Decided on August 28,1953

PERA NAIDU. Appellant


- (1.) This is a petition to revise the order of the Subordinate Judge, Madurai, dismissing an application preferred by the petitioners under Order 21, Rule 100, C.P.C. as incompetent. The properties which are the subject matter of these proceedings are lands which were purchased by the second respondent Ramaswami Naicker, at a sale held by the Madurai-Ramnad Central Co-operative Society. The first respondent Soundaravalu Ammal filed O.S. No. 109 of 1947, Subordinate Judge's Court, Madurai for recovery of these and other properties on the ground that they formed part of the Valayapatti zamin and that she became entitled to them as reversioner. Ramaswami Naicker was impleaded as the 76th defendant in that suit and though he filed a written statement raising several pleas, he eventually abandoned the contest and an ex parte decree was passed against him. In execution of that decree, the first respondent obtained possession of the lands. The petitioners thereupon filed E.A. No. 443 of 1949 under Or. 21, Rule 100, C.P.C. and as the point for decision in this revision is whether this petition as framed is maintainable, it is necessary to set out the allegations contained therein. The averments in the petition are that the two petitioners are brothers of the second respondent that they are all members of a joint undivided Hindu family; that the lands in question were purchased with joint family funds, though the sale deed itself was taken in the name of the second respondent, that accordingly the petitioners were entitled to two-third share therein, that though the second respondent was the eldest member, he was not the manager of the joint family and that in consequence the decree passed against him in O. S-No. 109 of 1947 and the execution proceedings taken thereunder were not binding on them. The petition then alleges that the first respondent "managed to get an endorsement on the delivery warrant as if the properties in the schedule had been delivered to her; there has been no real delivery and the delivery if any cannot bind the petitioners who are not parties to the suit" and that "though actual delivery has not been made and though the delivery cannot affect the rights of the petitioners, the petitioners apprehend that the return of delivery or the warrant of delivery might be improperly used for the purpose of ousting the petitioners from possession of the properties." The prayer in the petition is that "this Honourable court should be pleased to hold, if it is of opinion that there has been actual and effective delivery of the properties to the first respondent, that the delivery cannot affect the rights of the petitioners to possession of the schedule properties, order re-delivery of the same to the petitioners and direct the first respondent to enforce her rights if any against the second respondent by means of a partition suit." The Subordinate Judge dismissed the application on the preliminary ground that as the petitioners contended that there had in fact been no dispossession, it was not maintainable under Order 21, Rule 100.
(2.) The petitioners question the correctness of this order. They contend that it proceeds on a misapprehension of the true scope of the petition that while the stand taken by the petitioners was that mere was no dispossession they also prayed for an appropriate relief if it should turn out that in fact there had been real delivery; that what was claimed in the petition was, therefore, relief in the alternative and that that was in law competent; and that the order of the Subordinate Judge dismissing the petition without any enquiry is in consequence illegal. In support of this contention the decision in --Jagannath Bijraj v. Khwaja Fasiuddin', AIR 193d Nag 442 at p. 443 (A) was relied on. There, the facts were that in execution of a decree for possession against judgment-debtor who owned 7/72 share in an estate, the decree-holder took delivery of the whole of certain plots. The co-owners of the judgment-debtor filed an application under Order 21, Rule 100, wherein they alleged that in spite of delivery they continued to be in actual possession of the lands. They also prayed in the alternative that if it was found that there was dispossession, they might be restored to possession. The District Judge held that they were in actual possession and that the decree-holder had obtained only symbolical delivery and on those findings, passed an order for joint possession of the petitioners along with the decree-holder. The latter took up the matter in revision to the High Court and contended that as the applicants had admitted that their possession had not been disturbed, the petition under Order 21, Rule 100 was incompetent. In rejecting this contention Niyogi J. observed: "When a party is in doubt as to his legal right to apply under Order 21, Rule 100, C.P.C., he can well invite the court to pronounce its opinion and his competency to apply would depend upon the nature of the court's opinion. When a party conies to court with an alternative case, the court cannot non-suit him by refusing to consider his alternative case which gives him in reality a right of action." Mr. K. Vaideeswaran, the learned advocate for the contesting respondent, disputes the correct ness of these observations. He contends that in an application under Order 21, Rule 100 the only question that could be investigated is whether there had been dispossession; that the possession contemplated in the rule is actual possession; that as the petitioners were never in actual possession, there could be no question of dispossession under that rule; that further as the petitioners maintained that their possession was not in fact disturbed they were not entitled to present an application under Order 21, Rule 100 and that a question of alternative relief could not arise in proceedings under that rule.
(3.) It is necessary at the outset to find out what the true position is on the facts as alleged in E.A. No. 443 of 1949, which facts must of course be assumed to be true at this stage as the application has been dismissed on demurrer. According to the petition, the lands mentioned in the application belonged to all the three brothers as joint family property. There is no allegation that the petitioners were either in actual possession thereof along with the second respondent or were in enjoyment of profits realised therefrom. Indeed it does not appear from the petition that the applicants are in receipt of any income as members of joint family. Even in the prayer what is claim ed is that the delivery could not affect "the rights of the petitioners to possession of the schedule properties". It is clear from the above that tile petitioners did not set up a case of actual possession of the lands; they only alleged that they were in legal possession as members of a joint family and their complaint was that the delivery proceedings were an interference with that possession.;

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