GOVINDARAJAN Vs. K A N SRINIVASA CHETTY

JUDGEMENT

(1.) DEFENDANTS 1 to 4 are the appellants. The first respondent plaintiff filed O. S. No. 379of 1970 on the file of the District Munsif of Kancheepuram for a declaration that he is the lessee of the suit lands on the basis of a lease deed dated 15-10-1964 given by the owner, Namasivaya Chettiar. The lease was stated to be for a period of ten years. When the lessor and his brothers tried to take forcible possession of the properties, the plaintiff filed O. S. No. 37 of 1970 on the file of the District Munsif of Kancheepuram for an injunction restraining the lessor and his brothers from interfering with his possession and enjoyment. When that suit was pending, the dependants in. S. No. 379 of 1970 tried to trespass and interfere with the peaceful possession and enjoyment of the suit properties and, therefore, he filed O. S. No. 379 of 1970 for a declaration that he is a lessee in respect of the suit lands and for an injunction restraining the defendants from interfering with his possession and enjoyment. The defendants in this suit filed a written statement contending that they are the direct lessees under Namasivaya Chettiar for the past several years and the plea of trespass by the plaintiff is false and incorrect. The defendants also stated that the plaintiff was never in possession of the suit properties and that they had been in possession and enjoyment as tenants and that, therefore, the suit is liable to be dismissed. The defendants also submitted that they are cultivating tenants, that they are entitled to the benefits of the Cultivating Tenants Protection Act, and, that, therefore, the Civil Court had no jurisdiction to entertain the suit. Though in this written statement the defendants also pleaded that they were not parties to O. S. No. 37 of 1970 and that none of the allegations in the plaint in that suit will have any bearing in this suit or affect the rights of parties, later on it appears that these defendants filed an application voluntarily and impleaded themselves as defendants 6 to 11 in that suit.

(2.) THE trial Court, on a consideration of the oral and documentary evidence, held that the plaintiff was a lessee from the owner in respect of the suit lands, that he was in possession and enjoyment by cultivating the suit lands and that the defendants were neither the tenants under Namasivaya Chettiar nor were they in possession and enjoyment at any time. The trial Court also held that since the defendants were not the tenants, they are not entitled to the benefits of the Madras Cultivating Tenants Protection Act and since the suit is for a declaration and injunction against the trespassers, the suit was maintainable. Though the trial Court gave also a finding that the trespass on 2-7-1970 by the defendants had been proved and the suit was filed only on 4-7-1970, the suit was decreed declaring the plaintiff as the tenant and granting an injunction alone without directing the defendants to deliver possession. This was probably for the reason that though the defendants trespassed on 2-7-1970 which was mentioned as the cause of action for the suit, it was also stated by the plaintiffs in evidence that they had taken possession of the properties later on and they were cultivating and in possession pending the suit. Against the decree in O. S. No. 379 of 1970, defendants 1 to 4 preferred A. S. No. 7 of 1973 on the file of the learned Subordinate Judge of Kancheepuram. In the meantime, O. S. No. 37 of 1970 on the file of the District Munsif, Kancheepuram, filed by the plaintiff in this case against the owners was transferred to the Subordinate Judge's court, Kancheepuram and renumbered as O. S. No. 71 of 1975. In that suit in which the present defendants-appellants had impleaded themselves as parties, a compromise memo was filed by the plaintiff and defendants 6 to 17 in that suit. As already stated, defendants 6 to 11 in that suit are defendants 1 to 6 in o. S. No. 379 of 1970 which was decreed by the trial Court. Under this compromise, defendants-appellants before me disclaimed all interests in the suit lands and undertook not to interfere with the plaintiff's possession of the same. In view of this undertaking given in the compromise, the plaintiff agreed to exonerate the appellants herein from the claim in O. S. No. 37 of 1970. Under this compromise, which was filed in O. S. No. 37 of 1970, the defendants also agreed to withdraw the appeal in A. S. No. 7 of 1973 on the file of the subordinate Judge's Court, Kancheepuram. This compromise, among others, was signed by defendants 1, 3 and 4 and the counsel for the second defendant who are the appellants in this second appeal. This compromise was entered into on 4-4-1974. Thereafter, the plaintiff as respondent in A. S. No. 7 of 1973, filed i. A. No. 350 of 1975 in A. S. No. 7 of 1973 for recording the compromise and to dismiss the appeal as withdrawn. The appellants filed a counter contending that the compromise was not signed by all the parties concerned, that it amounted only to an undertaking to withdraw and could not be treated as having concluded the appeal itself. It was also stated that though the compromise memo filed by the parties contained a statement that the defendants have disclaimed any interest in the suit lands and undertook not to interfere with the plaintiff's possession, there was an oral agreement under which the defendants were to be permitted to remain in possession of the suit lands without any disturbance by the plaintiff. The learned Subordinate Judge held that all the parties have signed the document and that the signing by the advocate on behalf of the second defendant was legal and valid and there was an enforceable compromise between the parties. The Court below also overruled the other objections raised by the defendants. Accordingly, the lower appellate Court held that there was an enforceable compromise between the parties and recorded the compromise and dismissed the appeal as having been settled out of Court. At the same time the lower appellate Court, also gave a finding on the merits in the appeal and confirmed all the findings of the trial court. Ultimately, in the end of the judgment, the lower appellate Court said that the compromise is recorded and the appeal is dismissed in one paragraph and in another paragraph it stated that the appeal failed and it was dismissed as withdrawn. The defendants have preferred this second appeal against A. S. No. 73 of 1973. But in the memorandum of grounds the appellants have questioned the finding of the lower appellate Court that there was a legally enforceable compromise which was recorded by the lower Court.

(3.) THE learned counsel for the plaintiff-first respondent took a preliminary objection to the maintainability of the second appeal on the ground that ultimately the first appeal was dismissed as withdrawn on the basis of the compromise recorded by the Court and that, therefore, no second appeal is maintainable. On the other hand, the learned counsel for the appellants contended that the appeal was disposed of by a common order both in I. A. No. 350 of 1975 and A. S. No. 7 of 1973, that the lower appellate Court not only recorded the compromise and dismissed the appeal on the basis of that compromise but also gave a finding on the merits in the appeal itself and that, therefore, the second appeal is maintainable. He also contended that he had raised specific grounds in the second appeal itself against the recording of the compromise and that, therefore, he could question the recording of the compromise in the second appeal itself without a separate appeal against I. A. No. 350 of 1975.