Periyathambi @ Meyyar and Others vs Devi

M. Venugopal, J.—The Civil Revision Petitioners/respondents/defendants have preferred this civil revision petition as against the order

dated 27.01.2009 in I.A. No. 1110 of 2008 in O.S. No. 391 of 2006 passed by the learned District Munsif, Pudukkottai, in allowing the

application filed by the respondent/petitioner/plaintiff praying for appointment of an advocate commissioner to harvest the paddy cultivated in the

suit lands with the help of the Village Administrative Officer and police and to deposit the sale proceeds into the Court.

The trial Court while allowing I.A. No. 1110 of 2008 in O.S. No. 391 of 2006 has appointed one Thiru. Ravichandran, Advocate, as

Advocate Commissioner and has directed him to harvest the paddy in the petition mentioned property with the help of the Village Administrative

Officer and machineries and to sell the harvested paddy to the marketing committee and to deposit the sale proceeds into the Court etc.

The learned Counsel for the revision petitioners urges before this Court that the revision petitioners are the cultivating tenants of the suit lands

and the respondent/petitioner/plaintiff is a recent purchaser from the erstwhile absentee landlords of the suit lands with notice of the petitioners''

tenancy right and as a matter of fact, the revision petitioners have filed the petitions before the record of tenancy Tahsildar, Pudukottai against the

landlords to enter the name as the tenants to the respective lands under their cultivation and that the present suit has been filed by the

respondent/petitioner/plaintiff as a counter blast and further, the respondent has also filed an application to implead her in the proceedings before

the record of tenancy Tahsildar and moreover, the I.A. No. 703 of 2006 in O.S. No. 391 of 2006 filed by the respondent/petitioner/plaintiff has

been allowed by the trial Court and as against the said order, C.M.A. No. 2 of 2009 has been filed by the revision petitioners and in I.A. No. 2 of

2009 in C.M.A.No.2 of 2009, the learned Sub Judge, Pudukkottai, has stayed the order of the trial Court in I.A. No. 703 of 2006 in O.S. No.

391 of 2006 and therefore, the trial Court has precluded in law to pass order appointing an Advocate Commissioner in I.A. No. 1110 of 2008, to

harvest the crops in the suit lands in defiance of the stay order and therefore, the said order is vitiated, being tainted with illegality and impropriety

and that the revision petitioners are poor agricultural tenants who are solely relying upon the suit lands for their livelihood and their existence and

therefore, prays for allowing the civil revision petition to prevent miscarriage of justice.

The learned Counsel for the revision petitioners cites the decision of this Court in Arulmighu Sundareswara Swamy Thirukoil Vs. K. Bama, ,

wherein it is held as follows:

The question as to whether a person is a cultivating tenant or not, is to be decided only by the authorities constituted under the Act and the Civil

Court has no jurisdiction to deal with the matter.

The decision in Seven Hills Real Estate, a partnership firm, rep. by its Managing Partner, P.N. Arumugham v. Zeebunnissa Begum and 3 Ors.

reported in 2008(4) CTC 121, is relied on the side of the revision petitioner to the effect that ''the validity of contentions raised by rival parties

cannot be considered at interlocutory stage and the questions to be decided by Court are as to whether refusal to grant injunction would cause

irreparable hardship to plaintiff and whether granting injunction would cause hardship to defendant and that balance of convenience and prima facie

case also relevant consideration.''

The learned Counsel for the respondent/petitioner/plaintiff supported the trial Court''s order in allowing the application for appointment of an

Advocate Commissioner and according to him, the reasons assigned by the trial Court in allowing the application for appointment of an Advocate

Commissioner are quite proper and reasonable and the same need not be interfered with by this Court sitting in revision.

The learned Counsel for the respondent/plaintiff cites the decision in Arumugam and Another Vs. Sri. Dharmapuram Mutt, , wherein it is held

that ''jurisdiction of civil Court''s is not totally ousted to entertain and decide issues as to whether land is under tenancy agreement and the authority

under the Act do not have exclusive jurisdiction to decide such issue and that the provision of Section 16-A does not apply where there is no

relationship of Land-Lord and Tenant.

This Court has paid its anxious considerations to the arguments advanced on either side and noticed the same.

In the affidavit filed in I.A. No. 1110 of 2008, in paragraph No. 5, it is specifically averred by the respondent/petitioner/plaintiff that in major

portions of the suit properties, she has cultivated the paddy crops and that the paddy crops will be ready for harvest around 10th January 2009

and that on 26.12.2008, when the respondent/petitioner/plaintiff has visited the suit property, the revision petitioners/defendants have threatened

the respondent/plaintiff that they will not allow her to harvest the paddy and to take the same etc. and if the respondent/plaintiff is prevented from

harvest the paddy crops in the suit properties, they the paddy crops will get destroyed resulting in heavy loss and without the assistance from the

Court, the respondent/plaintiff cannot harvest the cultivated paddy from the suit properties and if the paddy crops in the suit properties are not

harvested in time, then they will get destroyed and therefore, the cultivated paddy crops in the suit properties will have to be sold and the sale

proceeds will have to be remitted with the assistance of an Advocate Commissioner and therefore, the said application is filed and further, a

direction may be issued to the Village Administrative Officer and the police authorities to render assistance to the Advocate Commissioner.

In the counter filed by the first revision petitioner/first defendant and adopted by other petitioners/defendants, it is inter alia averred that in fact,

the revision petitioners have cultivated the paddy crops in the suit properties and the paddy crops presently is ripen for harvest and no such

incident as alleged by the respondent/petitioner/plaintiff has taken place on 26.12.2008 and that I.A. No. 1110 of 2008 has been filed falsely and

there is no necessity to appoint an Advocate Commissioner to harvest the paddy crops and to deposit the sale proceeds into the Court and the

revision petitioners are law abiding individuals and when the petition mentioned property is in possession of the civil revision petitioners, the civil

revision petitioners in the suit properties after incurring heavy expenditure, have cultivated paddy crops and therefore, the

respondent/petitioner/plaintiff has no prima facie case besides the balance of convenience and as such, the said application has to be dismissed.

Before the trial Court, in I.A. No. 1110 of 2008 on respective sides, no one witness was examined and further on the side of the

respondent/plaintiff, no document was marked. However, on the side of the revision petitioners/respondents, Exs.R.1 to R.16 have been marked.

A perusal of the plaint indicates that a declaration has been sought for by the respondent/plaintiff that she is the absolute owner of the suit

properties and for consequent permanent injunction restraining the defendants, his men from in any way interfering with the plaintiff''s possession of

the suit properties.

It is significant to make a mention that the respondent/petitioner/plaintiff has got the suit properties through sale deeds and she has been in

direct possession and enjoyment of the same and further that, the patta and other revenue records in respect of the suit properties have been

changed in the name of the respondent/plaintiff that she paid the kists to the Government.

At this stage, it is not out of place to point out that the civil revision petitioners/defendants have inter alia stated that the first revision petitioner

and 11 others, in respect of their cultivation portion, have filed necessary application claiming their right to get themselves declared as ''Weekly

Cultivating Record Order'' against the respondent/petitioner/plaintiff''s predecessor in title and RTR 2 of 2006 and RTR 3 of 2006, two

proceedings are pending before the Tahsildar, Pudukkottai and in those proceedings, the respondent/plaintiff has filed an I.A at the first hearing

praying permission to get themselves impleaded in the RTR proceedings referred to above and the same is pending and without disclosing these

RTR proceedings, the respondent/plaintiff has filed the present suit without jurisdiction and the same is liable to be dismissed. The revision

petitioners in certain portion of the suit properties are doing agricultural works as part of their livelihood and therefore, pray for the dismissal of the

suit.

Concededly, the main suit is pending. It is relevant to make a mention that the respondent/plaintiff has filed I.A. No. 703 of 2006 praying for

the relief of temporary injunction restraining the revision petitioners/respondents/defendants from in any way interfering with the plaintiff''s peaceful

possession of the suit properties and the same has been ordered in favour of the respondent/plaintiff on 27.04.2007.

Aggrieved against the said order passed by the trial Court in I.A. No. 703 of 2006 dated 27.04.2007, the revision petitioners have preferred

C.M.A. No. 2 of 2009 before the first appellate Court, viz., the learned Sub Judge, Pudukkottai and in I.A. No. 2 of 2009 in C.M.A. No. 2 of

2009, the Sub Court, Pudukkottai, on 06.01.2009, has granted ad interim stay initially till 20.01.2009 and later on, it has been extended lastly on

17.02.2009 till 03.03.2009.

The main grievance of the revision petitioners is that when the orders passed in I.A. No. 703 of 2006 in O.S. No. 391 of 2006 by the trial

Court is stayed by the first appellate Court, viz., the Sub Court, Pudukkottai, in I.A. No. 2 of 2009 in C.M.A. No. 2 of 2009 dated 06.01.2009

and when the stay is in force, the trial Court is precluded to pass the impugned order appointing an Advocate Commissioner to harvest the paddy

crops in the suit land in defiance of the stay order dated 06.01.2009 and therefore, the said order passed in I.A. No. 1110 of 2008 suffers from

illegality and impropriety in the eye of law.

One cannot brush aside an important fact that the respective parties have taken a divergent stand that they have cultivated the paddy crops in

the suit properties. It cannot be disputed that RTR 2 of 2006 and RTR 3 of 2006 in respect of the cultivating tenancy right of the revision

petitioners etc. are pending before the Tahsildar, Pudukkottai, in which the respondent/plaintiff has filed an impleading application and the enquiry

is pending.

In short, the averments and counter averments made in the pleadings (plaint and written statement) will have to be gone into in detail at the time

of conduct of trial of the main suit. It cannot be gainsaid that no oral evidence have been adduced by the respective parties in I.A. No. 1110 of

2008 before the trial Court to enable the trial Court to come to the conclusion conclusively as to who has raised the cultivated paddy crops.

However, only on the side of the revision petitioners/defendants, the documentary evidence, Ex.R.1 to R.16 have been marked.

Moreover, at best, a report of the Advocate Commissioner can only be a piece of evidence in a given case and it may be used for the purpose

of appreciating the evidence on record. Indeed, the position of law is that a report of the Commissioner is not binding on a Court of law which is

free to arrive at its own conclusion at the appropriate time.

Even though the revision petitioners/appellants/defendants in I.A. No. 2 of 2009 in C.M.A. No. 2 of 2009, have obtained an order of stay on

06.01.2009 in respect of the orders passed by the trial Court in I.A. No. 703 of 2006 in O.S. No. 396 of 2006 on 27.04.2007, since I.A. No.

1110 of 2008 has been filed by the respondent/plaintiff praying for appointment of an Advocate Commissioner to harvest the cultivated paddy

crops in the suit properties with the assistance of the Village Administrative Officer and the Police Department and to remit the sale proceeds into

the Court after selling the same and the resultant order of the trial Court in allowing the said application by way of appointment of an Advocate

Commissioner, Thiru. Ravichandran, Advocate and directed him to harvest the standing paddy crops with the help of the Village Administrative

Officer and to sell the same to the Marketing Committee and to remit the sale proceeds into the Court, cannot in any way be construed to fetter

the rights of the trial Court in passing such orders to secure the ends of justice, in the considered opinion of this Court. Further, if an Advocate

Commissioner has not appointed as claimed in the I.A. No. 1110 of 2008 and if the cultivated paddy crops are not harvested in time, then, the

cultivated paddy crops will get destroyed affecting the rights of the parties concerned in the eye of law.

On the other hand, the act of the trial Court in appointing an Advocate Commissioner in I.A. No. 1110 of 2008 will not prejudice the right of

either parties and primordial interest of protecting the cultivated paddy crops based on the facts and circumstances of the case in I.A. No. 1110 of

2008, has been taken care of by the trial Court in ordering the appointment of an Advocate Commissioner and to sell the cultivated paddy crops in

the Marketing Committee and to remit the sale proceeds thereof into the Court.

In short, technically speaking, there is no express bar in law that the trial Court cannot pass orders in I.A. No. 1110 of 2008 when admittedly

in I.A. No. 2 of 2009 in C.M.A. No. 2 of 2009, interim stay has been granted in regard to the orders passed in I.A. No. 703 of 2006. At this

stage, it is relevant to point out that the appointment of an Advocate Commissioner is a discretion to be exercised by the trial Court in accordance

with law and the circumstances of each case. In the instant case on hand, this Court opines that the trial Court has exercised its discretion in

appointing the Advocate Commissioner in I.A. No. 1110 of 2008 on 27.01.2009, in a proper manner and this cannot be found fault with.

In that view of the matter, the Civil Revision Petition fails and the same has to be dismissed in the interest of justice.

In the result, this Civil Revision Petition is dismissed, leaving the parties to bear their own respective costs and the order passed by the trial

Court in I.A. No. 1110 of 2008 on 27.01.2009 is affirmed by this Court for the reasons assigned in this revision. Consequently, the connected

Miscellaneous Petitions are dismissed. However, liberty is given to the either parties to stake their claims in regard to the sale proceeds deposited

into the trial Court by means of filing necessary application in the manner known to law and further, they are free to adduce oral and documentary

evidence to substantiate their case in working out the remedies and the trial Court is to dispose of the same on merits uninfluenced by any of the

observations made by this Court in this revision.