 M.L.J. 121 and Krishnan Nambudri v. Secretary of State (1909) 19 M.L.J. 347

are against him, but on the whole is inclined to hold that the landlord has a cause of action (p. 155). This opinion, it may be noted, is obiter and is

not very strongly expressed.

In 1914 it was held in Somai Ammal v. Vellayya Sethu-rangam (1914) 29 M.L.J. 233 that if a landlord had given a lease to a tenant the

landlord might eject a trespasser in order to put his tenant into possession. The tenant in that case had not been put in possession at all but was

anxious to obtain possession. "" Such a case seems to proceed on the assumption that the landlord has a right to immediate possession in order to

fulfil his contract and the elementary rule in Ramanadhan Chetty v. Pulikutti Servai ILR (1898) Mad 288 would not then be infringed. It is not as

though only the tenant had the right of immediate possession.

In 1915 in Tiruvengada Konatt v. Venkatachala Konan I.L.R (1915) M. 1042 it was ruled that though a landlord is not. entitled to immediate

or khas possession, he may obtain a decree for the possession of the reversion and for formal possession. This ruling practically follows Sitaram v.

Ram Lal I.L.R (1896) All 440It also questions whether the obiter dictum in Ambalavana Chetty v. Singaravelu Odayar (1912) M.W.N. 669 is not

too broadly stated.

In 1916 the question came before Oldfield and Phillips, JJ., in Kathiri Kulli Musalim v. Chek Kutti Musaliar (1916) 59 W. 330. They held that

a landlord could sue to enable himself to fulfil his contract to give or restore possession to his tenant. Of course if the ruling stopped at the words

to give "" it would merely re-affirm Somai Ammal v. Vellayya Sethurangam (1914) 29 M.L.J. 233 but the addition of the words "" to restore "" opens

up the whole question, and in effect this is a ruling contrary to Ramanadhan, Chetty v. Pulikutti Servai ILR (1898) Mad 288. Oldfield, J. begins by

remarking that the exposition of the law in Ambalavana Chetty v. Singaravelu Odayar (1912) M.W.N. 669 is consistent with the decisions in

Narayanaswami Naidu Garu v. Yerramilli Ramakrish-nayya ILR (1910) M. 499 and Somai Ammal v. Vellayya Sethurangam (1914) 29 M.L.J.

The former merely states what is more elaborately developed in the latter ruling that a landlord can sue in order to fulfil his contract to put his

lessee in possession. Of course, the broader proposition in Ambalavana Chetty v. Singaravelu Odayar (1912) M.W.N. 669 that he can sue

whenever his tenant is dispossessed is not inconsistent with these rulings. Then Oldfield, J. finds that these rulings admit exceptions to the general

rule; though it seems that they establish only one exception, if it can indeed be called an exception. The rule is that on the date of the suit the

landlord must show that he has a right to be in possession. If he has never put his tenant in possession and has to get possession in order to do so,

he has a right to be in possession, and his suit is not in contravention of the rule. But when it is also claimed that after a landlord has put his tenant

into possession and that tenant has been dispossessed, the landlord may sue to restore his possession, it is not to set up an exception to the rule, it

is to negative the rule altogether. Oldfield, J. proceeds that he cannot follow Krishnan Nambudri v. Secretary of Stale (1909) 19 M.L.J. 347 in so

far as it rules that a landlord cannot give or restore. Krishnan Nambudri v. Secretary of State (1909) 19 M.L.J. 347 is not concerned with the

question whether he can give; but it certainly rules that he cannot restore and in declining to follow this ruling, Oldfield, J. is maintaining the opposite

view and overriding Ramanadhan Chetty v. Pulikutti Servai ILR (1898) Mad 288. No doubt his Lordship seeks to distinguish this ruling by finding

on the facts that the trespasser colluded with the tenant, and is therefore (see concurring judgment of Phillips, J.) only the licensee of the tenant

against whom the landlord can have no cause of action during the continuance of the lease. But in Ramanadhan Chetty v. Pulikutti Servai ILR

(1898) Mad 288 although it was alleged in the plaint that the tenant and trespasser had colluded, there is no finding to that effect nor any mention

of collusion in the body of the judgment. When their Lordships lay down the elementary rule they are not considering collusion.

Kathtri Kutli Musaliar v. Chek Kutti Musaliar (1916) 59 W. 330 must be taken as contrary to Ramanadhan Chetiy v. Pulikutti Servai I.L.R

(1898) Mad 288. In fact Phillips, J. practically states as much in his concluding sentence.

The whole question was then reviewed by Wallis, C.J. in Mohideen Rowther v. Jayarama Aiyar ILR (1898) Mad 288. The principle

underlying the rule is fully explained and the three ruling cases--Ramanadhan Chetty v. Pulikutti Servai ILR (1898) Mad 288, Krishnan Nambudri

v. Secretary of State (1909) 19 M.L.J. 347 and Sitaram v. Ram Lal ILR (1896) All 440. are approved. The acceptance of the obiter dictum in

Ambalavana Chetty v. Singaravelu Odayar (1912) M.W.N. 669 as authority is deprecated with an expression of regret that Sitaram v. Ram Lal

ILR (1896) All 440 was hot brought to the notice of the learned Judge. The learned Chief Justice even goes so far as to find that the landlord

cannot sue in order to fulfil his contract (page 940) differing from the view already expressed by Sadasiva Aiyar, J. in Somai Ammal v. Vellayya

Sethurangam (1914) 29 M.L.J. 233 which view Sadasiva Aiyar, J. re-affirms in a dissenting judgment in this case.

In Uday Kumar Das v. Katyani Debt ILR (1922) C 948 it is held that the view of Sundara Aiyar, J. in Ambalavana Chetty v. Singaravelu

Odayar (1912) M.W.N. 669 cannot be justified on principle and is opposed to what is regarded by Lord Alverstone, C.J. as well-established

doctrine Walter v. Yalden (1902) 2 KB 304.

I think it clear from the above examination of the authorities that the view of the learned District Munsif is well supported and there is no

justification for revision. I consider that the question is concluded by Sitaram v. Ram Lal I.L.R (1896) All 440, Ramanadhan Chetty v. Pulikutti

Servai ILR (1898) Mad 288 and Mohideen Rowther v. Jayarama Aiyar ILR (1920) M. 937. The petition is dismissed with costs.