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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Messrs. S. Ramachandra Ayyar and V. S. Ramakrishnan for Petr.
  • The Add. Govt. Pleader for the State.
  • Messrs. S. Mohan Kumaramangalam, S. Mohan and M. Krishna Bharati for Respts.
Judges
  • Ramaswami, J.
Acts
  • Section 3(4)(a) of the Madras Act XXV of 1955 in C.M.C. No. 43 of 1956,
  • Clause (a) or Clause (aa) of Sub-section (2)
  • provisions contained in Sub-section (3),
  • provisions of Madras Act XXV of 1955.
  • Sub-section (3)(b).
  • Section 3(2)(d)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Messrs. S. Ramachandra Ayyar and V. S. Ramakrishnan for Petr.
  • The Add. Govt. Pleader for the State.
  • Messrs. S. Mohan Kumaramangalam, S. Mohan and M. Krishna Bharati for Respts.
Judges
  • Ramaswami, J.
Acts
  • Section 3(4)(a) of the Madras Act XXV of 1955 in C.M.C. No. 43 of 1956,
  • Clause (a) or Clause (aa) of Sub-section (2)
  • provisions contained in Sub-section (3),
  • provisions of Madras Act XXV of 1955.
  • Sub-section (3)(b).
  • Section 3(2)(d)
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The dispute concerns lands said to belong to Rajalakshmi Ammal. The cultivating tenant of the lands was Muthuswami Gounder. Bangaruswami Chettiar (son of Rajalakshmi Ammal) filed an application under Section 3(4)(a) of Madras Act XXV of 1955 (C.M.C. No. 43 of 1956) before the Sub-Collector, Pollachi, seeking eviction of Muthuswami Gounder for alleged non-payment of arrears of rent. The Sub-Collector recorded evidence and dismissed that application, finding no arrears.

Subsequently Rajalakshmi Ammal filed O.S. No. 11 of 1957 in the Sub-Court, Coimbatore, claiming arrears of rent for the same lands and period; the proceedings before the Sub-Collector were not mentioned in that plaint. The Sub-Court appointed a Court Receiver (I.A. No. 25 of 1957), who took charge, engaged a Village Munsif, harvested standing crops, and (after publicity) held an auction on 17th April, 1957. The successful bidder (Narasimha Chetty, son-in-law of Rajalakshmi Ammal) was put in possession in anticipation of the Sub-Court's approval, and the Sub-Court confirmed the lease on 15th June, 1957.

Muthuswami Gounder filed C.M.C. No. 64 of 1957 before the Revenue Divisional Officer (RDO), Pollachi, claiming restoration of possession. The RDO again held that no arrears were due and ordered restoration of possession (subject to preservation of standing-crop items). Narasimha Chetty instituted the present Civil Revision Petition and sought stay of the RDO's order; interim stay was granted. The petitions are now disposed of in this opinion.

Legal Issues Presented

  1. What is the nature and scope of suits that may be filed in civil courts for recovery of arrears of rent in light of Madras Act XXV of 1955?
  2. Whether a Receiver can be appointed by the civil court in suits for recovery of arrears of rent, and what are the limits of the Receiver's powers in such suits?

Arguments of the Parties

Revision Petitioner / Advocate for the Revision Petitioner (Narasimha Chetty)

  • Argued that a decision by the Revenue Divisional Officer on whether arrears are due is only incidental and collateral and not a final determination; therefore, a landlord should be able to re-agitate the matter in civil court (res judicata contention).
  • Asked hypothetically what should happen if a cultivating tenant refuses to attorn to a Receiver — implying that the Receiver (or landlord) should be able to dispossess in such circumstances.

Respondent / Cultivating Tenant (Muthuswami Gounder) and findings of Revenue Authorities

  • The Sub-Collector and the RDO both found that Muthuswami Gounder was not in arrears of rent; the RDO held the tenant should be restored to possession and accused the respondents of collusion to oust the tenant from protection under Act XXV of 1955.
  • Muthuswami Gounder deposited Rs. 2,475 into Court as per the Sub-Collector's order.
  • The tenant denied voluntary surrender or attornment; the RDO found no voluntary surrender or acquiescence in dispossession.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Nedungadi Bank v. Official Assignee (1928) 56 M.L.J. 95 : I.L.R. 52 Mad. 938 : A.I.R. 1929 Mad. 184 Authority that a Receiver may be appointed even in a mere suit for money. Used to support the general proposition that a Receiver can be appointed in money suits.
Lahanu Bai v. Harakchand A.I.R. 1915 Nag. 98 Authority cited among cases where Receivers were appointed in suits for money. Relied on to show the established practice of appointing Receivers in monetary suits.
A.R.A.R.A.L. Chettiar Firm v. U Sin A.I.R. 1935 Rang. 398 Appointment of Receiver in case of suit on a promissory note; Receiver can be appointed in respect of properties to which defendant has a right, if just and convenient. Supported the proposition that appointment of a Receiver is not limited to property exclusively belonging to the defendant.
Ramaswami Naik v. Ramaswami Chetti (1907) 17 M.L.J. 201 : I.L.R. 30 Mad. 255 Receiver appointed where property was subject-matter of suit and retained even when defendant was only personally liable. Used to show a Receiver can be retained to realize decretal amounts though defendant later found personally liable only.
Hari Ram v. Firm Maddu Mal A.I.R. 1938 Lah. 12 Appointment of Receiver not limited to property over which plaintiff has a lien. Supported the broader scope for Receiver appointments beyond lien situations.
Mathusri v. Mathusri (1895) L.R. 23 I.A. 28 : I.L.R. 19 Mad. 120 (P.C.) Receivership is discretionary; discretion is sound and judicial, aimed at ends of justice where no adequate remedy exists. Applied as part of the foundational principle that appointment of Receiver rests in judicial discretion.
Sivagnanathammal v. Arunachalam (1911) 21 M.L.J. 821 Authority cited for the discretionary nature of appointing a Receiver. Referred to in support of principle that appointment must promote justice and protect rights.
Firm of Raghubir v. Naringan A.I.R. 1923 Lah. 48 Plaintiff must show prima facie a very excellent chance of succeeding before a Receiver is appointed. Used among authorities establishing the prima facie success requirement.
Siaram Das v. Mohabir (1899) I.L.R. 27 Cal. 279 Support for the requirement of prima facie probability of success. Applied to the same effect as other authorities requiring prima facie merit.
Muhammad Casim v. Nagarajan A.I.R. 1928 Mad. 813 Authority supporting prima facie requirement for appointing a Receiver. Referred to under the principle that plaintiff must show strong prima facie case.
Bunwarilal v. Molilat (1922) 68 I.C. 656 Another authority cited for the prima facie success requirement. Grouped with other precedents to illustrate the necessity of a strong prima facie case.
Manghammal v. Miakan Bai A.I.R. 1933 Sind 230 Receiver will not be appointed merely to avoid possible harm; plaintiff must show emergency or danger. Used to emphasize that an imminent danger/loss must be shown to justify appointment.
Bidaramji v. Keshoramji A.I.R. 1939 Oudh 61 Authority on need to show emergency/danger for Receivership. Reinforced the emergency requirement for receivership relief.
Sheoamber Ban v. Mohan Ban A.I.R. 1941 Oudh 328 Case supporting that mere absence of harm is not enough; urgency must be shown. Applied to underscore requirement of imminent danger or loss.
Nilamdar v. Mahal Behari A.I.R. 1927 Pat 220 Receiver should not be appointed where it would deprive defendant of de facto possession unless property exposed to danger or possession obtained by fraud/force. Used to support the proposition limiting Receiver power where it would oust a possessor in peaceful possession.
Alkama Bibi v. Syed Istak Hussain (1924) 29 C.W.N. 836 Authority on restraining deprivation of de facto possession by Receiver unless fraud/force/danger exists. Referred to under the principle that Receivership should not cause irreparable deprivation of possession.
Mathurai Debya v. Shibdeyal (1909) 14 C.W.N. 252 Case illustrating the limitation on appointing a Receiver that would deprive a defendant of possession. Applied as part of the authorities backing the same limitation.
Bhubaneswar Prasad v. Rajeswar Prasad A.I.R. 1948 Pat. 195 Authority cited for the same limitation preventing wrongful dispossession by Receiver. Used to show established caution against dispossessing a defendant by Receivership orders.
Kuppammal v. Vellingiri Gounder (1957) 1 M.L.J. 293 : I.L.R. (1957) Mad. 448 Voluntary surrender of possession disentitles a cultivating tenant from protection under the Act. Cited to illustrate that voluntary surrender or abandonment removes cultivating-tenant protection; the court found no such surrender on the facts.
Chinnayanandaswamigal v. Sinnangi Konar W.P. No. 699 of 1956 (decided by Rajagopala Ayyangar, J.) Authority relevant to the point that voluntary surrender disentitles a cultivating tenant to statutory protection. Referred to in support of the proposition about voluntary surrender and loss of protection; applied to affirm the RDO's factual finding of no voluntary surrender.

Court's Reasoning and Analysis

The court began by identifying the governing statute — Madras Act XXV of 1955 — and its key provisions: Section 3 (protections against eviction of cultivating tenants), Section 4 (right to restoration of possession subject to limitations), and Section 6 (bar of civil court jurisdiction except as specified in Section 3(3)).

The court framed two central questions: (1) the nature of suits for recovery of arrears of rent that may be maintained in civil courts in face of the statutory bar, and (2) whether civil courts can appoint Receivers in such suits and, if so, the limits of Receiver powers.

On the first question the court held:

  • Landlords may bring suits for arrears of rent in civil court subject to the statutory bar (Section 6) and certain limitations (for example, suits for arrears outside the period covered by the Act such as in registered leases up to six years are permissible).
  • If arrears fall within the scope of the Act and the tenant has been directed to deposit arrears under the Act but has not complied, the landlord's statutory remedy is eviction; however, the landlord may still sue for arrears and obtain a decree for recovery, to be executed by ordinary civil-process means (e.g., attachment of movables), with the caveat that the tenant otherwise eligible under the Act remains protected against eviction except by statutory process.
  • The court addressed the res judicata concern raised by the Revision Petitioner (that an RDO determination is merely incidental and does not preclude civil suit). Having regard to res judicata principles and the statutory hierarchy (revision to the High Court rather than appeal), the court rejected the contention that the RDO's determination on arrears was merely a collateral/insubstantial determination; the court indicated it would be a "mere quibble" to say res judicata requirements were not fulfilled where the grant or denial of cultivating-tenant status depends on the arrears determination.

On the second question regarding Receivership the court analyzed precedent and the established five principles governing appointment of Receivers:

  1. Receivership is a judicial discretion exercised to promote justice where no adequate alternative remedy exists.
  2. Plaintiff must show a strong prima facie case of success before a Receiver is appointed.
  3. There must be some emergency, danger or imminent loss warranting immediate action.
  4. A Receiver will not be appointed if that would have the effect of depriving a defendant of de facto possession, unless the property is exposed to danger or possession was taken by fraud or force.
  5. The applicant's conduct is scrutinized; relief will usually be denied if the applicant's conduct is blameworthy.

The court accepted that a Receiver can be appointed even in a money suit but emphasized the constraints above. Applying these principles to the facts, the court observed that the Sub-Court had in fact appointed a Receiver but that a subsequent order by Ganapatia Pillai, J., in A.A.O. No. 116 of 1957 had terminated that Receivership — indicating as a matter of fact that the Receivership had been treated as unjustified in that instance.

Critically, the court examined the scope of Receiver powers in relation to cultivating tenants. It held that while a Receiver steps into the landlord's shoes for management purposes (and could seek attornment), the Receiver is not empowered to dispossess a cultivating tenant in contravention of the protections afforded by Madras Act XXV of 1955. If a tenant denies the landlord's title and thereby refuses to attorn, the consequence is that the tenant would cease to be a cultivating tenant and so would lose statutory protection — but that outcome depends on the tenant's conduct (e.g., voluntary surrender).

Applying the facts, the court accepted the Revenue Divisional Officer's finding that there was no voluntary surrender or attornment by Muthuswami Gounder, and therefore the Receiver (and those acting through the Receiver) were not entitled to dispossess him. The court concluded that the dispossession carried out by the Receiver was unjustified and that restoration by the RDO was appropriate.

The court further addressed practical consequences: the RDO's order that two items (1 and 4 — about Ac. 4.75 cents) remain with the successful bidder until after harvest was left undisturbed; for the other items, because the Revision Petitioner had incurred cultivation expenses since dispossession, the court allowed handover of possession to be subject to an expeditious RDO enquiry into legitimate expenses and deposit of that amount by the Revision Petitioner as a condition precedent to restoring possession to the tenant. On deposit, the Revision Petitioner may withdraw the amount subject to any equity between Rajalakshmi Ammal and the Revision Petitioner and after notice and opportunity for objections before the Sub-Judge, Coimbatore.

Holding and Implications

Holding: The Civil Revision Petition and the application for stay are dismissed (the Revision Petition and Civil Miscellaneous Petition are disposed of accordingly).

Implications and direct effects on the parties:

  • The Receiver (and those acting under the Receiver) was not entitled to dispossess the cultivating tenant Muthuswami Gounder; he is entitled to restoration of possession as directed by the Revenue Divisional Officer, subject to the RDO's directions on items withheld for harvest.
  • Items 1 and 4 (Ac. 4.75 cents with standing crops) are to be restored only after harvest, and that portion of the RDO's order remains undisturbed.
  • For the remaining items, the Revision Petitioner may be required to deposit the amount fixed by the RDO as compensation for legitimate expenses incurred in cultivating those lands; possession will be handed over to the tenant upon deposit and the deposited amount may be withdrawn by the Revision Petitioner subject to any equity and after giving Rajalakshmi Ammal notice and an opportunity to object before the Sub-Judge, Coimbatore.
  • The Revision Petition and stay application are dismissed without costs.

The opinion does not purport to lay down any new legal doctrine beyond applying established principles on (a) the limited circumstances in which civil courts may entertain suits for arrears in the face of the Act, and (b) the established limitations on the appointment and powers of Receivers where cultivating tenants are concerned.

Show full summary ...

    Narasimha Chettiar v. Muthuswami Gounder, And Others.

    1. This Civil Revision Petition and the Application for stay arise from an order made by the Sub-Collector of Pollachi in C.M.C. No. 64 of 1957.

    2. The facts are. - The lands involved in these proceedings are said to belong to Rajalakshmi Ammal. The cultivating tenant of these lands was Muthuswami Gounder. Bangaruswami Chettiar, the son of Rajalakshmi Ammal, filed an application under Section 3(4)(a) of the Madras Act XXV of 1955 in C.M.C. No. 43 of 1956, before the Sub-Collector, Pollachi, for evicting Muthuswami Gounder on the ground of non-payment of arrears of rent. In that application Bangaruswami Chettiar testified that the land in question belonged to him by virtue of a partition. The learned Sub-Collector recorded evidence let in by both sides and came to the conclusion that there were no arrears of rent due from Muthuswami Gounder and dismissed the application.

    3. Subsequently Rajalakshmi Ammal who is said to have gone on a pilgrimage to Benares in the course of the above proceedings, filed O.S. No. 11 of 1957 in the Sub-Court, Coimbatore, claiming arrears of rent from the present tenant Muthuswami Gounder in respect of the same lands and for the same period. It is common ground that these proceedings before the Sub-Collector, Pollachi, were not referred to in the plaint in O.S. No. 11 of 1957. Rajalakshmi Ammal applied for the appointment of a Receiver in the Sub-Court, Coimbatore. A Court Receiver was appointed in I.A. No. 25 of 1957 on 7th February, 1957. The Receiver took charge of the properties on 8th February, 1957 and engaged the Village Munsif to look after the lands. The Receiver then authorised the Village Munsif to harvest the standing crops and reported the matter to Court. The Receiver then sought the directions of the Court to lease out the properties and obtained necessary orders. The Receiver then after due publicity held an auction on J7th April, 1957. The successful bidder was the son-in-law of this Rajalakshmi Ammal by name Narasimha Chetty. The Receiver put the successful bidder in possession of the properties after obtaining a lease-deed in anticipation of approval by the Sub-Court, Coimbatore. The Sub-Court confirmed the lease by its order, dated 15th June, 1957- Thereupon Muthuswami Gounder filed C.M.C. No. 64 of 1957 before the Revenue Divisional Officer, Pollachi, for restoration of possession on 1st May, J957 stating that he had been dispossessed by Narasimha Chetty on 17th April, 1957.

    4. The learned Revenue Divisional Officer once against went into the question of arrears of rent and held that Muthuswami Gounder was not in arrears, which was also the finding arrived at by him in C.M.C. No. 43 of 1956. He held that Muthuswami Gounder should be restored to possession immediately and there was no justification for ousting him out of the property. He also held that the respondents were colluding only with a view to oust him from the protection afforded by Act XXV of 1955. Muthuswami Gounder also deposited into Court a sum of Rs. 2,475 as Per order of the Sub-Collector, being the rent due for 1956-1957. On a petition made to the Sub-Collector he further ordered on 30th September, 1957 that except items 1 and 4, measuring about Ac. 4.75 cents in which there were standing crops, all the other items of property should be restored to Muthuswami Gounder immediately. Items 1 and 4 were to be restored after harvest. The amount in deposit was to be withdrawn after restoration of all the items. Narasimha Chetty has thereupon preferred this Civil Revision Petition and has also asked for stay of the operation of the order of the Sub-Collector in C.M.C. No. 64 of 1957. Interim stay has been granted and the opposite party has entered appearance and both the petitions are coming up for disposal.

    5. To decide the controversy we must first of all bear in mind the relevant provisions of Madras Act XXV of 1955. It applies to all cultivating tenants. Section 3 lays down that the landlords are not to evict cultivating tenants and runs as follows:

    (1) Subject to the next succeeding sub-sections, no cultivating tenant shall be evicted from his holding or any part thereof, during the continuance of this Act, by or at the instance of his landlord, whether in execution of a decree or order of a Court or otherwise.

    (2) Subject to the next succeeding sub-section, Sub-section (1) shall not apply to a cultivating tenant-

    4 (b) : On receipt of such application, the Revenue Divisional Officer shall, after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in a case falling under Clause (a) or Clause (aa) of Sub-section (2) in which the tenant had not availed of the provisions contained in Sub-section (3), the Revenue Divisional Officer may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under this Act inclusive of such costs as he may direct. If the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under Sub-section (3)(b). If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order for eviction.

    Section 4 deals with the right to restoration of possession, subject to the limitations and qualifications laid down therein. Section 6 deals with the bar of jurisdiction of civil Courts and states:

    No civil Court shall, except to the extent specified in Section 3(3), have jurisdiction in respect of any matter which the Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

    6. On this state of the statute, the two points for determination relevant for the purpose on hand are (i) what is the nature of the suit which can be filed in regard to the recovery of arrears of rent in the civil Court, and (ii) whether in such suits a Receiver can be appointed by the civil Court and what are the limits of the powers of the Receiver in such suits.

    7. Point 1. - Subject to the bar contained in Section 6, aggrieved landlords can file suits for arrears of rent, and subject, however, to the following limitations. A suit can be filed for arrears of rent not covered by the provisions of Madras Act XXV of 1955. Thus, for instance in the case of a registered lease, suits can be filed for recovery of arrears of rent for a maximum period of six years and which cannot be the case under the Act. In regard to the lease years covered by the Act and in regard to which deposit of arrears had been directed and had not been complied with, under the Act the remedy of the landlord is only to get the tenant evicted. But ¦'what about the arrears of rent itself not deposited? The landlord can file a suit I in the civil Court for recovery of such arrears and on obtaining a decree he can execute it in the manner provided by the Code of Civil Procedure. But incidentally the question is raised in this case whether it will be open to the landlord once the Revenue Divisional Officer has decided whether arrears of rent are due or not, to file a suit in the civil Court and re-agitate the same matter viz., that arrears of rent are due notwithstanding the decision of the Revenue Divisional Officer. This point is raised because the application of the principle of res judicata depends upon the question whether the matter substantially in issue having been heard and finally decided, can be re-agitated. The argument of the learned advocate for the Revision Petitioner is that the decision, whether the arrears are due or not, is only incidental and collateral and not a final determination by the Revenue Divisional Officer against whose order, it has to be remembered, no appeal is provided for but only a Revision to the High Court. But having regard to the principle of res judicata and the provisions of hierarchy of Tribunals for deciding this matter and a revision being provided to the High Court and the continuance of the relationship of landlord and tenant itself being made dependent upon the question whether there are arrears or not, it seems to me that it is a mere quibble to say that all the requirements of res judicata are not fulfilled. But I need not joint out that having obtained a decree in the civil Court, subject to the limitations set out above, and the cultivating Tenant, is otherwise eligible under the Act to continue as a cultivating tenant, the only mode of execution against him will be not to evict him but only to attach his movables, etc, subject of course to the provisions of the Code of Civil Procedure in that behalf, to recover the arrears.

    8. Bearing these principles in mind if we examine the facts of this case it was certainly open to Rajalakshmi Ammal to file a suit in the civil Court for recovery of arrears of rent subject to the limitations set out above.

    9. Point 2. - The next question which arises is whether a Receiver can be appointed by the civil Court in a suit for recovery of arrears of rent. It is now well-settled law that even in a money suit a Receiver can be appointed; see Chitaley and Annaji Rao's Civil Procedure Code, 5th Edition, Vol. 3, page 3221. A Receiver may be appointed in a mere suit for money, citing Nedungadi Bank v. Official Assignee (1928) 56 M.L.J. 95 : I.L.R. 52 Mad. 938 : A.I.R. 1929 Mad. 184; Lahanu Bai v. Harakchand A.I.R. 1915 Nag. 98, and A.R.A.R.A.L. Chettiar Firm v. U Sin A.I.R. 1935 Rang. 398, wherein the case of a suit on a promissory note it was held that a Receiver can be appointed even in respect of properties to which the defendant has a right, provided it is just and convenient. In Ramaswami Naik v. Ramaswami Chetti (1907) 17 M.L.J. 201 : I.L.R. 30 Mad. 255, a Receiver was appointed on the ground that the property was the subject-matter of suit and it was subsequently found out that the defendant was only personally liable and still it was held that a Receiver could well be retained for realizing the decretal amount. In Hari Ram v. Firm Maddu Mal A.I.R. 1938 Lah. 12, it was held that the appointment of a Receiver is not limited to property over which the plaintiff has a lien.

    10. This appointment of Receiver can be made subject to the five well known principles:

    (1) The appointment of a Receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or absolute; it is a sound and judicial discretion, taking into account all the circumstances of the case, exercised for the purpose of promoting the ends of justice and protecting the rights of all parties interested in the controversy and in the subject-matter and based upon the fact that there is no other adequate remedy or means of accomplishing the desired object of the judicial proceeding. Mathusri v. Mathusri (1895) L.R. 23 I.A. 28 : I.L.R. 19 Mad. 120 (P.C.), Sivagnanathammal v. Arunachalam (1911) 21 M.L.J. 821.

    (2) The Court should not appoint a Receiver except upon proof by the1 plaintiff that prima facie he has very excellent chance of succeeding in the suit. Firm of Raghubir v. Naringan A.I.R. 1923 Lah. 48, Siaram Das v. Mohabir (1899) I.L.R. 27 Cal. 279, Muhammad Casim v. Nagarajan A.I.R. 1928 Mad. 813, Bunwarilal v. Molilat (1922) 68 I.C. 656.

    (3). Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he is reasonably clear and free from doubt. It has been truly said that a Court will never appoint a Receiver merely on the ground that it will not do harm; Manghammal v. Miakan Bai A.I.R. 1933 Sind 230, Bidaramji v. Keshoramji A.I.R. 1939 Oudh 61, Sheoamber Ban v. Mohan Ban A.I.R. 1941 Oudh 328.

    (4) An order appointing a Receiver will not be made where it has the effect of depriving a defendant of a de facto possession, since that might cause irreparable wrong. It is only if the property is exposed to danger and loss and the person in possession has obtained it through fraud or force, the Court will interpose by Receiver for the security of the property Nilamdar v. Mahal Behari A.I.R. 1927 Pat 220, Alkama Bibi v. Syed Istak Hussain (1924) 29 C.W.N. 836, Mathurai Debya v. Shibdeyal (1909) 14 C.W.N. 252, Bhubaneswar Prasad v. Rajeswar Prasad A.I.R. 1948 Pat. 195.

    (5) The Court on the application for a Receiver looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.

    11. In this case though on principle it can be held that a Receiver can be appointed even in money suit, as a matter of fact such appointment has been held unjustified by Ganapatia Pillai, J., in A.A.O. No. 116 of 1957 and he has terminated that Receivership.

    12. The final point for consideration is, in the case of a Receiver appointed in regard to a matter of this nature what is the limit of the Receiver's powers? A Receiver can exercise all the powers except that of dispossessing the cultivating tenant. It was open to him for instance in the management of the estate for which he is appointed Receiver by Court on behalf of both parties and which property he holds in custodia legis, to get that cultivating tenant attorn to him inasmuch as he has stepped into the shoes of the landlord for the time-being. But he cannot dispossess him in contravention of the provisions of Madras Act (XXV of 1955) and if he has to evict that cultivating tenant in pursuance of his management of the estate, he must do so only under the provisions of that Act. But the learned advocate for the Revision Petitioner asks what is to happen if the cultivating tenant refuses to attorn to the Receiver, denying the title of the landlord? The answer is very simple. In such a case the cultivating tenant would cease to be a cultivating tenant and cannot invoke the protection of the Revenue Divisional Officer. The basis of cultivating tenancy is co-extensive with the tenant recognising the title of the landlord. In this case an endeavour was made to show that the tenant refused to attorn and must be deemed to have denied the title of the landlord and so he was rightly thrown out by the Receiver. But the facts show the contrary. In fact Explanation I to Section 3(2)(d) says that even if the tenant did so under a bona fide mistake of fact, he would be protected from his folly. Then it is argued that if the tenant walks out from the holding, what is to happen? The answer is equally simple. If the tenant voluntarily surrenders possession, effaces himself or fades out from the picture he would cease to be a cultivating tenant liable to be protected under Act XXV of 1955. That is why an attempt was made in this case once again to show that the tenant abandoned the Shalai and walked out of the holding and acquiesced in the action by the Receiver and the coming in of this Revision Petitioner in his place. If that were so, it would have been a voluntary surrender and such a surrender would disentitle the cultivating tenant from the protection of the Act see Kuppammal v. Vellingiri Gounder (1957) 1 M.L.J. 293 : I.L.R. (1957) Mad. 448, and Chinnayanandaswamigal v. Sinnangi Konar W.P. No. 699 of 1956 (decided by Rajagopala Ayyangar, J.). The learned Revenue Divisional Officer has found that there was no such voluntary surrender and I agree with him on the facts of this case.

    13. The net result of this analysis is that the Receiver was not entitled to dispossess the cultivating tenant Muthuswami Gounder and when he had done so, the cultivating tenant is entitled to be restored to possession by the Revenue Divisional Officer, Pollachi. The Civil Revision Petition and the stay application have got to be dismissed and are hereby dismissed but in the circumstances without costs.

    14. I have already alluded to the order of the Revenue Divisional Officer, dated 30th September, 1957 and which has been summarised above regarding the restoration of Ac. 4-75 cents, items 1 and 4, after harvest and the immediate restoration of the other items. The order made regarding items 1 and 4 need not be disturbed. In regard to the rest of the items, it is now pointed out by the Revision Petitioner that subsequently they have been brought under cultivation and a large amount has been spent in that behalf. The other side agrees that possession of the other items may be handed over subject to an enquiry being held by the Revenue Divisional Officer regarding the amount of compensation to which the Revision Petitioner would be entitled for cultivating the lands and that amount being deposited as a condition precedent for handing over possession to Muthuswami Gounder by the Revision Petitioner. The Revenue Divisional Officer, Pollachi, is clothed with powers to make an expeditious enquiry into the legitimate expenses incurred by the Revision Petitioner for bringing the lands other than items 1 and 4 under cultivation or any portion thereof and fix the same and then direct its deposit as a condition precedent for possession of the said lands being handed over to Muthuswami Gounder. On the said amount being deposited the Revision Petitioner will be at liberty to withdraw that amount.

    15. Civil Revision Petition and Civil Miscellaneous Petition disposed of accordingly.

    16. The amount deposited by the Revision Petitioner as advance rent at the time of the auction will be allowed to be taken by him subject to the equity if any Between herself and the landlord. The amount will be allowed to be withdrawn after notice to Rajalakshmi Animal and she being given an opportunity to prefer objections if any before the learned Sub-Judge, Coimbatore.

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    Narasimha Chettiar v. Muthuswami Gounder, And Others.
    (Dec 4, 1957)