Rao Bahadur V. Ranganatham Chettiar And Others v. Mariappa Mudali And Others

JUDGMENT

M. Patanjali Sastri, J.

1. This is an appeal brought by the plaintiffs who are the present trustees of Sri Parthasarathiswami Temple, Triplicane, against a decree of the City Civil Court dismissing their suit to evict the respondents from certain lands belonging to the temple after terminating their tenancy. Various defences were raised by the respondents which were all decided against them by the lower Court except the plea of multifariousness which was upheld. It would appear that the learned Judge gave the appellants an opportunity to amend the plaint (if so advised) so as to Cure the defect in the frame of the suit) but as the appellants failed to do so, he dismissed the suit.

2. The facts may be briefly stated. In 1882, the then trustees demised the suit land measuring 8 cawnies 9 grounds and 2160 square feet in four equal parcels to four brothers who were the ancestors of the respondents, under four separate muchilikas on the same terms. Each lease comprised 2 grounds and 90 square feet of house site and 2 cawnies and 1050 square feet of cultivable land and each lessee agreed to pay a rent of Rs. 2-8-0 for the house site, Rs. 7-8-3 for the cultivable land and Rs. 1-12-0 for the usufruct of the trees or a total rent of Rs. 11-12-3 and to surrender possession at the end of the term which was one year, fasli 1292. The lessees, however, continued in possession- of the lands respectively let to them even after the expiry of the fasli as tenants from year to year paying the same rent, and after their death, their descendants, the respondents were also allowed to hold the lands on the same terms. Notices to quit, dated 21st December, 1935, were issued to the respondents demanding vacant possession of the lands in their respective possession at the expiry of fasli 1345 that is, on the 30th June, 1936 and the respondents not having surrendered the lands, the suit was filed in September; 1936 for ejecting them from possession.

3. The defendants put in a joint written statement alleging that they and their ancestors had been in possession of the lands for over a hundred and fifty years and that they were entitled to permanent rights of occupancy. They also alleged that they were in separate possession and enjoyment of different portions of the lands without any community of interest, paying the annual rent to the temple separately, and that the suit was bad for misjoinder of parties and causes of action. They further pleaded that they were entitled to the benefits of the Madras City Tenants' Protection, Act as the lands are in the Mambalam Town Extension area and that the notices to quit alleged to have been given by the appellants were bad in law. They also claimed compensation for improvements alleged to have been effected by them in case they were to be evicted.

4. Mr. Panchapagesa Sastri, who appeared for the appellants attacked the finding of the Court below that the suit was bad for misjoinder of parties and causes of action. He explained that the appellants had no means of ascertaining which defendant or defendants were in possession of the lands respectively leased to the four brothers in 1882 as the defendants have been dividing the lands among themselves and changing the allotments from time to time according to their convenience and that the appellants were therefore unable to bring separate suits for recovery of different portions of the land. He urged that the frame of the suit was warranted by the provisions of Order 1, Rule 3, Civil Procedure Code as the appellants' right to relief arose out of the same act or transaction, viz., the unlawful detention by the respondents of the suit property belonging to the temple after the tenancies were duly terminated, and common questions of law and fact would arise if separate suits were brought against them Various decisions--some of them not easy to reconcile--were cited on either side but it seems to me that no useful purpose would be served by a detailed examination of these decisions as the question whether the joinder is proper or not has to be decided with reference to the facts of this case. It is now well settled that Order 1, Rule 3, applies not only to joinder of parties but also to joinder of causes of action, [see Govindaraja Mudaliar v. Alagappa Thambiran MANU/TN/0160/1926 : AIR1926Mad911 , and it is also plain that both the conditions referred to in that provision must be fulfilled in order to justify the joinder provided for therein. There is no doubt here as to the existence of common questions, for, excepting the. question relating to the alleged improvements, the other questions arising for determination would all be the same even if separate suits had been brought The only question therefore is whether it can be said on the facts arid circumstances of this case that the appellants' right to relief arose out of the same act or transaction or series of acts or transactions.

5. Learned Counsel for the appellants argued that the detention of the temple property without right was the cause of action on which the suit was based and that it was immaterial that the property was originally leased in four distinct parcels to defendants' ancestors under separate muchilikas. After the tenancies were terminated, the position simply was that the temple land was in the unlawful occupation of the defendants who were bound to deliver up possession. Stress was laid on the fact that the property claimed is a single block of land comprised within the boundaries specified in the plaint schedule and had been leased to the respondents' ancestors under a single lease till 1882, and that the defendants' occupation does not correspond with the portions demised under the leases of 1882 as there have been partitions and alienations from time to time since then. It was submitted therefore that the appellants were entitled to sue for the recovery of the land as a whole and not in parts from the several defendants in separate suits. Reliance was placed principally upon the decision in Nundo Kumar Nasker v. Banomali Gayan I.L.R.(1902) Cal. 871 in support of this contention. The plaintiff in that case brought a suit for ejectment against his landlord and certain other persons to whom the land was let in different portions under different demises, on the allegation that he had previously obtained a lease of the same land but was forcibly dispossessed by the tenant-defendants in collusion with the landlord. Though conspiracy among the defendants to dispossess the plaintiff was put forward, the plea of multifarious-ness was dealt with on the basis that no such conspiracy on the part of the defendants was established. In overruling the plea the learned Judges observed:

What concerns the plaintiff is that another is wrongfully in possession of what belongs to him, and that fact gives him his cause of action. If this is so, where there is but one person in possession, can there be a difference when the land is in the possession of more than one? We think not. It appears to us, so far as the plaintiff's, cause of action is concerned, that it is a matter of indifference to him upon what grounds the different persons in possession may seek to justify the wrongful detention of what is his. What he is entitled to claim is the recovery of possession of his land as a whole and not in fragments and we think that all persons, who oppose him in the enforcement of that right, are concerned in his cause of action and ought accordingly to be made parties to a suit in which he seeks to give effect to it.

In another place they say:

What gives the plaintiff his cause of action, is, we think, the wrongful detention of the land which is his--not the taking of it. Just as in detinue the gist of the action is the wrongful detention and not the original taking or obtaining of the goods; and as in that action it is immaterial whether the goods were originally obtained by lawful means, as by a bailment, or by a wrongful act, such as a trespass so we think it is with respect to a suit for the recovery of land.

These observations are, in my opinion, applicable to the facts of this case. It is no doubt true that the decision was under the old Civil Procedure Code where the test was whether the right to relief arose out of the same matter but as pointed out by Ramesam, J., in Govindarajulu Mudaliar v. Alagappa Thambiran MANU/TN/0160/1926 : AIR1926Mad911 , the object underlying the change in the language of the corresponding provision in the new code was to widen the scope of the rule permitting joinder. The tendency of the later decisions both in England and in this country based ore more or less similar provisions is to construe them liberally; and I think it may safely be stated, as a general rule, that--where substantial common questions of fact are involved in different claims against different parties, their joinder in one suit will not be regarded as multifarious--see per Scrutton, L.J., in Payne v. British Time Recorder Co (1921) 2 K.B. 1 In the present case, as already observed, almost all the questions would be common if different suits were brought against the defendants for recovering portions of the land in their respective occupation. I hold therefore that the suit as framed is not vitiated by misjoinder of parties and causes of action.

2. The next objection raised by the respondents to the maintainability of the suit is more formidable and is based on the Madras City Tenants' Protection Act, 1921. The suit land is situated in that part of the City which is now known as Thyagarayanagar and the first question for determination is whether the Act extends to this area. It is argued for the appellants that the Act extends only to the City of Madras as it existed at the commencement of the Act, and as this area was outside the limits of the City when the Act came into force in 1922, it does not apply to the case and the respondents are not entitled to protection under it. There is however, nothing in the Act to confine its application to the area comprised in the City of Madras at the time of its commencement. Section 1 (2) merely says that it extends to the City of Madras. The expression City of Madras is not defined in the Act but Section 3 (5) of the Madras General Clauses Act defines it as meaning

such local area as is declared from time to time to be the City of Madras under any Act for the time being in force relating to the municipal affairs of such City.

The local Government acting under Section 3 (9) of the Madras City Municipal Act has by notification No. 59, dated 18th January, 1924 and published at p. 23 of Part I (a) of the Fort St. George Gazette, of 1924 declared the Mambalam Extensions-area .(since called Thyagarayanagar) to be part of the City of Madras. There is nothing in this notification to indicate that the said declaration is solely for the purpose of the Madras City Municipal Act.. It was suggested that the notification having been issued under that Act must be understood as including the new area in the City solely for purposes of municipal administration, but it is clear from Section 3 (5) of the General Clauses Act referred to above that a declaration made under any Act relating to the municipal affairs of the City will determine the meaning of the expression City of Madras not merely for the purposes of that Act but for every Act made by the Governor of Port St. George in Council after the commencement of the General Clauses Act. Reliance was placed for the appellants upon the decision in Biraj Mohini Dassi v. Gopeswar Mullick I.L.R.(1899) . Cal. 202 where it was held that the term Town of Calcutta used in the bengal tenancy act could only relate to the Town as it existed at the time of the passing of the Act and could not be understood as including the area brought within its limits by the Bengal Act II of 1888. The decision, however, was based on the special terms of the latter Act which was considered to extend the boundary of Calcutta only for municipal purposes and not for all purposes and has therefore no application here. Reference was also made to Jotiram Khan v. Jonaki Nath Ghose (1914) 33 I.C. 54 where the question was whether the Bengal Tenancy Amendment Act; 1907, giving an extended definition of the expression Town of Calcutta for the purposes of the bengal tenancy act which had no operation within the town, retrospectively affected persons who before its commencement had acquired rights in land outside the town under the provisions of the main Act, and it was held that it did not as it was not merely of a declaratory character but effected a material alteration of the law. In the present case, however, no question arises of the retrospective operation of any new statute. The City Tenants' Protection Act clearly purports to affect all tenancies of land within the City of Madras created before the commencement of the Act and the only question is whether an additional area included in the City by an authority duly empowered in that behalf also falls within the scope of the Act. If the Act affected, as it was obviously intended to do, the pre-existing rights of landlords within a certain area before the . notification of 1924, it affects similar rights within a larger area after the notification by virtue of the definition of the term City of Madras in the General Clauses Act, and I can see nothing in this which contravenes any principle. I hold therefore that the City Tenants' Protection Act is applicable to the land in suit and that the respondents are entitled to the benefits of that Act.

3. It accordingly becomes necessary to consider whether the notices issued to the respondents did not comply with the requirements of Section 11 of the Act and the suit could be dismissed on that ground. This question has not been dealt with* in the judgment under appeal presumably because it did not arise in the view-taken by the learned Judge regarding the applicability of the Act. Section 11 says:

No suits in ejectment or applications under Section 41 of the Presidency Small Cause Courts Act, 1882, shall be instituted or presented against a. tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building, and offering to pay compensation for the building and trees, if any, and stating the amount thereof.

A copy of such notice shall at the same time be sent to the Commissioner of the Corporation of Madras.

It will be seen that as regards the period prescribed the notices issued by the appellants fulfil the requirement of the section, for, the suit was instituted more than nine months after the. notices were given. But they admittedly did not offer to pay compensation for the building's and trees, nor were copies of the notices sent to the Commissioner of the Corporation of Madras. The non-service of the copies of the notices on the Commissioner may, however, be disregarded as a mere irregularity as it is not made a condition precedent to the institution of the suit, but the absence of compliance as regards the offer to pay compensation stands on a different footing. It was said that the appellants could not make such an offer as they were disputing the applicability of the Act to the case and denying the respondents' right to claim protection under it and it was suggested that the section should not be read as requiring compliance with a condition which would necessarily involve the abandonment by a person who proposed to file a suit in ejectment of one of his main contentions unless he was prepared to risk the dismissal of his suit. Such considerations', however, can have little weight in the face of the clear language of Section 11 which imposes an unqualified obligation upon the Court not to entertain a suit in ejectment in the absence of compliance with its provisions. As the Privy Council remarked in Bhagchand Dagadusa v. Secretary of State for India (1927) 53 M.L.J. 8l : L.R. 54 IndAp 338 : I.L.R. 51 Bom. 725(P.C.) with reference to the similar language of prohibition used in Section 80, Civil Procedure Code, the section is express, explicit and mandatory and it admits of no implications or exceptions.

4. Even so, it was urged, the section could not affect the appellants' suit in so far as it related to the cultivable lands in the possession of the respondents as the notice required to be given to the tenant is one calling upon him to surrender possession of the land and building thus showing that the section was applicable only to lands with buildings thereon. It was pointed out that under the muchilikas of 1882 only a comparatively small portion was let as building land and the rest was let for cultivation, as regards which the notices issued to the respondents were sufficient under the general law to terminate their tenancy. In the first place, it is not clearly established that the buildings now existing on the land have all been put up only on the portions let for building purposes. On the other hand, it would appear from Ex. XI that the area now occupied by the buildings is 3 cawnies and 1962 sq. ft. which is far in excess of the total extent of 8 grounds and, .360 sq. ft. which was let as building land under all the muchilikas of 1882. It is therefore impossible now to differentiate between the portions let for building and the portions let for cultivation and to treat them as standing on a separate footing for purposes of Section 11. The appellants themselves made no such distinction in the notices issued by them to the respondents and it is indeed their case, as already observed, that the whole block of land should be treated as a single item of property which they are entitled to recover from all the defendants in one suit without being affected by any question of misjoinder. I am therefore of opinion that Section 11 must be applied to the suit land as a whole and its requirements not having been complied with, the suit is bound to fail.. In this view, it becomes unnecessary to consider the other questions arising in the case.

5. In the result the appeal is dismissed with costs.

6. As regards the memorandum of cross objections, it is directed against the findings recorded, by the lower Court on the other pleas of the respondent which were all decided against them. A preliminary objection was taken by the appellants that a memorandum of cross objections could not be preferred against mere findings when the decree was one of dismissal. This objection is no doubt well founded. But as it was open to the respondents in such circumstances to sustain the decree of the Court below even on any ground which has been decided against them by that Court, the memorandum of objections was really unnecessary in this case and it is accordingly dismissed without costs.