LAWS(MAD)-1977-8-24

GANESA VANNIAR Vs. K. VENGUSAMY AND OTHERS

Decided On August 22, 1977
Ganesa Vanniar Appellant
V/S
K. Vengusamy And Others Respondents

JUDGEMENT

(1.) 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:

(2.) 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/s. N. Perumal, 1977 S.C. 244 wherein Justice Beg, as he then was, observed as follows - -