KOMARASWAMI PILLAI Vs. SRI SOUNDARESWARASWAMI TEMPLE

JUDGEMENT

(1.) This is an appeal against the order of the District Judge of Tanjore appointing a receiver in O. S. No. 2 of 1929. Some of the defendants in the suit prefer this appeal. The plaintiff- respondent filed the suit for partition of his share in a certain village praying that the Court should pass a decree directing that the lands in the suit village be divided by metes and bounds and that the lands appertaining to his 9 and 7/16ths pangus in Scheduls A and C might be delivered to him and that the lands in Schedule B might be so divided, and the lands over which the plaintiffs has to get his melwaram may also be ascertained and the melwaram right in these lands may be delivered to him. In the alternative it was prayed that if it is contended that the lands in the separate enjoyment of the various pangudars have been divided and exclusively belong to them, and if the Court comes to the same conclusion, then the possession of the lands mentioned in Schedule D may be confirmed to the plaintiff and the rest of the undivided lands whether enjoyed in common by all the pangudars or only by some of the pangudars may be divided and the plaintiff's share may be delivered to him.

(2.) The village is a mirasi one in Tanjore District in which there are occupancy raiyats. I may say at once that the suit has proceeded hitherto on the supposition that the village is one under the Estates Land Act. At a certain stage the plaintiff applied to the Collector to be declared as the senior proprietor Under Section 3, Clause 5, Estates Land Act, to facilitate collection of rent. The defendants objected to the same on the ground that a suit was pending before the Court and it was refused, apparently on the ground that the plaintiff did not show that he owned the largest fraction of the property. There are admittedly three classes of lands in the village: (1) iruvaram lands, (2) lands in which the tenants have got occupancy rights and (3) waste lands and forest which belong to the melwaramdar. How the iruvaram has arisen in the village it is unnecessary to inquire at the present stage. They are perhaps private lands of the landholder. The defendants did not object to the division of the waste lands. Certain facts are admitted which are these. The village which consists of 40 pangus had at one time belonged absolutely to one inamdar, but it has now been alienated in various directions to various persons. The plaintiff owns 9 and 7/16ths pangus. The defendants say that they are entitled to about 20 pangus. The plaintiff has got documents of title of 1873, 1876 and 1881 and it is an important point to be observed in this ease that the 73 defendant and the 59th defendant who did not oppose the appointment of receiver, own 7 pangua and 2 pangus respectively and they have also documentary evidence which is admitted. The other defendants have no documentary evidence to connect them with the original pangudars but the number of pangus that they own is not disputed. The plaintiff asked for the appointment of a receiver on the ground that his application to the Collector to be declared as the senior proprietor was dismissed, and so there would be difficulty in collecting the rents and that he had already found such difficulty. He stated that some of the kudiwaramdars have each purchased small portions for the purpose of obstructing the melwaramdars in the matter of collection of rents, and rents were not paid for two years. In para. 6 of the plaint it is stated that as some of the tenants owning kudiwaram rights alone have purchased small portions of the melwaram pangus, they take advantage of their position and would not pay the rent properly and are creating disputes about the lands over which the melwaramdars have got both warams. The learned District Judge allowed the petition for the appointment of a receiver. In his order he says: I do not contemplate that a receiver should be asked to determine which lands are kudiwaram and which are iruvaram lands, which is part of the subject-matter of the suit. What I contemplate is that the receiver whose appointment I consider is necessary for the protection of the plaintiff's interest should be empowered to collect what represents the melwaram on all the lands in the village as if they were admittedly kudiwaram lands, that the melwaram so collected will be paid into Court and the parties heard with regard to their drawing shares of it if they can agree what shares they should draw pending suit. Their shares will then be adjusted at the final decision in the suit. If they cannot agree as to how the money should be shared during the hearing of the suit, the money may remain in Court or invested for their benefit.

(3.) I shall now deal seriatim with the objections raised to this order. It is said that the petition was put in two years after the institution of the suit. But it will be seen that the plaintiff had taken further steps, though unsuccessfully, to try and get the rents collected by getting himself recognized as the senior landholder. Then it is said that there is nothing to show that there was any difficulty in collecting the rents up to the time of the suit. That might be so; but I see no reason to doubt his statement that the tenants were putting off payment of rent either by alleging themselves to be melwaramdars also or that they have to pay it to somebody else.