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2001 DIGILAW 940 (MAD)

Seshachala Mudaliar v. K. Subramaniam and others

2001-08-20

A.RAMAMURTHI

body2001
JUDGMENT: The plaintiff in O.S. No.613 of 1987 and the first defendant in O.S. No.163 of 1989 on the file of the District Munsif Court, Arani has preferred the second appeals in S.A. Nos.929 and 930 of 1991 respectively aggrieved against the decree and judgment made in A.S. Nos.43 and 42 of 1990 respectively dated 28.2.1991, reversing the judgment and decree of the trial Court dated 31.8.1990. 2. The case in brief for the disposal of both the appeals are as follows: The plaintiff in O.S. No.613 of 1987 filed the suit for permanent injunction, restraining the defendants from interfering in his possession and enjoyment of the property as a cultivating tenant and also to restrain the first and second defendants from alienating the property to the third defendant. O.S. No.163 of 1989 has been filed by the plaintiffs for a declaration that the first plaintiff is the owner of the suit property and also to direct the first defendant to deliver possession of the property to the second plaintiff with costs, damages at Rs.8,000 and also future damages. 3. The suit property belong to first and second defendants in O.S. No.613 of 1987. They were doing business at Arani and the Plaintiff is their maternal uncle. The plaintiff is cultivating the property under a lease for the past 20 years. A portion of the yield was given towards the lease to first and second defendants. Patta was also transferred in the name of the plaintiff and first and second defendants attempted to alienate the property to the third defendant. In fact, the plaintiff also wanted to purchase the property for a valid consideration. The plaintiff is in possession and enjoyment of the property as a cultivating tenant and is entitled to the relief as prayed for. 4. First and second defendants admitted that the property belongs to them, but denied the alleged oral lease put forward by the plaintiff. The plaintiff was managing the property only as a kartha of the family, considering the relationship of the parties. The plaintiff is also sufficiently aged about 75 years and he is not doing personal cultivation. The suit property was also alienated by first and second defendants in favour of the third defendant for a valid consideration and possession wa also given. 5. The Suit in O.S. No.163 of 1989 was filed by the plaintiffs, who are husband and wife. The plaintiff is also sufficiently aged about 75 years and he is not doing personal cultivation. The suit property was also alienated by first and second defendants in favour of the third defendant for a valid consideration and possession wa also given. 5. The Suit in O.S. No.163 of 1989 was filed by the plaintiffs, who are husband and wife. The third defendant in O.S. No.613 of 1987 is the second plaintiff in that suit. The plaintiff and first and second defendants in O.S. No.613 of 1987 are first, second and third defendants in O.S. No.613 of 1999,, The plaintiffs in O.S. No.163 of 1989 have raised the very same contentions raised by the defendants in O.S. No.613 of 1987. Similarly, first, second and third defendants also re-iterated the very same contentions raised by them respectively in O.S. No.613 of 1987 and it is unnecessary to reproduce the same. 6. The trial Court framed five issues in O.S. No.613 of 1987 and six issues in O.S. No.163 of 1989. Evidence was recorded in O.S. No.163 of 1989 and the same was treated as evidence in the other suit. On behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A-1 to A-6 were marked and on the side of the defendants, D.Ws.1 to 5 were examined and Exs.B-1 to B-17 were marked. 7. The trial Court decreed the suit in O.S. No.613 of 1987 in part and granted the relief of permanent injunction to restrain the defendants from interfering with his possession and enjoyment of the property and in other respects dismissed the suit. O.S. No.163 of 1989 was dismissed. Aggrieved against this the plaintiffs in O.S. No.163 of 1989 and the defendants in O.S. No.613 of 1987 have preferred A.S. Nos.42 and 43 of 1990 respectively on the file of the Sub-Judge, Arani and the learned Judge after hearing the parties allowed A.S. No.42 of 1990 by setting aside the decree and judgment of the trial Court and decreed the suit by granting the relief of delivery of possession in a period of two months. The relief relating to damages was left open to be decided in separate proceedings. A.S. No.43 of 1990 was allowed in part and the decree and judgment of the trial Court was also modified, dismissing the relief of permanent injunction granted by the trial Court and dismissed the suit. The relief relating to damages was left open to be decided in separate proceedings. A.S. No.43 of 1990 was allowed in part and the decree and judgment of the trial Court was also modified, dismissing the relief of permanent injunction granted by the trial Court and dismissed the suit. Aggrieved against this, the plaintiff in O.S. No.613 of 1987 and the first defendant in O.S. No.163 of 1989 has preferred these two second appeals. 8. At the time of the admission of the second appeals the following substantial questions of law were framed: S.A.No.929 of 1991: “(1) Whether the lower appellate Court is right in holding that the Civil Court has no jurisdiction to grant the prayer for permanent injunction? (2) Whether the lower appellate Court is right in deciding whether the Revenue Court can decide the issue whether a person is a cultivating tenant or not? S.A.No.930 of 1991:”Whether the reasoning of the lower appellate Court that the appellant is not a cultivating tenant and that the respondents 1 and 2 are entitled to the relief claimed by them, having found in the other suit that the Civil Court has no jurisdiction to decide whether a person is a cultivating tenant or not?“ 9. The suit property in both the suits as well as the parties, the points in issue are one and the same and hence, a common judgment is pronounced. The parties will be hereinafter referred to as they are described in O.S. No.163 of 1989 to avoid confusion. 10. Heard the learned counsel for the parties. 11. The points that arise for consideration in these two second appeals are: "(1) Whether the plaintiffs in O.S. No.163 of 1989 are entitled to delivery of possession? (2) Whether the first defendant is entitled to the relief of permanent injunction? (3) Whether the Civil Court has jurisdiction to give a finding as a cultivating tenant? (4) To what relief, if any? 12.Points: The suit properties are dry lands in Irumbedu village, North Arcot District, consisting of four items. There is no dispute that second and third defendants were the owners of the suit property. The first defendant took a plea that he is cultivating the suit property as a lessee for the past 20 years and he has been paying a portion of the yield by way of the lease amount. There is no dispute that second and third defendants were the owners of the suit property. The first defendant took a plea that he is cultivating the suit property as a lessee for the past 20 years and he has been paying a portion of the yield by way of the lease amount. It is also admitted that the first defendant is the maternal uncle of second and third defendants. However, second and third defendants contended that when they were minors, the properties were looked after by the first defendant and he was never a lessee of the properties. Later, second and third defendants have sold the suit properties to the plaintiffs under a registered document, Ex.A-2 dated 24.7.1987 and possession was also given to them. However, subsequently, the first defendant took possession of the properties and therefore, the plaintiffs have filed the suit for recovery of possession with costs and future damages. 13. The trial Court dismissed the suit filed by the plaintiffs and decreed the suit filed by the first defendant and granted the relief of permanent injunction on the ground that the first defendant as a cultivating tenant of the property is entitled to remain in possession of the property. However the lower appellate Court gave a finding that the question of cultivating tenant cannot be decided by the Civil Court and the matter has to be decided only by the competent Revenue Court, in the circumstance, the first defendant was not entitled to the relief permanent injunction and as such the suit was dismissed. However, the suit filed by the plaintiffs was decreed granting the relief of recovery of possession and the first defendant was directed to deliver possession in a period of two months. 14. The short questions that has to be decided in the appeals are: "(1) Whether the Civil Court has got jurisdiction to entertain the plea that the first defendant is the cultivating tenant of the properties and based upon his possession, whether the first defendant is entitled to the relief of permanent injunction? (2) Whether the plaintiffs are entitled to get delivery of possession of the property from the first defendant? 15. Learned counsel for the appellant contended that the lower appellate Court failed to consider that the appellant is a cultivating tenant entitled to the benefits of the Act. (2) Whether the plaintiffs are entitled to get delivery of possession of the property from the first defendant? 15. Learned counsel for the appellant contended that the lower appellate Court failed to consider that the appellant is a cultivating tenant entitled to the benefits of the Act. The jurisdiction of the Civil Court is not taken away so far as it relates to the grant of permanent injunction, restraining the landlord from interfering with the possession of a tenant. The appellant has filed number of documents to prove that he is cultivating the properties in his own right as a cultivating tenant. The lower appellate Court has also failed to consider the decision in A.Venkataraman v. S.Rajalakshmi, (1985)1 M.L.J. 232 in a perspective way. Exs.B-1 to B-17 filed on behalf of the appellant have not been considered. The first defendant has categorically admitted the possession of the property by the appellant as the kartha of the family and not as a cultivating tenant. Exs.B-2 to B-9 exclusively prove that the appellant is in possession and he relied upon the kist receipts and Adangal registers to establish his possession. The appellant alone filed the suit anterior in point of time and after getting interim injunction only, the respondents 1 and 2 have filed another suit for declaration and recovery of possession. 16. It is practically admitted that the first defendant alone is in possession and enjoyment of the property. He had filed number of documents to prove his possession and enjoyment. Although second and third defendants have conveyed the property in favour of the plaintiffs, yet the possession continued to remain only with the first defendant. Only under the circumstance, the lower appellate Court also granted a decree in favour of the plaintiffs for declaration as well as delivery of possession granting two months time, to the first defendant to surrender possession of the property. Learned counsel for the appellant mainly contended that when once it s held that possession of the property is with the first defendant, then naturally, he is entitled the relief of permanent injunction, and at the same time, the plaintiffs are also not entitled to get the relief of recovery of possession. Learned counsel for the appellant mainly contended that when once it s held that possession of the property is with the first defendant, then naturally, he is entitled the relief of permanent injunction, and at the same time, the plaintiffs are also not entitled to get the relief of recovery of possession. The plaintiffs are the purchasers of the properties from second and third defendants and as such, the relief of declaration can be granted to them, but so far as the other relief of recovery of possession is concerned, the plaintiffs should have been directed to approach the Court to evict the first defendant from the property under due process of law. 17. Learned counsel for the respondents contended that the lower appellate Court has already given a clear finding that the first defendant is not personally cultivating the property and he has got other properties to the extent of 5 acres with a well etc. When once the first defendant is not contributing and physical labour in the matter of cultivation, he is not a cultivating tenant. There is no evidence to show what was the lease amount agreed upon between the first defendant and second and third defendants. Further more, the question of cultivating tenant cannot be decided by a civil Court because it is the power of the competent authority viz., the Revenue Court, to decide the same. 18. However, learned counsel for the appellant contended that even assuming that the name of the first defendant has not been recorded as a tenant in the record of tenancy register, considering the fact that he is in possession and enjoyment of the property, he cannot be evicted forcibly from the property and pleaded that the plea relating to cultivating tenant can be left open to be decided before appropriate proceeding in the revenue Court. 19. The contention of the learned counsel for the appellant was opposed by the learned counsel for the respondents on the ground that there is already a valid decree obtained by them before the Civil Court for delivery of possession and if any issue is left open to be decided separately, it will complicate the matter. 20. I am unable to agree with the contention of the learned counsel for the respondents. When once possession of the first defendant is admitted, he can be evicted only under due process of law. 20. I am unable to agree with the contention of the learned counsel for the respondents. When once possession of the first defendant is admitted, he can be evicted only under due process of law. The first defendant took a plea that he is a cultivating tenant, whereas the same is denied by the plaintiffs. It is settled position of law that the question as to whether any person is a cultivating tenant or not can be decided by the Revenue Court only and not by the Civil Court. Under the circumstances, the discussions and finding by the lower appellate Court that the first defendant is not a cultivating tenant is not proper and correct and as such, appropriate orders ought to have been passed by the lower appellate Court . Considering the fact that the first defendant is admittedly in possession of the property, the issue whether he is a cultivating tenant or not can be considered and decided by the Revenue Court only and the parties have to be given liberty to decide the dispute before the appropriate authority and it is not proper for the Civil Court to give a finding in one way or the other. Since the issue of cultivating tenant has to be decided by a Revenue Court, I am of the view that the decree granted by the lower appellate Court to the plaintiff for recovery of possession has to be suitably modified as otherwise, there is every possibility for the plaintiffs to execute the decree and get delivery of possession, which will ultimately prevent the first defendant from moving the Revenue Court to establish his right as a cultivating tenant. Under the circumstance, I am of the view that the lower appellate Court has mis-directed itself and taken up the issue of cultivating tenant without any jurisdiction and unnecessarily gave a finding which resulted in further controversy. Under the above said circumstances, it is just and proper that the judgment and decree granted by the lower appellate Court have to be suitably modified in the interest of justice and the points are answered accordingly. 21. Under the above said circumstances, it is just and proper that the judgment and decree granted by the lower appellate Court have to be suitably modified in the interest of justice and the points are answered accordingly. 21. For the reasons stated above, the second appeal in S.A. No.929 of 1991 is allowed and the judgment and decree of the lower appellate Court are set aside and the plaintiff is entitled to remain in possession of the property until he is duly evicted in accordance with law. The plaintiff is also given three months time to move the appropriate Court to establish that he is a cultivating tenant. There will be no order as to costs. 22. The second appeal in S.A. No.930 of 1991 is partly allowed and the judgment and decree of the lower appellate Court are modified granting the relief of declaration to the plaintiffs and in respect of delivery of possession it is kept in abeyance for a period of three months. The first defendant is directed to move the Revenue Court to establish that he is a cultivating tenant in a period of three months, failing which, it is open to the plaintiffs to execute the decree for delivery of possession after the expiry of three months. There will be no order as to costs.