KALYANASUNDARAM UDAYAR Vs. PAZHANIAYYA UDAYAR

JUDGEMENT

(1.) This second appeal has been posted before us on an order of reference dated 18-3-1981 by Maeswaran J. on the ground that there is a conflict of opinion as between two decisions of this Court Ganesan v. Madurai Achair, (1978) 91 Mad LW 6 (N. S. Ramaswami J.), on the one hand and Thangavelu Naicker v. Muthukumara Chettiar, (1979) 2 Mad LJ 369 (V. Balasubrahmanyan J.) on the other, on the scope of S. 23 of Tamil Nadu Act 40 of 1971, hereinafter referred to as the `Act'. However, after going through the said decisions we are of the view that there is actually no conflict between the views expressed by N. S. Ramaswami J. in Ganesan v. Madurai Achari, (1978) 91 Mad LW 6 and Balasubrahmanyan J. in Thangavelu Naicker v. Muthukumara Chettiar, (1979) 2 Mad LJ 369. We would like to refer to the legal position as enunciated in the said two decisions.

(2.) The respondent herein filed a suit for recovery of from the appellant- defendant. The suit was resisted by the defendant on the ground that he was entitled to the benefits of the Act and that the notice to quit was not valid. The trial Court held that the defendant was entitled to the benefits of the said Act and dismissed the suit on the ground of want of jurisdiction by the civil court to want of decree for possession. The unsuccessful plaintiff filed Appeal A. S. 90 of 1977 before the Sub-Court, Mayuram. In that appeal the only question which was taken up for consideration was as to whether the dismissal of the suit on the ground of want of jurisdiction to pass a decree for possession by the civil court could be sustained. The lower appellate court took the view relying on the decision of N. S. Ramaswami J. in Ganesan v. Madurai Achari, (1978) 91 Mad LW 6, that though the defendant had prima facie shown that he was a tenant under the plaintiff in respect of the suit site and that he was entitled to the benefits of the Act, still the plaintiff was certainly entitled to a decree for possession subject to the defendant's rights, if any, under the said Act. In this view, the lower appellate court set aside the dismissal of the suit by the trial court and passed a decree for possession, however, making it subject to the rights of the defendant under the Act. Aggrieved against the judgment of the lower appellate court, the defendant has filed the second appeal contending that the lower appellate court is in error in passing a decree for possession after having affirmed the view of the trial court that the defendant is entitled to the benefits of the Act.

(3.) The lower appellate Court has proceeded on the basis that notwithstanding the decree for possession granted by the civil court, the matter could still be agitated by the defendant before the forums constituted under the Act, and that therefore, the defendant will not be prejudiced by the decree being passed in favour of the plaintiff for possession in the suit. The learned counsel for the appellant points out that in the decision in Ganesan v. Madurai Achari, (1978) 91 Mad LW 6 the facts of the case were entirely different and the principle of that decision has been wrongly applied to the facts of this case by the lower appellate court. The learned counsel for the appellant then relies on the decision of Balasubrahmanyan J. in Thangavelu Naicker v. Mutthukumara Chettiar (1979) 2 Mad LJ 369, wherein the learned Judge has specifically held that in respect of matters to be decided by the authorities constituted under the Tamil Nadu Act 40 of 1971, the civil court has no jurisdiction in view of S. 23 of that Act. The learned counsel for the respondent, however, contends that as per the decision of N. S. Ramaswami J. in Ganesan v. Madurai Achari (1978) 91 MAd LW 6 the civil court has jurisdiction to pass a decree for possession even in cases where the defendant is found entitled to the benefits of the Act. In the light of the said contentions urged on behalf of the appellant, we have to consider the relevant provisions of the Act and see whether there is any conflict between the decisions referred above.