Judgment :- 1. This Second Appeal is preferred from the Judgment and decree of the learned Subordinate Judge, Kumbakonam made in A.S. No. 61 of 1989, dated 9.2.1990 confirming the judgment and decree of the learned District Munsif, Kumbakonam made in O.S. No. 1 of 1985, dated 31.8.1989. 2. The respondent herein filed a suit for recovery of possession of the suit mentioned immovable properties with the following averments. The plaintiff was the lessee of R.S. No. 17/1, Nanja 1.01 cents in Thathuvancheri Village, which belonged to the Tirupanandal Kasi Mutt. The plaintiff usufructuary mortgaged the suit property to the defendant for Rs. 600/- with a condition that whenever the plaintiff pays the principal to the defendant, the defendant should deliver the possession of the properties. The defendant had also agreed to pay the rent to the plaintiff and the plaintiff will pay the same to the Tirupanandal Kasi Mutt. But the defendant did not pay the amount. The plaintiff had to pay the amount to the Tirupanandal Kasi Mutt. So, for the loss sustained by the plaintiff, the plaintiff filed a suit in O.S. No. 116/76 and the suit was decreed. The defendant filed a suit for the recovery of amount paid by her in O.S. No. 496 of 1973. To the amount, she filed an Execution petition in E.P. No. 214 of 1982 in O.S. No. 496 of 1973 and the plaintiff filed an Execution petition in O.S. No 116 of 1976 in E.P. No. 62/82. The amount payable by the defendant was adjusted towards the amount payable to the plaintiff. So the amount paid by the defendant for the enjoyment of the property has been discharged fully. As per the agreement, the defendant should automatically redeliver possession of the property. The defendant was not entitled to continue in possession of the suit property. Hence, the plaintiff filed a suit for recovery of possession of the suit mentioned immovable property. 3. The defendant contested the suit by filing a written statement with the following allegations: There was no usufructuary mortgage as alleged by the plaintiff. The defendant was the cultivating tenant of the lands R.S. No. 17/1, Nanja 1-01 cents, R.S. No. 34 Nanja 0-20 cents out of 1.10 cents and R.S. No. 25/2, Nanja 0-13 cents, situated in Thathuvancheri village, Thiruvidaimaruthur Taluk. The defendant was the cultivating tenant of the lands R.S. No. 17/1, Nanja 1-01 cents, R.S. No. 34 Nanja 0-20 cents out of 1.10 cents and R.S. No. 25/2, Nanja 0-13 cents, situated in Thathuvancheri village, Thiruvidaimaruthur Taluk. The defendant has been recorded as the cultivating tenant of the above lands by the Additional Record Officer, Kumbakonam in Form V 85/75 by order dated 15.7.1977. The defendant was not in possession of 20 cents in R.S. No. 34 out of 1.10 cents. The said 20 cents was in possession of Kaliyaperumal, husband of the plaintiff. For recovery of the above 20 cents, the defendant filed O.S. No. 520/1982 against the husband of the plaintiff for possession and post profits and this suit was dismissed and the defendant was taking the matter on appeal. Because the suit filed by the defendant was dismissed, the defendant in that suit has set up his wife the plaintiff herein to file the above suit for possession. The plaintiff was not entitled to recover possession of the suit land and the suit was clearly barred under the provision of Tamil Nadu Act 25 of 1955. The plaintiff had no right to claim possession. The reference to O.S. No. 116 of 1976 was absolutely irrelevant. That suit was nothing to do with the claim made in the above suit. The defendant had paid the rent due to the Mutt every year and the Mutt authorities were issuing the receipts in the name of Nallamuthu Ammal, through the defendant. The suit in O.S. No. 496 of 1973 was on a promissory note. The suit was decreed. The defendant filed an execution petition and the plaintiff also filed E.P. in O.S. No. 116 of 1976. To avoid future litigation, parties agreed for adjustment and both the E.Ps were closed. But there was no agreement to redeliver possession automatically. The plaintiff was not entitled to claim possession of the suit property. The defendant was entitled to continue in possession of the suit lands till she was duly evicted in accordance with law. No cause of action has arisen on any of the dates. The suit was clearly barred under the provisions of Tamil Nadu Act 25 of 1955. The plaintiff was not entitled to any relief as prayed for. She was not entitled to possession, since the defendant was a cultivating tenant. No cause of action has arisen on any of the dates. The suit was clearly barred under the provisions of Tamil Nadu Act 25 of 1955. The plaintiff was not entitled to any relief as prayed for. She was not entitled to possession, since the defendant was a cultivating tenant. She could not claim future profits since the defendant was not in unlawful possession. Hence, the suit has got to be dismissed. 4. The trial Court, on the above pleadings, framed necessary issues, tried the suit and decreed the same as prayed for. On appeal by the aggrieved defendant, the judgment of the trial Court was confirmed. On dismissal of the appeal, the defendant has brought forth this Second Appeal. 5. At the time of admission, the following substantial questions of law were formulated for consideration in this Second Appeal. 1. When the competent authority under Tamil Nadu Act 10/69 has decided the defendant is a cultivating tenant and recorded him as a cultivating tenant in the record of tenancy whether the Courts below are right in holding that the civil Court has jurisdiction to determine the question whether the defendant is a cultivating tenant or not overlooking Section 16A of the Tamil Nadu Act 10/69 and Section 6 of the Tamil Nadu Act 25/55 and the Full Bench decision reported in 1979 T.L.N.J. 515 AIR 1980 Madras 180? 2. Is not the present suit barred by the principle of res judicata in view of the decisions of the Revenue Court marked as Ex.B6 and decision of the civil Court marked as Ex.B-3 in respect of the same relief on the same subject matter between the same parties? 6. The defendant, whose defence was rejected by both the Courts in a suit filed by the respondent herein for recovery of possession, has brought forth this second appeal. The learned counsel for the appellant inter-alia would submit that the appellant herein was a cultivating tenant under Tamil Nadu Act 10/69; that both the Courts have erred in holding that though a person was recorded as a cultivating tenant under Tamil Nadu Act 10/69, the civil Court has jurisdiction to determine whether that particular person was a cultivating tenant or not overlooking Section 16A of the Tamil Nadu Act 10/69 and Section 6 of the Tamil Nadu Act 25 of 1955; that the Full Bench of this Court in 1979 TLNJP. 516, and in AIR 1980 Madras P. 180 has categorically held that a civil Court has no jurisdiction in going into the question of whether a particular person was a cultivating tenant or not, once that person has already been recorded as a cultivating tenant prior to the institution of the suit; that in the instant case, the defendant was recorded as a cultivating tenant on 15.7.77 and the instant suit was instituted 7 years later, i.e. on 28.4.1984; that both the Courts were in error in holding that the order of the Record of Tenancy Officer ordering the defendant as a cultivating tenant was not final; that the lower Courts had overlooked that only the Revenue Court constituted under Tamil Nadu Act 25/55 alone had jurisdiction to evict a cultivating tenant and the civil Court has no jurisdiction to pass a decree for possession once a person has been recorded as a cultivating tenant; that the entire reasoning of the learned Subordinate Judge in holding that it was not necessary for a landlord to file a petition for eviction before the Revenue Court constituted under Tamil Nadu Act 25/1955; that the respondent/plaintiff herself had filed an eviction petition before the Revenue Court, Tanjore for evicting the defendant from the suit property accepting the legal position that only the Revenue Court constituted under Tamil Nadu Act 25/55 only has jurisdiction to evict the defendant the said petition was dismissed by the Revenue Court by its order, dated 14.8.1980 marked as Ex.B.6; that the relief of possession asked for by the predecessor in title of the plaintiff against the defendant in O.S. No. 116/76, District Munsif Court, Kumbakonam and the relief of eviction asked for by the plaintiff in the execution petition No. 103/80 Revenue Court, Tanjore having been rejected by the said Court and having become final and the instant suit for the same relief between the same parties in respect of the same subject matter was barred by res judicata under Section 11 of C.P.C., that without any basis, the lower Court have held that Ex.B.5 partition would/have established that possession was handed over to the defendant only as compensation for the interest due from the mortgagee overlooking the fact that Ex.B.5 was only a petition filed by the grand mother of the respondent/plaintiff, her predecessor in title alleging the case of othi ( sic ) between herself and the defendant and the same cannot be treated as conclusive proof; that the lower Courts were in error in holding that Exs B.4 to B.6 would establish that there was no relationship of landlord and tenant between predecessor in title of the plaintiff and the defendant; that it is pertinent to note that Exs.B.4 to B.6 proceedings before the Record of Tenancy Officer would clearly establish that the plaintiff was originally a sub-lessee under the predecessor in title of the plaintiff; that the lower Court were in error in holding that if there were evidence to the contrary to the order of the Record of Tenancy Officer, the said order could not be said to be final; that in this regard, the lower Courts should have seen that the civil Court cannot act as an appellate authority against the order of the Record of Tenancy Officer and only the Appellate Authority constituted under the Act 10/1969 can have jurisdiction as an appellate Forum; that the entire reasoning of the lower Court was without any basis, but were erroneous; that the written statement filed by the predecessor in title of the plaintiff in O.S. No. 496/73 District Munsif Court, Kumbakonam would clearly establish that the appellant was a sub lessee under the plaintiffs predecessor in title; that Ex.A.2 execution petition in O.S. 496/73 would not in any way help the respondent to contend that the appellate was only a usufructuary mortgages as the endorsement in Ex.A.2 was only for an adjustment of decree money due from O.S. No. 116/76, District Munsif Court, Kumbakonam; that the lower Courts have arrived at an erraneous conclusion that the appellant was liable to hand over the possession as if the case of the plaintiff that there was an othi and the same was discharged in view of Ex.A.2 endorsement in the execution petition in O.S. No. 116/76; that it is pertinent to note that a decree in O.S. 496/73, District Munsif Court, Kumbakonam obtained by the appellant/defendant against the predecessor in title of the plaintiff was only on the basis of a pro-note and no case of othi was pleaded by the defendant in the instant suit or found against him; that the lower Courts were in error in holding that though under Ex.B.3 possessory relief was rejected to the plaintiff, he was still entitled to ask for the same on the ground that there was a discharge of othi and under the circumstances, the suit filed by the respondent was not maintainable and the civil Court had no jurisdiction to grant a relief of possession against the appellant, who was a cultivating tenant. 7. Countering to the above contentions of the appellants side, the learned counsel for the respondent would urge that the respondent/plaintiff was a lessee in respect of the suit mentioned Nanja land, which belonged to Tirupanandal Kasi Mutt; that the respondent executed a usufructuary mortgage with respect to the suit property in favour of the defendant for Rs. 600/- with a condition that whenever the respondent/plaintiff paid the principal to the appellant, she should deliver the possession of the properties; that though the appellant had agreed to pay the rent to the respondent, she did not pay any amount but the respondent was however to pay the amount to the owner, namely, Tirupanandal Kasi Mutt. Under such circumstances, the plaintiff was constrained to file a suit in O.S. 116/76 and the same was also decreed; that the appellant has also filed a suit for recovery of amount paid by her in O.S. No. 496/73; that in order to recover the same, the appellant filed E.P. 214/82 in O.S. No. 496/73 and the respondent filed E.P. 62/82; that it is pertinent to note that the amount payable by the parties under the decrees were adjusted and thus, the amount paid by the appellant for the enjoyment of the property has been fully discharged and under such circumstances, the appellant, who was bound to redeliver the possession of the property, has been continuing in illegal possession and has put forth an unsustainable defence that she was recorded as cultivating tenant by the Record of Tenancy Officer and hence she could not be evicted; that the appellant could neither call herself as cultivating tenant nor was she entitled to the protection in respect of the possession as contemplated under the Act; that both the Courts have a thorough analysis of the legal position in that regard and have arrived at a correct conclusion that the appellant could not get the benefit under the provisions of the Tamil Nadu Cultivating and Tenancy Protection Act and that even assuming the appellate was so recorded, it has not become final. In view of the abovestated circumstances, the judgment of both the Courts below have got to be confirmed and the appeal has got to be dismissed. 8. Admittedly, the suit property belonged to Tirupanandal Kasi Mutt and the respondent herein was a lessee. The plaintiff has sought the relief of recovery of possession. In view of the abovestated circumstances, the judgment of both the Courts below have got to be confirmed and the appeal has got to be dismissed. 8. Admittedly, the suit property belonged to Tirupanandal Kasi Mutt and the respondent herein was a lessee. The plaintiff has sought the relief of recovery of possession. Specifically averring that she executed a usufructuary mortgage in favour of the appellant in respect of the suit property for a sum of Rs. 600/- which she borrowed on condition that whenever the respondent paid the said principal of Rs. 600/- to the appellant, she should deliver the possession of the suit property. It was contended by the respondents side that she was to pay the rent to the owner of the land, namely, Tirupanandal Kasi Mutt. There was a default on the part of the appellant and in order to recover the same, she filed a suit in O.S. No. 116/76. It is also not disputed that the appellant for the recovery of the said money paid by her, filed a suit in O.S. No. 496/73 and also initiated execution proceedings for the decree amount; that when both the execution petitions were pending in the Court, the amount found in the execution petitions were adjusted to each other and thus, the usufructuary mortgage debt was discharged and hence, the appellant was liable to hand over the possession. 9. What was contended by the appellant in both the Court below and equally here also is that she was the cultivating tenant and she has also been recorded so by the Record of Tenancy Officer. Under such circumstances, the suit filed by the respondent seeking possession of the property was not maintainable in law, since the civil Court cannot go into the question as to the validity of the order passed by the Record of Tenancy officer or cannot direct the appellant to deliver the possession to the respondent. After careful consideration of the rival submission and the legal position in that regard, the Court has to necessarily agree with the appellant. 10. The plaintiff sought the relief of recovery of possession with the specific averments that she created usufructuary mortgage is favour of the appellant/defendant in respect of the suit property for Rs. 600/-, which she obtained as a loan. 10. The plaintiff sought the relief of recovery of possession with the specific averments that she created usufructuary mortgage is favour of the appellant/defendant in respect of the suit property for Rs. 600/-, which she obtained as a loan. The appellant, who obtained the possession of the land in question under the said usufructuary mortgage continuous to be in possession. It is the case of the respondent that the said principal amount of Rs. 600/- was paid by way of adjustment in the execution proceedings and hence, the appellant/defendant should deliver the possession of the suit property. The claim of recovery of possession was resisted by the appellant by stating that she is a cultivating tenant and the same has also been recorded by the Pecord or Tenancy Officer and hence, her possession is protected under the provisions of the said enactment and the civil Court cannot also go into the question as to the validity of the order passed by the Record of Tenancy Officer. It is quite evident from the documents filed and relied on by the appellant that the appellant has been recorded as cultivating tenant in respect of the suit lands by the Additional Record Officer, Kumbakonam by an order, dated 15.7.1977. At this juncture, the question that would arise for consideration would be that even after the redemption of the usufructuary mortgage, whether the tenant could claim the protection granted under the Tamil Nadu Cultivating Tenants Protection Act, 1955 as against the mortgagor. A Full Bench of this Court had an occasion to consider this question in a case reported in 1976 (2) MLJ 243 = (1975) 88 L.W. 216 ) (Chandrasekaran v. Kunju Vanniar and Other) and has held as follows: “The question referred to the Full Bench was “Whether the tenants under a usufructuary mortgage are entitled, after redemption of the usufructuary mortgage, to claim the protection granted under the Tamil Nadu Cultivating Tenants Protection Act, 1955 as against the mortgagor. In answering the question in the affirmative, There is no question of the usufructuary mortgagee conferring upon the tenant a higher title than what he is possessed of. What happens for purposes of the inclusive definition (of ‘Cultivating tenant’) is that no higher title than what the usufructuary mortgagee possessed in conferred on the cultivating tenant. In answering the question in the affirmative, There is no question of the usufructuary mortgagee conferring upon the tenant a higher title than what he is possessed of. What happens for purposes of the inclusive definition (of ‘Cultivating tenant’) is that no higher title than what the usufructuary mortgagee possessed in conferred on the cultivating tenant. But the statute intervenes at the determination of the tenancy agreement and enjoins that if the contractual tenant within the meaning of the first part of the definition of ‘Cultivating tenant’ continues in possession of the land, he would be entitled to protection as a cultivating tenant. The principle that no man can confer upon another a title or right higher than what he himself possessed, will, therefore, have no validity in the application of the inclusive definition of ‘Cultivating tenant’.” In the instant case, the plaintiff/mortgagor has laid a civil action for recovery of possession with the pleadings that the mortgage has been redeemed, wherein the defence put forth by the appellant was that she was entitled to statutory protection granted under the Tamil Nadu Cultivating Tenants Protection Act. 1955. Applying the above decision, there cannot be any difficulty to find that the appellant herein, who has been recorded as a cultivating tenant in respect of the suit lands, was entitled to the protection under the said enactment despite the fact of redemption of the said usufructuary mortgage. 11. The next contention that was put forth by the appellants side was that the civil Court cannot go into the question as to the validity of the order of the Record of Tenancy Officer recording the appellant as a cultivating tenant; that the civil Court cannot act as an appellate Authority against the order, but only the appellate Authority, as constituted under the Act 10/69 could exercise the jurisdiction as an appellate forum. As seen from the judgment of the Courts below, it would be abundantly clear that both the court despite the fact of recording the appellant as a cultivating tenant, have gone into the question as to the validity of the order. It cannot be disputed that the authority constituted under the Tamil Nadu Act 10/69 has decided the appellant as a cultivating tenant and has recorded her so in the record of tenancy. It cannot be disputed that the authority constituted under the Tamil Nadu Act 10/69 has decided the appellant as a cultivating tenant and has recorded her so in the record of tenancy. A Full Bench of this Court had an occasion to consider the scope and the jurisdiction of the civil Court to determine whether a particular person is cultivating tenant or not? It would be more appropriate and advantageous also to reproduce the relevant part of the said judgment, reported in AIR 1980 Madras 180 = 93 L.W. 169 (FB) (Periathambi Goundan v. The District Revenue Officer, Coimbatore and Others), reads as follows: “The Civil Courts jurisdiction is expressly excluded in respect of the question whether a particular person is a cultivating tenant or not. AIR 1976 Mad 287, Approved. However, Sec. 16A did not in any way affect the jurisdiction of the Civil Court in respect of suits or proceedings validly instituted before the coming into force of the said section and pending on the date when the said Section came into force, whether in the original Court or in the appellate or revisional Court. S. 16-A was not intended to and could not affect any suit instituted prior to its introduction even when the suit was in respect of a matter covered by Section 16A. A suit which has been instituted prior to the coming into force of Sec. 16-A of the Act will have to run its natural and normal course prescribed by law without in any way being affected by the provisions contained in Section 16A, because there is nothing in Section 16A expressly or by necessary implication taking away the jurisdiction of the Civil Court validly and competently assumed at the first instance. Consequently even if a decree had not been passed in a suit at the time when Sec. 16A came into force, the fact that Sec. 16A came into force during the pendency of the suit will not prevent the Court from exercising its jurisdiction lawfully and validly invoked and the same principle will apply to the further course of the suit in the form of appeal or revision. AIR 1976 Mad. AIR 1976 Mad. 287, Overruled; 1977 1 Mad LJ 189 and AIR 1977 Mad 402 , Approved.” From the above decision, it would be abundantly clear that bar imposed by Section 16-A did not affect the jurisdiction of the civil Court in respect of the suits or proceedings validly instituted before the coming into force of the said Section and pending on the date when the said Section came into force, whether in the original Court or in the appellate or revisional Court. At this juncture, it remains to be stated that the said Section 16-A was inserted in the year 1972, but the suit for recovery of possession was filed by the respondent only in the year 1985, long after introduction of the said provision imposing the bar and making the express exclusion on the civil Courts jurisdiction to determine whether a person is a cultivating tenant or not? 12. Respectfully following the said Full Bench decision of this Court, it has to be necessarily found that the Bar under Section 16-A of the Act is squarely applicable to the facts and circumstances of the present case, since the present suit was filed by the respondent long after the introduction of the aforesaid provision. Hence, in view of the express exclusion of the civil Court jurisdiction to determine whether a person is a cultivating tenant or not?, in the instant case, both the Courts were in error in holding that the civil Court has got jurisdiction to determine the question and over-looking the express exclusion of the civil Court jurisdiction under Section 16-A of the said Act. In the instant case, the appellant has proved by adducing sufficient documentary evidence that she has been recorded as cultivating tenant by the Record of Tenancy Officer, by an order, dated 15.7.1977 and Section 16-A was introduced in the year 1972, wherein the civil Courts jurisdiction was expressly excluded. Applying the decision of the Full Bench stated supra, it has to be necessarily found that the civil Court has no jurisdiction to go into the validity or otherwise of the order recording the appellant as a cultivating tenant and thus, the suit filed by the respondent was not maintainable and no relief could be granted in her favour. The respondent can well seek her remedy before the appellate Forum constituted under the provisions of the said enactment, if so advised. 13. The respondent can well seek her remedy before the appellate Forum constituted under the provisions of the said enactment, if so advised. 13. In the result, this Second Appeal is allowed and the judgment and decree of both the Courts are set aside and the suit is dismissed. No order as to costs. Consequently, connected CMP is closed.