Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Revn. Petns. Nos. 1648 to 1653 of 1929

Judges

Ramesam, J.

See more information ...

Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitions under review challenge an order of the Subordinate Judge of Ellore on applications made under Order 21, Rules 98 and 100, Schedule I of the Code of Civil Procedure (E.A. Nos. 199 and 201–206 in O.S. No. 98 of 1926). Portions of some E.A. applications were dismissed and others allowed; the decree-holder in the main suit filed these revision petitions.

The main suit (filed in 1926) concerned two half-brothers: the younger (plaintiff) alleged that, under a 1924 division by their father, he was entitled to two-thirds and the elder brother to one-third, and the plaintiff had been enjoying his share through his father while a minor. After the father's death the elder brother refused to recognize that allocation, and the plaintiff sued (a suit for possession of specified items alleged to fall within the plaintiff's share). The trial court decreed for the plaintiff; the defendant appealed to the High Court (appeal pending).

Execution of the decree occurred in 1928. An amin (process-server) and the decree-holder attempted delivery of possession on 23–24 November 1927 and reported that they were obstructed. The amin applied to the police (Ex. A) seeking police assistance; the Subordinate Judge had previously ordered police help on 18 November. Police attended and the amin reported delivery of possession on 24 November; the Court recorded delivery without objection.

Subsequently, on or about 1–2 December 1927, some claimants attempted to cut crops on the land and were allegedly prevented, and criminal charges were later framed against some of them. Petitions under Order 21, Section 100 of the CPC were filed on 21 December 1927, after the December incident, claiming dispossession and alleging occupancy tenancy by the petitioners.

Legal Issues Presented

Whether the Subordinate Judge committed an irregularity by finding a different case than that pleaded by the petitioners (i.e., whether the judge improperly made findings not framed by the pleadings and evidence).
Whether persons described as “the defendant and men belonging to the defendant” are bound by the decree, unless shown to be occupancy tenants, and the legal effect of such status on execution objections under Order 21, Rules 98 and 100.
Whether the ejectment (dispossession) occurred in execution (24 November) or later (1–2 December), and the legal consequences of that timing for the applicability of Order 21, Rules 98 and 100.
Whether the Subordinate Judge had jurisdiction to pass the orders made under the factual matrix as found by that Court and, relatedly, whether the revisional court should interfere on grounds of irregularity and insufficiency of evidence.

Arguments of the Parties

Revision Petitioner’s Arguments (as presented by Mr. Varadachariar)

Because this is a revision, he did not attack lower-court findings on evidence generally, but argued the Subordinate Judge found an entirely different case from that pleaded by the claimants (irregularity warranting interference in revision).
The claimants pleaded occupancy tenancy because the village was an estate, but there was no evidence to support occupancy tenancy; therefore the Subordinate Judge could not properly find for occupancy tenancy.
On the evidence the dispossession could only be on 1–2 December 1927 (not on 24 November), and if dispossession occurred after delivery (i.e., later than execution), Order 21, Rules 98 and 100 would not apply; the Subordinate Judge thus lacked jurisdiction to pass orders under O.21 R.100 and the petitioners had their ordinary legal remedies for wrongful dispossession.
Alternatively, if the Subordinate Judge’s finding is read to mean dispossession occurred on 24 November (contrary to the petitioners’ pleaded case), the amin’s report (Ex. A) shows the obstruction on 24 November was by the defendant and his men, not by independent persons asserting rights inconsistent with the plaintiff’s title; such men (unless occupancy tenants) are bound by the decree, so O.21 R.98 could not help them.

Respondent/Claimants' Arguments (as presented by the respondent's advocate)

Technical objections should not defeat substantial justice; though claimants’ petitions were inartfully drafted, their substance was that they were tenants of the land and should not be ejected amidst quarrels between two brothers.
Even if occupancy tenancy was not strictly found, claimants could at least be treated as year-to-year tenants and deserve protection from summary dispossession arising out of the family quarrel.
The respondents' advocate later conceded the possibility that no rent was paid to any person and that tenants might have occupied the land as tenants of whoever ultimately proved to be the lawful owner; he advanced this as a possible explanation for why tenants might be disinterested in the quarrel between the brothers.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jafirji Ibrahimji v. Miyandi Mangal, A.I.R. 1922 Bom. 278	That persons who are not occupancy tenants are bound by a decree affecting possession (i.e., decree binds such persons).	The Court relied on this authority to support the proposition that the defendant's "men" (if not occupancy tenants) would be bound by the decree and could not successfully contend rights inconsistent with the plaintiff's title.
Jairam Jadouji v. Nouroji Jamsedji, A.I.R. 1922 Bom. 449	Same line of authority as Jafirji (tenants not holding under occupancy tenancy are bound by the decree).	The Court cited this case alongside Jafirji to reinforce that such persons (unless occupancy tenants) were bound by the decree and could not rely on O.21 R.98 to resist execution.
Erra v. Gubbay, [1920] 47 Cal. 907	Decision in the same area of law, but the Court considered it distinguishable from the present facts.	The Court stated Erra v. Gubbay was distinguishable and preferred the Bom. decisions (Jafirji and Jairam) to Erra for its conclusions on persons bound by decrees.
Kocherlakota Venkata Krishna Row v. Vadrevu Venkatappa, [1904] 27 Mad. 262 (at p. 269)	Cited in relation to the proposition that absent tenants at the time of execution will not be treated as ejected in execution.	The Court invoked this precedent to support the argument that if petitioners were absent during the execution (24 November) and dispossessed only on 2 December, they were not ejected in execution and thus Rules 98 and 100 of O.21 would not apply.

Court's Reasoning and Analysis

The Court proceeded through a careful factual and procedural analysis, applying the cited authorities to the specific chronology and evidence in the record:

The amin’s application to the police (Ex. A) and the Subordinate Judge’s prior order (18 November) authorizing police help made the amin's acts and the police assistance on 24 November unexceptional; the amin reported delivery of possession on 24 November and the lower Court recorded delivery without objection.
The description in Ex. A of the obstructors as “the defendant and men belonging to the defendant” led the Court to infer (from the language used in the record) that these men were either the defendant’s farm servants or tenants of the defendant. The Court emphasized that, unless such persons are occupancy tenants, they are bound by the decree — a point supported by the Bom. authorities cited (Jafirji and Jairam), which the Court preferred to Erra v. Gubbay (which was considered distinguishable).
The temporal facts were pivotal. The petitions were filed on 21 December 1927, after the events of 1–2 December. The petitioners’ pleadings and the evidence (notably P.W.1 and another petitioner-witness) indicated ejectment on 1–2 December rather than on 24 November. The Court concluded that, for those petitioners who were ejected on 2 December, the dispossession occurred after execution had been completed (i.e., not in execution).
On the evidential record, there was scant or no evidence about (a) the village being an estate, or (b) occupancy tenancy, or (c) the tenants’ relationship to the plaintiff or others — except a solitary statement by P.W.1 that he paid cist to Subbarayudu and after his death to Subbarayudu’s widow. The Subordinate Judge’s finding was vague and did not explicitly find occupancy tenancy or tenancy as tenants of the plaintiff.
The Court identified material irregularities in the inquiry before the Subordinate Judge: (i) the judge apparently found a different case from that pleaded by the petitioners, and (ii) the decree-holder was compelled to begin his case (i.e., the order of adducing evidence was irregular). These procedural irregularities were considered serious and justified intervention in revision.
The Court evaluated competing possibilities: if the lower Court meant to find ejectment on 24 November, Ex. A showed obstruction by the defendant and his men (who, unless occupancy tenants, would be bound by the decree). If the actual dispossession occurred on 2 December, the ejectment was not by execution and Order 21, Rules 98 and 100 would not apply — thereby undermining the Subordinate Judge’s basis for relief.
The Court also considered whether, on closer analysis, the petitioners might be bona fide tenants in possession (willing to be tenants of whoever proved to be lawful owner and indifferent to the brothers' quarrel). The Court found that this aspect—which would merit protection—was not sufficiently raised or supported in the lower Court and did not appear in the Subordinate Judge’s specific findings.
On balance, taking into account the irregularities, timing of alleged dispossessions, the nature of the obstructors on 24 November, and the sparsity and vagueness of evidence asserting tenancy rights, the Court concluded that interference in revision was warranted and that the Subordinate Judge’s orders should be set aside.
Although P.W.1’s testimony alone created some hesitation (he alone suggested payment of cist to the widow), all petitioners had presented a single, undifferentiated case and did not present distinct cases; therefore even P.W.1’s claim could not sustain the Subordinate Judge’s order in the overall context.

Holding and Implications

Holding: The Court set aside the orders of the Subordinate Judge.

Consequences and immediate implications:

The orders made by the Subordinate Judge on the applications under Order 21, R. 100 (and related proceedings) are set aside.
Costs were awarded to the petitioners in this revisional court and in the lower Court in one case; no costs were awarded in the other cases. (As recorded: "The petitioners will have costs here and in the lower Court in one case. No costs in the others.")
No broader precedent or sweeping new legal principle was announced beyond the application of established authorities and the Court’s corrective action on the procedural irregularities; the decision’s effect is confined to setting aside the lower-court orders and the specific allocation of costs described above.

P.R.S/R.M

Order recorded: "Orders set aside."

Show full summary ...

Tallapragada Appa Rao v. Kasangi Venkappa And Others

1. These petitions are filed against the order of the Subordinate-Judge of Ellore on applications filed, under O. 21, R. 100, Sch. 1 of the CPC. (E.A Nos. 199 and 201 to 206) in O.S No. 98 of 1926. E.A No. 206 and a portion of E.A No. 205 were dismissed and the rest of the petitions were allowed. The opposite party namely the-decree-holder in the main suit files these revision petitions.

2. The facts out of which these petitions-arise may now be stated. The main suit is a dispute between two persons who are half-brothers. The plaintiff is the younger brother and the defendant is the elder.

3. The plaintiff's case was that during the lifetime of the father in 1924 there was a division of the father's property by the father himself according to which two thirds share was allotted to the plaintiff and one third to the defendant, and each was enjoying his separate share, the plaintiff's enjoyment being through his father as he was a minor.

4. After the father's death the elder brother refused to recognize the younger brother's right to more than half a share and contended that the division was in two shares, with the result that a suit had to be filed on behalf of the plaintiff by his maternal uncle in 1926. The suit was tried and the plaintiff's case was found to be true and it was decreed. I am informed that the defendant has appealed to the High Court and that the appeal is pending. It appears that in the main suit itself the defendant made no suggestion that there were any tenants on the suit land and that they should be made parties in the suit. Incidentally I may observe that the suit is not one for partition but for possession of separate and definite items on the ground that they fell to the plaintiff's share and were trespassed upon by the defendant.

5. In 1928 execution was taken out of the decree and an amin was deputed to deliver possession to the plaintiff's next friend. He and the amin went to the lands on 23rd November. The decree-holder and the amin were resisted.

6. Ex. A is the application of the amin to the Station House Officer of Pentapadu for police help. This is a very important document in the case. So I will set forth a portion of this application.

“Accordingly, when I want to deliver the properties, defendant and men belonging to the defendant obstructed me with a bid intention of patting the minor's guardian out of possession of the properties and stealing away the crops raised on the scheduled lands. If I deliver them against, the defendant's will they are ready to commit danger to lives with brute force. The Court has passed orders in E.A No. 1484 of 1927 to remove such obstruction and deliver, if the defendant should obstruct unlawfully in this way. The above warrants have to be executed in accordance with the above orders and without breach of peace. So I pray that your honour may kindly be pleased to render such help so that the warrants may be executed.”

7. The Subordinate Judge had ‘previously ordered on 18th November that police help may be taken. This is the order referred to in Ex. A. After such order, there is nothing high handed in the acts of the amin and the decree-holder. Thereupon the Station House Officer deputed a head constable and two police constables to help the amin to preserve peace.

8. At this stage it is important to observe that the obstructors were described in Ex. A as “the defendant and men belonging to the defendant.” Who are these men belonging to the defendant?

9. They must be either farm servants of the defendant or tenants of the defendant. In either case unless they are occupancy tenants they are bound by the decree: see Jafirji Ibrahimji v. Miyandi Mangal . A.I.R 1922 Bom. 278, and Jairam Jadouji v. Nouroji Jamsedji . A.I.R 1922 Bom. 449, which I prefer to Erra v. Gubbay . [1920] 47 Cal. 907 which is also distinguishable. Otherwise they would not be described as men belonging to the defendant. On 24th November the amin effected delivery of possession and reported delivery to the Court. The Court recorded delivery without objection.

10. Some time later about 1st December some or all of the present claimants attempted to out the crops on the land and one of the head constables gave a notice to one of these claimants (one of the two claimants in E. A No. 203) not to cut the crops. This is Ex. C dated 1st December 1927. The head constable also sent a report to the Sub-Inspector of Police which is Ex. D. The Sub-Inspector was requested to come and prevent a breach of the peace. Afterwards these claimants or some of them were charged in a criminal case No. 90 of 1927. The present petitions were filed under O. 21, S. 100, of the Code on 21st December 1927, i.e after and not before the incident of 2nd December 1927. Para. 4 begins by saying that on 1st December 1927 and 2nd December 1927 the decree-holder and his brother-in law came to their fields and attempted to forcibly out the crops raised by the petitioners. Para. 5 says:

“With the assistance of the police respondent 1 threatened the petitioners and has dispossessed the petitioners and cut and carried away the crops worth Rs. 240.”

11. It is clear from paras. 3 and 4 that the petitioners must have been dispossessed only on 1st December 1927 or 2nd December 1927, not earlier. Then para. 7 however says:

“Respondent 1 alleged that he obtained delivery of the property on 21th November 1927 and 25th November 1927 through the Court. The petitioners submit that no such actual delivery was in fact effected. I it was reported to the Court that any such delivery took place, it must have been merely a fake for nobody came near our lands.”

12. Paragraph 8 says that the petitioners are occupancy tenants in possession of the land. Respondent 2 in these petitions who was the judgment-debtor admits the plaintiff's petition but denies that the land is an estate or that the petitioners had occupancy rights. The decree-holder is respondent 1. He denied that the petitioners were persons who had any possession of the suit lands. He contended also that the petitions are not maintainable and that he got possession on the date of delivery. The Subordinate Judge's statement that the plea as to maintainability was not taken in the counter-petition is not correct. For some reason which is not clear from the judgment of the Subordinate Judge and of which the petitioners before me complain as a serious irregularity, the decree-holder was asked to begin the case and after he finished examining his witnesses the claimants' witnesses were examined.

13. Witness 1 is the claimant in E.A No. 202. In chief examination he says that he was ejected from the land with the help of the police. No date is mentioned. Taken along with the petition the date of this ejectment must be only 2nd December 1927. He then gives details of the holdings of the other petitioners. In cross examination he says:

“I paid cist at Rs. 6 per year for that land to Subbarayudu and after his death to his widow I was not present when the lands of the other claimants were delivered, to the plaintiff with the help of the police.”

14. Witness 2 is one of the joint petitioners in E.A No. 203. He also says that he was ejected without giving any date.

15. In cross-examination he says: “The police came to my land and ejected me from it.” He does not say that he paid any rent to Subbarayudu's widow the plaintiff's mother. No other witness is examined.

16. It is clear from the evidence of these two witnesses that they were ejected on 2nd December and that they know nothing about the ejectment of the other claimants in the case, as to which therefore there is no evidence on the record on which any Court could have passed orders, these witnesses themselves knowing nothing about it.

17. Mr. Varadachariar who argued the revision petitions before me put the matter thus. This being a matter in revision, he said he could not attack the findings of the lower Court on the evidence. But he argued that the Subordinate Judge found an entirely different case from that set up by the claimants. The claimants claimed occupancy tenancy on the ground that the village is an estate. The Subordinate Judge did not find occupancy tenancy. If he could have found it, he would have found it and should have found it. But obviously it was impossible for him to do so.

18. There being no evidence in the evidence of the claimants either about the village being an estate or about any kind of occupancy tenancy, the Subordinate Judge could not find in favour of occupancy tenancy. On that finding the learned advocate argues that the petitions ought to have been rejected and the Subordinate Judge ought not to have found a different case for the petitioners from that set up by them in their petitions. This is an irregularity which justifies interference in revision. But even apart from that, even on the findings the findings being merely that the petitioners were in possession of the suit lands before the death of the father and that they were wrongfully ejected in execution, without anything more, the lower Court's order cannot be sustained he argues that either the ejectment was on 24th November or it was on 2nd December. If the petitioners were absent from the scene of execution and therefore they were not ejected on 24th November (vide Kocherlakota Venkata Krishna Row v. Vadrevu Venkatappa . [1904] 27 Mad. 262. at p. 269, but only on 2nd December—this is the case of the petitioners—then the petitioners were not ejected in execution. The dispossession of the tenants was much later than the delivery and O. 21, R. 98 and 100, do not apply at all. The Subordinate Judge has no jurisdiction to pass an order under O. 21, R. 100. The petitioners have their general remedy in law if they were wrongfully dispossessed.

19. But taking the other alternative that the Subordinate Judge meant to say that they were dispossessed on 24th November, though it is opposed to the plaintiff's case, and that the finding is binding on the High Court, the amin's report, Ex. A shows that the amin and the decree-holder were obstructed on the 24th by defendant and his men. No right of theirs consistent with the plaintiff's title was ever set up on that date; and only to such persons, i.e, persons who have rights of their own and who are not bound by the decree, does O. 21, R. 98, apply. It cannot help tenants of the judgment-debtor who are not occupancy tenants. I think these contentions are well founded. But the learned advocate for the respondent argues that Mr. Varadachariar's contentions are technical, that in revision technicalities ought not to be allowed to prevail and defeat substantial justice, that though the petitions of the claimants in the lower Court were inartistically drafted the substance is that they were tenants of the land and, even though any occupancy tenancy is not found, they will at least be tenants from year to year and that they ought not to be ejected because the two brothers were quarrelling. I entirely recognize the fairness of this contention provided it applies to the facts of this case. Seeing there are irregularities justifying interference provided the interest of justice require it, I am willing to look into the matter a little more deeply. I asked the learned advocate whose tenants the petitioners were, assuming that they were really tenants. The learned advocate answered that they were the plaintiff's tenants and in support of this suggestion he referred to the statement in P.W 1's evidence that he was paying cist at Rs. 6 per year to Subbarayudu's widow after his death. There is no such statement to help all the other petitioners.

20. Of course the learned advocate suggested that all of them were plaintiff's tenants paying cist after, the father's death. So that, it comes to this: that the plaintiff through his next friend filed a suit in 1926 to recover lands which were really in his own possession through his tenants but to eject his brother alleging that the brother was in possession, the brother never suggesting in his written statement that the lands were in the possession of the tenants and not in his possession. This farce of an original suit and an appeal is being parried out merely for the purpose of getting rid of the occupancy right set up by these tenants, and the learned advocate said that the plaintiff may have given counter-evidence to rebut the statement of P.W 1, that rent was being paid to the mother. At this stage it was pointed out that the decree-holder was compelled to adduce his evidence first and then the claimants followed.

21. The learned advocate would not admit the fact until there is something on the record to support it. The affidavit filed by the petitioners in connexion with the stay petition, the allegations which were repeated in the revision petition and which remain uncontradicted to this day, was then relied on by the petitioner's advocate. The respondent's advocate then found the helplessness of his position. He suggested that it is possible that no rent was paid to any person and that the tenants were in possession of the lands only as tenants of whoever may ultimately turn out to be the lawful owner, and they were not interested in the quarrels between the two brothers. The situation is therefore this: this aspect of the case which turned up at the end is only an aspect which turns up on an exhaustive analysis of the case before me and the situation was arrived at only after being driven from position to position. This aspects was never suggested before the lower Court. Even the Subordinate Judge in his finding beyond saying that the petitioners were in possession of these items, since the death of the father, does not say anything more. He does not say that they were in possession as tenants from year to year. He does not say that they were in possession merely as tenants of some kind. He does not say that their possession was as tenants of the plaintiff.

22. Obviously he gave no weight to the statement in the deposition of the claimants' first witness that rent was paid to the widow of Subbarayudu. He does not say that the petitioners are in possession as tenants of whoever may turn out to be the lawful owners bona fide and that they are disinterested in the quarrels between the brothers. On the finding of the Subordinate Judge and the other irregularities in the case, it is clear to me that this is not a case of persons bona fide in possession seeking protection from ejectment on account of quarrels between two other persons. If I am satisfied in this case that the claimants are tenants in possession of the lands, willing to be tenants of whoever may turn out to be the lawful owner, indifferent to the quarrels between the landholders taking no sides but anxious to protect their own tenancy and complaining that in the guise of quarrels between two brothers they ought not to be wrongfully ejected, I would not interfere in this revision petition.

23. But if on the other hand I am satisfied that, taking advantage of their not being parties, the defendant's men are now set up some time after the execution proceedings as an afterthought to put forward a case of tenancy, to put a further spoke in the wheel, and to prevent the decree-holder from reaping the benefit of his decree, I ought to interfere and set aside the lower Court's orders.

24. Having regard to the material irregularities in the enquiry before it, namely (1) a different case being made out and (2) the decree-holder being compelled to start his case, and having regard to the fact that the only obstruction-made on the 24th was by the defendant and his men, there being not even the faintest suggestion of some persons claiming to be tenants of the plaintiff, (and seeing that, even they are tenants, they are bound by the decree not being found to be, occupancy tenants) having regard to the petitioners case itself that they were ejected on 2nd December, i.e, otherwise than in execution which was finished on 24th November, having regard to the stage in filing the petitions and having regard to the findings of the Subordinate Judge itself, which is very vague and which I am not bound to read as finding that specific case in which only the claimants Can succeed. I am satisfied that this order of the Subordinate Judge ought to be set aside. Even if one is to suppose, as is now suggested before me, that some claimants are plaintiff's tenants or tenants of the lawful owner, it is only one man, P.W 1, that can be so protected. The others have given he evidence as to their ejectment or tenancy; Seeing that all the claimants have made one case, and have not suggested even dissimilar cases, I think P.W 1 also ought to fail. His is the only case about which I felt some-hesitation. The result is I set aside the orders of the Subordinate Judge. The petitioners will have costs here and in the lower Court in one case. No costs in the others.

P.R.S/R.M

25. Orders set aside.

Tallapragada Appa Rao v. Kasangi Venkappa And Others

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Revision Petitioner’s Arguments (as presented by Mr. Varadachariar)

Respondent/Claimants' Arguments (as presented by the respondent's advocate)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Tallapragada Appa Rao v. Kasangi Venkappa And Others

Comments