DALE NARAYANA RAO Vs. KOLLU NOOKARAJU

JUDGEMENT

(1.) THIS appeal is directed against the order dated 31 -8 -1984 passed in I.A. No. 759 of 1983 in I.A. No. 879 of 1982 in O.S. No. 86 of 1981 on the file of the Subordinate Judge Peddapuram. The first respondent herein laid the suit O.S. No. 245 of 1978 on the file of the District Munsif, Peddapuram on 11 -8 -1978 against the respondents 2 and 3 herein for grant of permanent injunction. Along with the suit, the first respondent herein filed a petition I.A. No. 859 of 1978 for grant of ad -interim injunction during the pendency of the suit, but that petition was dismissed on 12 -10 -1978. The case of the first respondent herein is that taking advantage of the dismissal of the injunction petition, respondents 2 and 3 herein trespassed into the suit land and got into possession thereof. The first respondent herein filed an appeal C.M.A. No: 35 of 1978 in the Court of the Subordinate Judge, Kakinada against the order dated 12 -10 -1978 dismissing the petition for grant of ad -interim injunction: That C.M.A., was allowed by the Subordinate Judge, Kakinada and the order of the trial court was set aside. Thereafter, the first respondent herein filed an O.P.., which was later registered as O.S. 86 of 1981 on the file of the Subordinate Judge, Peddapuram for declaration of title and recovery of possession of the suit land. During the pendency of the suit the first respondent herein on an application got a receiver appointed in I.A. No. 879 of 1982 for managing the property and auctioning of the lease hold rights of the suit property. At that stage, the appellant herein filed a petition I.A. No. 759 of 1983 in I.A. No. 879 of 1982 in O.S. No. 86 of 1981 before the Subordinate, Judge, Peddapuram, for discharging the receiver on the ground that he himself is in possession and enjoyment of the land in question in his own right as a statutory tenant. He further contended that he is the cultivating tenant of the petition scheduled land since April 1979 for annual rent in cash of Rs. 2,500/ - to be paid to the second respondent on or before the 13th January of every year. When the 2nd respondent tried to dispossess him, he had filed a petition A.T.C. No. 46 of 1980 on the file of the Special Officer (District Munsif's Court) Peddapuram which was subsequently transferred to the court of the Special Officer (District Munsif's Court) Pattipadu and re -numbered as ATC No. 1 of 1983 and that in those proceedings, the appellant herein was declared as statutory tenant of 2nd respondent herein, the 1st respondent herein the claim of the appellant herein and contended inter alia that the proceedings in A.T.C. 1 of 1983 were the result of collusion between the appellant herein and the 2nd respondent herein and he further contended that, in as much as he is not a party to those proceedings, the decision in A.T.C. No. 1/83 declaring the appellant herein as the statutory tenant of the land in question is not binding on him. The lower court, while considering the question whether the Receiver already appointed in respect of the suit land was liable to be discharged, made certain observations that the proceedings in A.T.C. No. 1 of 1983 are collusive in nature and further observed that, in view of the decision in C.M.A. No. 35 of 1972 (Ex. B1) the first respondent herein alone had title to the property in question and was entitled to be in possession thereof. The learned Judge has even gone to the extent of observing that the appellant herein is not a statutory tenant and that he is a trespasser.

(2.) SRI . P.V.R. Sarma, the learned counsel for the appellant, contended that in view of the fact that the appellant is in possession and enjoyment of the suit land and also in view of the fact that the proceedings in A.T.C. No. 1/1983 declaring the appellant as the statutory cultivating tenant have become final, the Receiver appointed in the suit filed by the first respondent herein is not liable for dispossession and that the court below erred in law in dismissing the petition filed by the appellant herein for discharging the receiver.

(3.) NOW the question that arises for consideration is as to what rights the appellant is entitled in law in the circumstances of the case. Of course, the petitioner, who is termed by the court below as a trespasser into the suit land, on account of which he being in possession of the property thereof is entitled to move the court below for being impleaded as a party -defendant and put his defence in support of his contention that he is a cultivating tenant and as such his rights cannot be taken away by appointment of receiver. Sub -rule 2 of Rule 1 of Order 40 C.P.C. lays down that nothing in that rule shall authorise a court to remove from possession or custody of property of any person whom any party to the suit has not a present right so to remove. This sub -rule contained an exclusive proviso. In Chiruthakutty V. Chandukutty Nambiar ( : 1958 Ker. L.T. 204) it was observed thus: