K.Sethu Ammal v. Ranga Nayaki

3.The case of the plaintiff as stated in the plaintwould be as follows:-The first plaintiff's husband and father of the plaintiffs2 to 6, by name Krishnamurthy Iyer, was the owner of the suitproperties. He died one month back. The plaintiffs are the onlyheirs entitled to succeed the said properties. The suit propertybears T.S.No.1388. The suit property measures 2/3rd of 9300 sq.ft.The defendant executed a paguthy chit in favour of the saidKrishnamurthy Iyer on 19.08.1961, agreeing to pay Rs.2.50p permonth. Subsequently, it was increased to Rs.3/- per month. Thedefendant was permitted to put up a thatched shed and reside in thesuit property and he is in possession only from 1961. He has gotno other right on the property. The period of tenancy was only forone year. But, the defendant continues on the same terms oftenancy. A notice was issued to him terminating his tenancy on02.09.1970 by the deceased Krishnamurthy Iyer. The defendant gavea reply on 01.10.1970 and the contents of the same are all false.The defendant pleaded that he is liable to pay only Rs.2.50p by wayof paguthy per month. The property is situate west of the road.The middle portion in that Survey Number belongs to one Pattu Iyer.The northern and southern portions abutting the portion of PattuIyer belongs to the plaintiffs. The defendant was put intopossession of the said property and the western extremity ends tillthe well portion on the western side in the backyard. Further westof the well, the defendant has got no right. The plaintiffs are inpossession of these properties. There is a lane portion on thesouthern side in the suit properties, and the plaintiffs are havingaccess to their backyard through the lane portion. The plaintiffsin order to avoid unnecessary controversy, restrict their claim ofrent to Rs.2.50 per month. The plaintiffs are in need of thepremises. The defendant is not entitled to the benefits of theCity Tenants Protection Act, as he became a tenant only from 1961.The plaintiffs are now constrained to file the suit for recovery ofpossession and the rent for the month of March to May 1973.4.The case of the defendant as stated in the writtenstatement would be as follows:-(a)The suit is not maintainable either in law or onfacts. The suit is bad for non-joinder of parties. Apart fromthe plaintiffs, there are other heirs of Krishnamurthy Iyer, i.e.,three daughters. Hence, the suit filed by plaintiffs alone is notmaintainable. The description of property is not clear and thereis no demarcation or clear extent of the suit property given in theplaint. The defendant became a tenant of the suit property alongwith the middle 1/3rd portion, which belong to one Pattu Iyer asearly as 1956. Hence, it is false to state that the defendant isin possession of the suit property only from 1961. The defendantput up a superstructure in the middle portion as well as in a small https://hcservices.ecourts.gov.in/hcservices/ extent in the share of plaintiffs for shop and for residentialpurpose. The entire extent has been fenced all around and thedefendant is in enjoyment of about the entire 9300 sq.ft from thenonwards. The defendant is not aware of the alleged paguthy chitdated 19.08.1961. He is an illiterate person and the deceasedKrishnamurthy Iyer was helping him in the dispute between defendantand Pattu Iyer. During that time, Krishnamurthy Iyer might havetaken some ante-dated document from the defendant without hisknowledge. The defendant is not aware of the contents and recitalsof the said document, which is not produced in Court. Thedefendant will file a detailed written statement if necessary afterthe document is produced.(b)The share of the plaintiffs and Pattu Iyer, whichcomprise the entire extent, measures about 9300 sq.ft. Defendanthas put up a masonary superstructure in a portion, which will beworth Rs.2000/-. Defendant is entitled to the benefits of theCity Tenants Protection Act, since the superstructure wasoriginally put up for non-residential purpose and it has been soheld by the High Court in S.A.No.328 of 1969, in the proceedingsbetween the defendant and Pattu Iyer in respect of middle portionof the suit survey number. Hence, the present suit without propernotice under Section 11 of the City Tenants Protection Act isliable to be thrown out. (c)The defendant is also entitled to the benefits ofKudiyiruppu Act, since he is residing in the suit property. He hasno other manicut of his own. He is an agriculturist earning hislivelihood mainly depending upon agriculture and he is a tenant inrespect of about 100 kulies of Perumalkoil lands, in which he israising plantains. Hence, on that ground also plaintiffs are notentitled to the relief of possession. In major portion of theproperty, excluding the portion occupied by the superstructure, thedefendant is cultivating plantains, chillies, etc., by contributinghis own physical labour. As such, the defendant is entitled to thebenefits of the Cultivating Tenants Protection Act and the suit isnot maintainable.(d)The plaintiffs are not in possession of any propertybeyond the well. There is no lane portion on the south nor theplaintiffs are having any access through the same. The portion westof the well is being cultivated with plantains, vegetables, etc.,by the defendant. The claim for arrears of paguthy is notsustainable, since the same has been paid by M.O. The notice toquit is not proper and on that ground also, the suit is liable tobe dismissed. The plaintiffs are not entitled to the reliefsclaimed for more than one reason and it is prayed that the suit maybe dismissed with costs. https://hcservices.ecourts.gov.in/hcservices/

5.The trial court had framed necessary issues andentered trial. After appraising the evidence, the trial court hadcome to the conclusion of decreeing the suit in O.S.No.392 of 1973on 30.06.1975. Having aggrieved against the judgment and decreepassed by the trial court on 30.06.1975, the defendant preferred anappeal in A.S.No.111 of 1975 challenging the judgment and decreedated 30.06.1975. After hearing both parties, the then firstappellate court allowed the appeal with costs and thereby, the suitfiled by the plaintiffs was dismissed with costs. Challenging thesaid reversal judgment and decree passed by the then firstappellate court, an appeal was preferred in S.A.No.340 of 1978before this Court. This Court after admitting the said appeal,formulated the substantial questions of law and had allowed theappeal and remanded the matter with specific direction to theExecution Court and passed a conditional decree on 25.02.1981. Thesaid order was misunderstood by the trial court that it wasremanded to the said Court and the suit was once again tried andthe trial court after appraising the evidence once again decreedthe suit with costs on 21.06.1982. The defendant had challengedthe said judgment and decree passed by the trial court dated21.06.1982 in A.S.No.95 of 1982. The first appellate court heardthe arguments of both sides and had allowed the appeal and thus,remanded the matter to the trial court for fresh disposal inaccordance with law. The said order of remand was challenged bythe plaintiff before this Court in CMA.No.329 of 1984 and thisCourt after hearing both parties allowed the appeal and directedthe first appellate court to hear the appeal and to pass judgmentand decree, in accordance with law. In obedience to the said orderpassed by this Court in CMA.No.329 of 1984 dated 20.11.1996, thefirst appellate court heard the arguments of both sides and allowedthe appeal on 31.08.1998 and thereby, the suit filed by theplaintiff before the trial court was dismissed, once again.6.Having aggrieved by the order of dismissal of thesuit in the reversal judgment of the first appellate court made inA.S.No.95 of 1982 dated 31.08.1998, the plaintiffs have preferredthis Second Appeal before this Court.7.On admission, this Court had formulated thefollowing substantial questions of law for consideration in thisappeal:-(a)Whether the proceedings culminating in ajudgment of lower appellate Court inA.S.No.95 of 1982 dated 31.08.1998 will be anullity and are liable to set aside in viewof the judgment rendered by this Hon'bleCourt in S.A.No.340 of 1978 dated 25.02.1981whereunder no remand had been made. The https://hcservices.ecourts.gov.in/hcservices/ decree rendered by the trial court on date infavour of the plaintiff for recovery ofpossession was confirmed and directed theeligibility or otherwise of the benefits ofTamil Nadu Act XL of 71 claimed by thedefendant are to be decided by ExecutingCourt ?(b)Whether the lower appellate Court erred inlaw in placing the burden of proving that thesuit property being used not for residentialpurpose while it is imperative for thepersons claiming benefits of Tamil Nadu ActXL of 71 to establish his case ?(c)Whether the lower appellate Court erred inlaw in failing to give a finding regardingthe status of the respondent that is to saythat they are agriculturists or agriculturallabour?(d)Whether the lower appellate Court erred inlaw in failing to note that the respondentswould not be entitled to Tamil Nadu Act XL of71 by reason of the exclusion of Clausecontained in clause 3(3) of the Act ? And(e)Whether the lower appellate Court in anyevent in dismissing the suit for recovery ofpossession in respect of 9300 sq.ft whilerespondents claimed that there is a dwellinghouse 3 ft x 24 ft and in failing to takedefinition "Kudiyiruppu" which restricts thearea of the extent occupied by superstructureand the adjacent area for convenientenjoyment ?"8.However, the learned counsel for the respondents hadsuggested additional substantial questions of law in his argumentand the said additional questions of law are referred hereunder andits necessity will be discussed during the disposal of the appeal:-(1)Whether in Second Appeal by the Hon'ble HighCourt under Section 100 of CPC incontinuation suit proceedings other thanexecution proceedings (when no executionproceedings are pending in any court or notbeing filed within 12 years) any directioncould be issued to the execution court. https://hcservices.ecourts.gov.in/hcservices/ (2)Whether the plaintiffs could now maintain astand that the trial Court erred in law indeciding O.S.No.392 of 1973 and thereby,treating that decree dated 21.06.1982 inO.S.No.392 of 1973 nullity, when no crossappeal was filed by the plaintiffs.(3)Whether the plaintiffs could now raise a pleaof any error said to have been committed bythe trial Court and the first appellate Courtafter participating in the trial courtssubsequent to the remand order, and alsofirst appeal and in CMA before this Hon'bleHigh Court respectively before this Hon'bleHigh Court.(4)Whether under Section 100 CPC in SecondAppeal the Constitution of the Civil Courtcould be changed. "9.Heard Mr.M.Balasubramaniam, learned counselappearing for the appellants / plaintiffs and Mr. Mohammed Rafi,learned counsel appearing for the respondents / defendant.10.The learned counsel appearing for the appellants /plaintiffs would submit in his argument that the suit wasoriginally filed by the plaintiffs for recovery of possession of9300 sq.ft of land excluding Pattu Iyer's land in the middleportion of the front side i.e., abutting the road and for costs.He would also submit that the defendant's case was that he had putup superstructure in the middle portion in Pattu Iyer's land aswell as in a small extent in the land of plaintiffs for a shop andresidential purpose and therefore, it could be easily construedthat the portion occupied in the plaintiffs' property waspredominantly for shop and the ancillary purpose is for residence.11.The learned counsel appearing for the appellants /plaintiffs would also submit that the defendant was claiming thebenefits of The City Tenants Protection Act, The CultivatingTenants Protection Act and also The Occupants' Kudiyiruppu Act inorder to safeguard his possession. He would further submit thatthe said submissions of the defendant that he would entitle to TheCity Tenants Protection Act and The Cultivating Tenants ProtectionAct were not upheld by this Court in S.A.No.340 of 1978 andtherefore, he is not entitled to the said benefits of those Acts.He would further submit that the possession of the defendant inPattu Iyer's land was confirmed to be under The City TenantsProtection Act in the decision made in S.A.No.328 of 1969, in whichthe plaintiffs are not parties. He would further submit in his https://hcservices.ecourts.gov.in/hcservices/ argument that the defendant did not object the ownership of theplaintiffs and his only claim was that he is entitled to thebenefits of The Tamil Nadu Occupants of Kudiyiruppu (Conferment ofOwnership) Act, 1971. 12.The learned counsel appearing for the appellants /plaintiffs would further submit that this Hon'ble Court inS.A.No.340 of 1978 had remanded the matter to the Execution Court.This Hon'ble Court directed in the said judgment that whether onthe date when the Act came into force, namely, The Tamil NaduOccupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 andsubsequently thereafter, the defendant was in occupation of anyportion for the purpose of running the shop and if the respondent /defendant ceases to run the shop, that cannot prevail with theExecuting Court. The order further says that the test to determineas to whether the shop was run or not during the period when theAct 1940 of 1971 came into force until this date i.e., 25.02.1981.It is open to the Execution Court for appointing the Commissionerfor the purpose of ascertaining the said fact and the parties areto be permitted to adduce evidence oral and documentary for thatpurpose. With the said order of remand, the suit was decreed tothat extent and a conditional decree was passed. 13.The learned counsel appearing for the appellants /plaintiffs would also submit that when this Court in Second Appealhas passed a conditional decree with a direction to the ExecutionCourt to find out certain facts and to pass orders thereon, thetrial court had erroneously taken cognizance of the case andconducted the case, after appointment of a Commissioner to inspectthe suit properties and to note the particulars as ordered by thisCourt in the Second Appeal. After the Commissioner filed hisreport and on further evidence adduced by parties, the trial courthad passed a judgment and decree as prayed for. He would furthersubmit that the defendant had preferred an appeal and the firstappellate court had ordered remand and against which, theplaintiffs preferred a Civil Miscellaneous Appeal in CMA.No.329 of1984 and the Hon'ble High Court allowed the appeal and directed thefirst appellate court to consider the matter once again. 14.The learned counsel appearing for the appellants /plaintiffs would further submit that all the things happened intaking cognizance, conducting trial, passing judgment by the trialcourt as well as receiving the appeal made by the defendant beforethe first appellate court and passing a judgment of remand thereinand the preference of Civil Miscellaneous Appeal by the plaintiffbefore this Court and the judgment passed by this Court in theCivil Miscellaneous Appeal remanding the matter to the firstappellate court itself and the impugned judgment passed by thefirst appellate court are all against the judgment passed by this https://hcservices.ecourts.gov.in/hcservices/ Court in S.A.No.340 of 1978. The direction made by this Court inS.A.No.340 of 1978 was to the effect that the Execution Court hasto go into the said fact for finding the entitlement of thebenefits of Kudiyiruppu Act and to either proceed with ExecutionProceedings or to close the Execution Proceedings depending uponthe finding reached. He would also submit that the Execution Courtcan proceed in accordance with the directions passed by this Courtin S.A.No.340 of 1978 dated 25.02.1981, after filing an ExecutionPetition by the plaintiffs. He would further submit that instead,the trial court had committed the first mistake by taking the caseon file and it was followed by the first appellate court and alsothis Court in disposing the appeal and the CMA preferred by theparties. He would also submit in his argument that such judgmentpassed for want of jurisdiction is clearly 'non-est' in the eye oflaw. The learned counsel appearing for the appellants /plaintiffs would cite a judgment of the Hon'ble Apex Court reportedin AIR 1954 SC 340 (1) (Kiran Singh and others ..vs.. Chaman Paswanand others) in support of his argument. 15.Relying upon the aforesaid judgment of the Hon'bleApex Court, he would argue that the jurisdiction assumed by thetrial court was very much against the orders passed by this Courtin S.A.No.340 of 1978 and the further proceedings are also not inaccordance with the directions and any orders passed therein wouldbe a nullity.16.The learned counsel appearing for the appellants /plaintiffs would also submit that wrong cognizance made by thetrial court was certainly against the tenor of the order passed bythis Court in S.A.No.340 of 1978. He would also submit that themistake committed by the trial court was continued by the firstappellate court as well as this Court inadvertently and thereby,the plaintiffs were not given the fruits of the decree made inS.A.No.340 of 1978. He would further submit that the celebratedmaxim "Actus curiae neminem gravabit" which means, no person shallbe prejudiced by an act of the Court, should have been followed.He would cite a judgment of the Hon'ble Apex Court reported in AIR1988 SC 1531 (1) (A.R.Antulay ..vs.. R.S.Nayak and another) insupport of the principle of law he relied upon. Such a judgmentpassed without jurisdiction would also be considered 'perincurium', as decided by the Hon'ble Full Bench of Orissa HighCourt reported in AIR 1992 Orissa 261 (Krishna Chandra Pallai ..vs.. Union of India and another), which describes the meaning of'per incurium'. In support of his argument, he would also cite yetanother judgment of the Hon'ble Apex Court reported in AIR 1996 SC1819 (1) (Urban Improvement Trust, Jodhpur ..vs.. Gokul Narain andanother). https://hcservices.ecourts.gov.in/hcservices/

17.The learned counsel appearing for the appellants /plaintiffs would further submit that when the matter is pendingbefore the higher forum, the said dispute is considered to bemerged with Subordinate Forum's decision. For that, he has cited ajudgment of the Hon'ble Apex Court reported in 2000 (6) SCC 359(Kunhayammed and others ..vs.. State of Kerala and another). Hewould also rely upon the judgments of the Hon'ble Apex Courtreported in 2001 (5) SCC 570 (Amba bai and others ..vs.. Gopal andothers) and 2009 (1) SCC 510 (Om Prakash Marwaha (dead) throughLRs. And others ..vs.. Jagdis Lal Marwaha (dead) through LRs.) forthe same principle. 18.The learned counsel appearing for the appellants /plaintiffs would also submit that even otherwise, the wrongcognizance taken by the trial court and subsequently, by the firstappellate court and thereafter, by this Court is construed to be amistake, whether the plaintiffs have got a right to recoverpossession of the property from the defendant ought to have beenconsidered by this Court. The trial court and the first appellatecourt have rendered different judgments, but the first appellatecourt has not meted out the point on which the trial court had cometo a conclusion in decreeing the suit. He would further submitthat it had simply referred to the direction of this Court and hadreversed the finding of the trial court on the said point. 19.The learned counsel appearing for the appellants /plaintiffs would also submit that the defendant was having thehouse property adjacent to the property of the plaintiffs and he isalso in possession of 3 feet breadth and 24 feet length in theproperty of the plaintiffs and in which, he is seeking for thebenefit of The Tamil Nadu Occupants of Kudiyiruppu (Conferment ofOwnership) Act, 1971, which is not eligible to the defendant sincehe has already got a residential property adjacent to the suitproperty put up in Pattu Iyer's land. 20.The learned counsel appearing for the appellants /plaintiffs would further submit that if for any reason, this Courtfinds that the entire proceedings before the trial court, firstappellate court and this Court are not 'non-est' in the eye of law,the decision reached by the first appellate court is very muchagainst the provisions of law in reversing the well consideredjudgment of the trial court. He would, therefore, request theCourt to set aside the judgment and decree passed by the firstappellate court and to pass a similar judgment as was rendered inS.A.No.340 of 1978 authorising the Execution Court to go into thefacts once again or in the event, these proceedings are sustainableto reverse the judgment of the first appellate court, to restorethe judgment and decree passed by the trial court and thus, the https://hcservices.ecourts.gov.in/hcservices/ Second Appeal may be allowed.21.The learned counsel for the respondents / defendantwould submit in his argument that the argument advanced by thelearned counsel for the plaintiffs that the proceedings before thetrial court, first appellate court and before this Court in CivilMiscellaneous Appeal would be a 'non-est' in the eye of law, cannotbe sustained and if it is held so, the present Second Appeal whichhas arisen out of the First Appeal would also become 'non-est' inthe eye of law, despite the cognizance taken by the trial court wasa sheer a mistake. The further argument advanced by the learnedcounsel for the plaintiffs that no man shall be prejudiced by theact of the Court is a well settled principle laid down by variouspronouncements and the said doctrine is also applicable to thedefendant and merely because the mistaken cognizance has been takenwithout understanding the order passed by this Court in S.A.No.340of 1978 should not prejudice the right of the defendant. 22.The learned counsel for the respondents / defendantwould further submit that admittedly there was no executionproceedings pending before the Execution Court and therefore, thedirection issued to the Execution Court was assumed by the trialcourt and the trial was commenced once again as if, it was remandedto the trial court. He would further submit that the plaintiffscannot now turn round and say that the mistake was committed by thetrial court in taking trial of the matter as if it was remanded tothe said Court instead of Execution Court, despite he hasparticipated in the whole trial. He would further submit that theplaintiffs did participate in the first appeal proceedings inwhich, remand order was passed once again to the trial courtagainst which, the plaintiffs alone preferred CMA before this Courtand got an order of a direction to re-hear the matter by the firstappellate court. 23.The learned counsel for the respondents / defendantwould also submit that even now the plaintiffs alone have takenthe matter before this Court in the Second Appeal despite thisSecond Appeal is emanating from the wrong congnizance of the trialcourt mistaking the order passed by this Court in S.A.No.340 of1978. He would further submit that the trial court was directedby this Court in S.A.No.340 of 1978 to decide the factual issues asto whether shop was run from a particular date or not. He wouldalso submit that since the trial court did not appreciate theCommissioner's report as directed by this Court, the firstappellate court had interfered with the findings of the trial courtand accordingly, adjudicated the matter. He would also submit thatthis Court had already come to a conclusion that the defendant wasentitled to The Tamil Nadu Occupants of Kudiyiruppu (Conferment ofOwnership) Act, 1971, and therefore, there is no need for the trial https://hcservices.ecourts.gov.in/hcservices/ court to go about the applicability of the Act to the defendant.He would therefore, submit that the first appellate court was rightin coming to the conclusion that the benefits of the said Act wasapplicable to the defendant and the findings of the Commissionerwas only in favour of the defendant and the first appellate courthad rightly reversed the judgment of the trial court. He wouldfurther submit that the proceedings, right from the trial court tothe level of this Court conducted after the pronouncement of thejudgment in S.A.No.340 of 1978 by this Court cannot be declared as'per incurium' as argued by the learned counsel for the plaintiffs.He would therefore, request that there is no reason for interferingwith the reversal judgment of the first appellate court andtherefore, the said judgment of the first appellate court may beconfirmed and the Second Appeal preferred by the plaintiffs may bedismissed.24.I have given anxious thoughts to the argumentsadvanced on either side.25.The suit was originally filed by the plaintiffsagainst the defendant for the following reliefs:-"a)to direct the defendant to deliverpossession of the suit property, afterremoving the superstructure put up by him;b)to pass a decree for a sum of Rs. ... beingthe past profits claimed and to award futureprofits claimed and to award future profitstill delivery of possession;c)to award the costs of the suit."26.The admitted facts are that the first plaintiff'shusband and plaintiffs 2 to 6's father, namely, Krishnamoorthy Iyerwas originally the owner of the property and he had permitted thedefendant to put up a thatched shed and reside in the suit propertyon tenancy for the payment of Rs.2.50p per month, which wassubsequently raised to Rs.3/- per month and the defendant had putup a hut in one Pattu Iyer's property located at the centre of theplaintiffs' property and also for 3 feet length in the propertyleased to the defendant.27.The plaintiffs want the suit property for their useand therefore, they have terminated the tenancy on 02.09.1970 andsought for delivery of possession of the suit property and for pastprofits and future profits. The said suit was originally decreedon 30.06.1975. However, the appeal preferred by the defendant inA.S.No.111 of 1975 was allowed on 13.12.1976 and thus, the suit wasdismissed with costs. The aggrieved plaintiffs preferred Second https://hcservices.ecourts.gov.in/hcservices/ Appeal in S.A.No.340 of 1978 before this Court and this Court on25.02.1981 had passed an order of remand with certain findings.The relevant passage regarding the findings in the said judgmentwould be as follows:-"...... I am of the view thatinstead of relegating the matter to theAuthorised Officer to find out as to whatexactly is the portion in which therespondent / defendant is residing under theTamil Nadu Occupants of Kudiyiruppu Act, it isbetter that the matter be left to the ExecutingCourt. Therefore, there will be a decree infavour of the plaintiffs / appellants, subjectto the following :- In the Executing Court, if it isfound that in the suit property therespondent has put up a betel nut shopand is residing there for the purpose ofrunning the shop, from that portion, heis liable to be ejected. On thecontrary, if the suit property isactually used for residential purpose,there will be no ejectment of therespondent/defendant. It requires to beconsidered by the Executing Court whetheron the date when the Act came into forceand subsequently thereafter the defendantwas in occupation of any portion for thepurpose of running the shop. The reasonwhy I say so is that in view of thisorder if the respondent / defendantceases to run the shop, that cannotprevail with the Executing Court. Thetest to determine is whether the shop wasrun or not during the period when Act 40of 1971 came into force until this dateviz., 25.02.1981. It will be open tothe Executing Court to appoint aCommissioner for this purpose and allowthe parties to adduce evidence, oral ordocumentary, which they may deem fit.The second appeal is allowed only tothe limited extent and remanded to theExecuting Court and the decree will be in theterms as stated above. There will be no orderas to costs." https://hcservices.ecourts.gov.in/hcservices/

28.On a careful perusal of the aforesaid judgment ofthis Court made in S.A.No.340 of 1978 dated 25.02.1981, I could seethat this Court had come to a conclusion that the finding of thethen first appellate court that the defendant was entitled to theThe Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership)Act, 1971 would apply to the defendant, has to be tested by theExecuting Court instead of Authorised Officer as designated in thesaid Act. According to the said direction, the Executing Court hasto execute the decree subject to a finding to be reached by itafter appointing a Commissioner to find out the nature ofpossession of the defendant in the suit property as to whether hehas put up a betel nut shop and he is residing and if the residingis for the purpose of running the shop, the execution can becarried out and in case if the defendant is using the portion onlyfor residing purpose, then there would be no ejectment. TheExecution Court was also directed to find whether on the date ofenforcement of this Act in the year 1971 and subsequentlythereafter, the defendant was in occupation of any portion for thepurpose of running the shop and whether the shop was run or notduring the period when the Act came into force until the date25.02.1981.29.The tenor of the order was that the suit was decreedand a conditional decree was passed subject to certain directionsissued to the Execution Court instead of Authorised Officer. It isvery clear that the Execution Court alone has to find it out thesaid fact during the execution of the decree. But, it was not doneand it was once again placed before the original side of the saidCourt and the trial was commenced as if it was remanded to thetrial court. Judgment was also pronounced by the trial court.Against the judgment passed by the trial court, first appeal wasalso preferred. But the first appellate Court remanded the matterto the trial court. Against which, the plaintiffs themselvespreferred CMA before this Court and certain directions have alsobeen issued for disposal of the appeal by the first appellate courtitself in the order passed by this Court. Therefore, the directionissued to the Execution Court was not exercised by the ExecutionCourt, but the trial court had assumed the said jurisdiction forfinding the said facts as directed by this Court in S.A.No.340 of1978.30.According to the judgment of Hon'ble Apex Courtreported in AIR 1954 SC 340 (1) (Kiran Singh and others ..vs..Chaman Paswan and others), the lack of jurisdiction would vitiatethe entire findings. The relevant passage would run as follows:-"6..... It is a fundamentalprinciple well established that a decree passedby a Court without jurisdiction is a nullity, https://hcservices.ecourts.gov.in/hcservices/ and that its invalidity could be set upwhenever and wherever it is sought to beenforced or relied upon, even at the stage ofexecution and even in collateral proceedings. Adefect of jurisdiction, whether it is pecuniaryor territorial, or whether it is in respect ofthe subject-matter of the action, strikes atthe very authority of the Court to pass anydecree, and such a defect cannot be cured evenby consent of parties. ..... "31.However, it has been challenged by the learnedcounsel for the respondents / defendant that the plaintiffs havealso acquiesced to the procedure adopted by the trial court takingthe case to its file instead of sending it to Execution Court andeven the plaintiffs have participated in the appeal preferred bythe defendant and the plaintiffs alone preferred CMA before thisCourt in CMA.No.329 of 1984 challenging the said order of remandmade by the first appellate court at an earlier occasion. In thesaid circumstances, the learned counsel for the respondents /defendant would submit that it could not be considered as lack ofjurisdiction, but only an error of jurisdiction. He would alsosubmit that both the Execution side as well as Original side wereconducted only by the same or similar Presiding Officer andtherefore, there is no question of any different jurisdiction orlack of jurisdiction.32.According to the submission of both, the Court hadcommitted a mistake and no party shall be prejudiced by an act ofthe Court. For that, the learned counsel for the appellants /plaintiffs referred to the following judgments, viz., (1)AIR 1988 SC 1531 (1) (A.R.Antulay ..vs.. R.S.Nayak and another)(2)AIR 1992 Orissa 261 (Krishna ChandraPallai ..vs.. Union of India and another)(3)AIR 1996 SC 1819 (1) (UrbanImprovement Trust, Jodhpur ..vs.. GokulNarain and another)The relevant passage in AIR 1988 SC 1531 (1) (A.R.Antulay ..vs..R.S.Nayak and another) would be as follows:-83...... No man is above the law,but at the same time reiterate and declare thatno man can be denied his rights under theConstitution and the laws. He has a right to bedealt with in accordance with the law and notin derogation of it. This Court? in its anxietyto facilitate the parties to have a speedytrial gave directions on 16th February, 1984 asmentioned hereinbefore without conscious https://hcservices.ecourts.gov.in/hcservices/ awareness of the exclusive jurisdiction of theSpecial Courts under the 1952 Act and thatbeing the only procedure established by law,there can be no deviation from the terms ofArticle 21 of the Constitution of India. Thatis the only procedure under which it shouldhave been guided. By reason of giving thedirections on 16th February, 1984 this Courthad also unintentionally caused the appellantthe denial of rights under Article 14 of theConstitution by denying him the equalprotection of law by being singled out for aspecial procedure not provided for by law. Whenthese factors are brought to the notice of thisCourt, even if there are any technicalitiesthis Court should not feel shackled and declineto rectify that injustice or other vise theinjustice noticed will remain forever a blot onjustice. It has been said long time ago that"Actus Curiae Neminem Gravabit"-an act of theCourt shall prejudice no man. This maxim isfounded upon justice and good sense and affordsa safe and certain guide for the administrationof the law. "33.The relevant passage in AIR 1992 Orissa 261 (KrishnaChandra Pallai ..vs.. Union of India and another) would be asfollows:-"10. As to the decision in Parma Nanda'scase (AIR 1989 SC 1185) being per incuriam asit has not taken note of the fact thataccording to Bhagatram's case (AIR 1983 SC 454)disproportionate sentence violates. Article 14of the Constitution, let us first see what ismeant by the aforesaid expression. In thisconnection, we may first refer to theConstitution Bench decision of seven Judges inA.R. Antulay v. R.S. Naik, (1988) 2 SCC 602 :(AIR 1988 SC 1531), in paragraph 42 of which itwas stated that per incuriam are thosedecisions given in ignorance or forgetfulnessof some inconsistent statutory provision or ofsome authority binding on the court concerned,so that in such cases some part of the decisionor some step of the reasoning on which it isbased is found on that account to bedemonstratively wrong. https://hcservices.ecourts.gov.in/hcservices/

11. The expression "per incuriam" wasexplained in paragraph 11 of MunicipalCorporation of Delhi v. Gurnam Kaur, (1989) 1SCC 101: (AIR 1989 SC 38), by stating that adecision should be treated as given perincuriam when it is given in ignorance in termsof a statute, or of a rule having the force ofa statute.12. In paragraph 40 of Punjab LandDevelopment and Reclamation Corporation Ltd. v.Presiding Officer, Labour Court,(1990) 3 SCC682, it was stated that the latin expression inquestion means "through inadvertence". In thatparagraph it was further stated that a decisioncan be said generally to be given per incuriamwhen a Court has acted in ignorance of aprevious decision of its own, or when a HighCourt has acted in ignorance of a decision ofthe Supreme Court.13. Finally, we may note what was statedin paragraph 40 of State of U.P. v. Synthetics& Chemicals Ltd., (1991) 4 SCC 139, whereinSahay, J. stated that in practice, per incuriamappears to mean per ignoratium. It was thenstated that this principle was developed inrelaxation of the rule of stare decislsinasmuch as "quotable in law" is avoided andignored if it is rendered 'in ignoratium of astatute or other binding authority'. "34.The relevant passage in AIR 1996 SC 1819 (1) (UrbanImprovement Trust, Jodhpur ..vs.. Gokul Narain and another) wouldbe as follows:-"16..... As stated earlier, if thedecree strikes at the jurisdiction of the courtor the court lacks jurisdiction it strikes atthe very root of the authority to pass theorder or the decree. As seen, the Amendment Act68 of 1984 has no application to the landsacquired under the Act. It was amended onlyw.e.f. August 1, 1987 and it was madeapplicable only to the pending proceedings. Itwould, therefore, be clear that the orderawarding additional benefits is clearly withoutjurisdiction and thereby it is a nullity. Its https://hcservices.ecourts.gov.in/hcservices/ nullity can be assailed at any stage includingat the execution or in a collateral proceedingssince it strikes at the very jurisdiction andauthority of the court."35.No doubt, it is true that no man shall be prejudicedby the act of Court. The celebrated maxim is "Actus curiae neminemgravabit". It has been very clearly dealt with in the aforesaidjudgment. The said maxim is applicable for both the parties. Incase, the entire proceedings are struck down as 'non-est' as perthe judgment of the Hon'ble Apex Court reported in AIR 1954 SC 340(1) (Kiran Singh and others ..vs.. Chaman Paswan and others) andthe parties are once again directed to go before the ExecutionCourt and to adduce evidence from the beginning, it would certainlyprejudice both the parties. The fact finding was done by the trialcourt. This Court had also disposed the CMA preferred against theremand order passed by the first appellate court. Both the partieshave acquiesced to the proceedings initiated by the trial court andalso the first appeal filed before the first appellate court andthe CMA preferred before this Court on an inadvertent mistakecommitted by the Court. In the said circumstances, can thejudgment and decree passed by the above three Courts can be held as'non-est' in the eye of law as per the judgment of the Hon'ble ApexCourt is the question. 36.It has to be borne in mind that the facts andcircumstances of the case should have been considered beforeholding any proceedings 'non-est' in the eye of law or as 'perincurium'. The judgment of the Hon'ble Apex Court reported in1999 (2) LW 547 (Sri Budhia Swain and others ..vs.. Gopinath Deb.And others) is guiding us to reach a conclusion in this point. Therelevant passage in paragraph No.8 and 9 would run as follows:-"8.In our opinion a tribunal or acourt may recall an order earlier made by it if(i) the proceedings culminating into an ordersuffer from the inherent lack of jurisdictionand such lack of jurisdiction is patent, (ii)there exists fraud or collusion in obtainingthe judgment, (iii) there has been a mistake ofthe court prejudicing a party or (iv) ajudgment was rendered in ignorance of the factthat a necessary party had not been served atall or had died and the estate was notrepresented. The power to recall a judgmentwill not be exercised when the ground for re-opening the proceedings or vacating thejudgment was available to be pleaded in theoriginal action but was not done or where aproper remedy in some other proceeding such as https://hcservices.ecourts.gov.in/hcservices/ by way of appeal or revision was available butwas not availed. The right to seek vacation ofa judgment may be lost by waiver, estoppel oracquiescence. 9.A distinction has to be drawnbetween lack of jurisdiction and a mere errorin exercise of jurisdiction. The former strikesat the very root of the exercise and want ofjurisdiction may vitiate the proceedingsrendering them and the orders passed therein anullity. A mere error in exercise ofjurisdiction does not vitiate the legality andvalidity of the proceedings and the orderpassed thereon unless set aside in the mannerknown to law by laying a challenge subject tothe law of limitation. In Hira Lal Patni Vs.Sri Kali Nath AIR 1962 SC 199, it was held :-"....... The validity of a decree can bechallenged in execution proceedings onlyon the ground that the court whichpassed the decree was lacking ininherent jurisdiction in the sense thatit could not have seisin of the casebecause the subject matter was whollyforeign to its jurisdiction or that thedefendant was dead at the time the suithad been instituted or decree passed, orsome such other ground which could havethe effect of rendering the courtentirely lacking in jurisdiction inrespect of the subject matter of thesuit or over the parties to it." 37.According to the aforesaid judgment, the Court mayrecall the order earlier made by it when there has been a mistakeof the Court prejudicing a party. This Court has not committed anymistake, but the trial court has committed a mistake in takingcognizance of the case as per the order passed by this Court inS.A.No.340 of 1978 dated 25.02.1981. However, the dictum is 'noman shall be prejudiced by an act of the Court'. This Court hasalso disposed the CMA. As already stated, there is a specificorder that the Execution Court has to find out the fact whileexecuting the decree. The suit was filed in the year 1973. Onthree occasions, the matter was remanded and adjudicated. If thisCourt is once again ordering remand to stick on its original orderin S.A.No.340 of 1978 dated 25.02.1981, it would certainly affectboth the parties and their right. Therefore, the order passed bythis Court directing the Execution Court to go into the matter may https://hcservices.ecourts.gov.in/hcservices/ be modified since the rights of the parties should not beprejudiced. 38.It is also laid down in the aforesaid judgment thatthe lack of jurisdiction would vitiate the entire proceedings,whereas the error in the exercise of jurisdiction could becorrected by the Court. When we apply the principles laid down asto the rights of parties should not be prejudiced and also that theparties having already participated in the proceedings throughout,this Court is of the opinion that the entire proceedings held bythe trial court, first appellate court and this Court in CMA couldnot be held as invalid or illegal proceedings or to be consideredas 'non-est' in the eye of law.39.In the said circumstances, what would be the remedyfor the parties in this Second Appeal has to be decided. In anearlier occasion, while disposing the Second Appeal, this Court hadpassed an order directing the Executing Court with variousinstructions to follow and to execute the decree. As per the saiddirection, the Commissioner was appointed and he has also filed areport. As per his report, the defendant had sold the property on10.07.1979 during the pendency of the suit to a third party and onthe date of promulgation of the Act, the defendant was inpossession of 3 feet x 24 feet in the suit property along withother portion, put up in the land belonging to Pattu Iyer.Similarly, the Advocate Commissioner has also referred that thedefendant was residing in the property and he had installed a bunkshop incidentally and he was not living there for conducting thebunk shop. 40.The clear direction issued by this Court was that incase, the defendant was having the bunk shop in the portion of thesuit property belonging to the plaintiff and is residing for thepurpose of running the shop, then ejectment has to be ordered bythe Executing Court. However, the first appellate court had cometo the conclusion that the plaintiff was in possession of theportion of the suit property as per the definition of 'KudiyiruppuAct' and therefore, he is entitled for the said premises. Thefirst appellate court did not understand the order passed by thisCourt in S.A.No.340 of 1978 that except the portion referred in 3feet x 24 feet, wherein the house has been put up by the defendant,the other portions of the suit property were already ordered to beejected. But it was not considered by the first appellate court.The first appellate court has dismissed the entire claim of theplaintiffs in respect of the suit property. 41.Moreover, the first appellate court did not considerthe point raised by the trial court regarding the applicability ofthe Kudiyiruppu Act to the defendant as per Section 3(3) of the https://hcservices.ecourts.gov.in/hcservices/ said Act. For better appreciation, Section 3(3) of The Tamil NaduOccupants of Kudiyiruppu (Conferment of Ownership) Act, 1971, hasto be extracted, which would run as follows:-"Occupant of Kudiyiruppu to becomeowner:3 (1) Save as otherwise provided inthis Act, any agriculturalist or agriculturallabourer who was occupying any kudiyiruppu onthe 1st day of April, 1990, either as tenant oras licensee shall, with effect from the date ofthe commencement of this Act, be the owner ofsuch kudiyiruppu and such kudiyiruppu shallvest in him absolutely free from allencumbrances.(2) Where, in the case of anoccupant of kudiyiruppu, in whom suchkudiyiruppu vests under sub-section (1) thesuprestructure belongs to any person other thansuch occupant, such superstructure shall alsowith effect from the date of the commencementof this Act, vest in such occupant absolutelyfree from all encumbrances.(3)Nothing in sub-section (1) shallbe deemed to confer the right of ownership ofkudiyiruppu on any agriculturalist oragricultural labourer if he already owns adwelling house or hut or a house – site, withina distance of one kilometre from thekudiyiruppu referred to in sub-section (1).Provided that the site on which thedwelling house or hut is erected or the housesite concerned is more than three cents inextent.Of course, the said point has not been argued before this Court atan earlier point of time and was referred by this Court to theconsideration of the Execution Court in its direction. The saidpoint is a legal point and it can be raised at any time so as tofind the correct position of law in order to render justice.Therefore, the finding of the first appellate court reached againstthe judgment and decree passed by the trial court as well as thefinding regarding the applicability of the Act are not inaccordance with law. Therefore, it has become necessary for thisCourt to set aside the judgment and decree passed by the firstappellate court. https://hcservices.ecourts.gov.in/hcservices/

42.While considering the overall facts andcircumstances of this case, I could see that the additionalsubstantial questions of law suggested by the respondents cannot besustained. The first question law framed in this appeal, eventhough, not helpful to the appellants, the other questions of laware necessarily to be decided only in favour of the appellant. 43.For the foregoing discussions, I am of theconsidered view that the point referred to "Execution Court" eventhough not taken by the Execution Court, but was taken by the trialcourt and it was found by the trial court in favour of theplaintiffs and such wrong congnizance taken by the trial court wasfound as 'error in jurisdiction' and it was ratified by the partiesthemselves by participating in the proceedings and such mistake ofthe Court shall not prejudice any of the parties and therefore,those proceedings cannot be set aside as 'non-est' in the eye oflaw. Similarly, the finding of the trial court as to theinapplicability of the benefits of the Kudiyiruppu Act to thedefendant under Section 3(3) of the said Act was also a legal pointand therefore, it cannot be found as exceeding the direction andthe first appellate court having failed to reach a finding againstthe said finding of the trial court was not correct in reversingthe judgment. Therefore, it has become necessary for this Court tointerfere and set aside the judgment and decree passed by the firstappellate court and to pass an order of ejectment as sought for bythe plaintiffs in the suit as prayed for.44.In fine, the Second Appeal is allowed. Thejudgment and decree of the first appellate court are set aside.The suit filed by the plaintiffs before the trial court is, thus,decreed as prayed for with costs. Time for vacating the premisesfor the respondents / defendant is four months. No costs in thisappeal. Undertaking Affidavit shall be filed in three weeks fromtoday.mraSd/-Asst. Registrar(CS-III)//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal Subordinate Judge, Mayiladuthurai.2.The District Munsif, Mayiladuthurai.+ 1 cc to Mr. M. Balasubramanian, Advocate SR No.58418+ 2 ccs to Mr. H. Mohammed Rafi, Advocate SR No.58991, 58583JRG(CO)SR/26.11.2012. Judgment inSecond Appeal No.1227 of 1999