KANNAIYA NAIDU Vs. JAYARAMA CHETTIAR & ANOTHER

JUDGEMENT

(1.) The question that arises for determination in this appeal which has been filed against the dismissal of an application filed by the appellant under S.23(c) of the Tamilnadu Act IV of 1938 as amended by Act VIII of 1973 is whether S.23(c) of Tamilnadu Act IV of 1938 as amended by Act VIII of 1973 is applicable to this case. The first respondent obtained a decree against the appellant in O.S. No. 166 of 1963 and in execution thereof be brought the property to sale and it was purchased by the second respondent who it is contended purchased it for the benefit of the first respondent. The first respondent contended that the appellant was not entitled to the benefits of Act IV of 1938, for he does not own a single cent of land. He also repudiated the allegation that the property was purchased by the second respondent for the benefit of himself (first respondent).

(2.) On behalf of the petitioner -appellant, Ex. A -1, a sale deed executed by one Dhanapal Chettiar in his favour has been filed. But it was contended on behalf of the first respondent that the petitioner sold away that property so purchased under Ex. A -1 and in support of that assertion he filed Ex. B -1, a registration copy of another sale deed, dated 24th July, 1963 and it clearly shows that the petitioner has sold to one Pethusami Naidu for a sum of Rs. 700 the properly purchased by him under the sale deed, Ex. A -1. The petitioner further relied on Exs. A -2 to A -6, certified copies of chitta extracts and adangal extracts showing that one Kannan Naidu had raised crops in R.S. No. 307/11. But then, as found by the learned District Munsif, the petitioner's name is Kannaiya Naidu and he is son of Beeman alias Narayanaswami Naidu ; but the father of Kannan shown in Ex. A -2 is one Narayanaswami Naidu. Kannan whose name is found in Exs. A -2 to A -6 has filed an affidavit in which he has stated that R.S. 307/11 -54 cents in extent belongs to him and that he got the same under the settlement deed dated 22nd October, 1956 and has been in enjoyment of the same. Ex. B -3 is the settlement deed executed in his favour by his grandmother Thulasi Ammal. The name of the appellant is Kannaiya Naidu and his father's name is Beeman alias Narayanaswami Naidu; but in Exs. A.2 to A -6 the name of one Kannan is mentioned as the owner of R.S. 307/11 and his father's name is shown as Narayanaswami Naidu. Ex. B -4 is a patta in the name of Kannan Naidu and Exs - B 5 and B -6 are kist receipts in the name of Kannan Naidu and they relate to R.S. 307/11. Therefore, it is that the learned District Munsif found that the affidavit of Kannan and Exs. B -3 to B -6 conclusively prove that the appellant is not the owner of R.S. 307/11 but another Kannan is the owner of the land. Further in Ex. B -2 a certified copy of the counter filed by the appellant in E.P. 38 of 1964 be has categorically stated that he did not own any moveable or immovable properties. From all these circumstances, the learned District Munsif concluded that the appellant was not entitled to the benefits of the Tamil Nadu Act IV of 1938 as amended by the Tamilnadu Act. 8 of 1973 end dismissed the petition filed under S.23 -C of the Tamilnadu Act IV of 1938 as amended by Act 8 of 1973. That finding of fact supported by so much of evidence cannot now be canvassed.

(3.) The learned Subordinate Judge, however, on appeal, merely dismissed the appeal holding that the sale of the property in favour of the second respondent was after the aforesaid Act came into force and as such S. 23 -C would not apply. The grievance of the learned counsel for the appellant is that the aforesaid judgment of the learned Subordinate Judge is not a valid judgment at all, for, first of all, the learned Subordinate Judge has not dealt with the question whether the appellant is an agriculturist under Act IV of 1938 as amended by Act 8 of 1973, and secondly the judgment does not conform to O. 20 R. 4 (2) and O. 41 R. 31C.P.C., and it is not in accordance with law. He has cited a number of decisions to show that such a judgment has to be set aside and the case remanded to the lower appellate court for fresh hearing.