Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 251 (MAD)

Ramalingam v. Subramanian

2005-02-11

A.R.RAMALINGAM

body2005
Judgment :- One Ramalingam has filed the second appeal against the judgment and decree of the Principal District Judge, Pondicherry in A.S.No.87 of 1992 in and by which the Principal District Judge has allowed the appeal in part and set aside the finding of the Trial court that Ex.A3 is a lease deed and the plaintiff is a lessee under the defendant and found that the defendant viz., Subramanian will have to take separate action for ejecting the said Ramalingam and for other reliefs and that the said Ramalingam can continue to enjoy the land for a period of six months. 2. The said suit viz., O.S.No.804 of 1990 was filed by the said Ramalingam praying for permanent injunction against the defendant Subramanian on the allegations that he should not be evicted except under due process of law and that the suit property was leased to the plaintiff Ramalingam on 16.8.1986 by the defendant for yearly rent of Rs.1125/= after receiving four years rent in advance (Rs.4500/=) and that from the date of lease, the plaintiff is in possession and enjoyment of the suit property as Cultivating Tenant and when that being so, the defendant suddenly came and threatened the plaintiff on 15.9.1990 to vacate the suit property and that the matter was reported to panchayatdars and the panchayatdars, in turn, advised the defendant not to interfere with the plaintiff's possession and however, the defendant has chosen to issue notice through advocate on 18.9.1990 as if the defendant executed only usufructuary mortgage and that therefore, the plaintiff happened to file the suit. 3. The suit was resisted by the defendant with the allegations that the plaintiff is not a cultivating tenant of the suit property under the defendant and instead the suit property was given to the plaintiff on usufructuary mortgage for four years from 16.8.1986 for a consideration of Rs.4500/= and that after expiry of the said period, the defendant issued notice to the plaintiff indicating the defendant's right to redeem the suit property and that therefore, the suit is liable to be dismissed. 4. 4. On trial, the Principal District Munsif, Pondicherry, after marking three documents as Exs.A1 to A3 and Exs.B1 and B2 and examining P.Ws.1 and 2 and D.Ws.1 to 4 on either side, came to the conclusion that the plaintiff is in possession and enjoyment of the suit property as a lessee and he cannot be evicted without due process of law and consequently, decreed the suit. 5. On appeal, the Principal District Judge, Pondicherry in A.S.No.87 of 1992 came to the conclusion that Ex.A3 is not a lease deed and the plaintiff is not a lessee and separate proceedings should be taken by the defendant against the plaintiff for evicting him from the suit property and for other reliefs and till then or till six months, the plaintiff can enjoy the suit property and consequently, allowed the appeal in part and set aside the findings of the Trial Court that Ex.A3 is a lease deed and the plaintiff is a Cultivating Tenant. Aggrieved against such judgment and decree only the second appeal has been filed by the plaintiff. 6. I have gone through the entire oral and documentary evidence available for either side in the light of the judgments of both the courts below and the arguments of the counsels appearing for either side in detail. From this, I am able to see the following important and salient aspects for the purpose of appreciation and taking decision. The fact remains that the plaintiff and the defendant are brothers and the plaintiff is the elder brother and the defendant is younger to him and their father Kandasamy Mudaliar died on 5.3.1986 at his native place viz., Pandasolanallur as evidenced by Ex.B2. Further fact remains that the defendant Subramanian, at the time of execution of Ex.A3 and earlier, was in Government Service at Pondicherry. It is an undisputed fact that the plaintiff being elder brother is at the village Pandasolanallur. The question of law raised in the second appeal is whether Ex.A3 is a lease deed irrespective of a clause merely for sharing of water and electricity charges when there is specific recital that it is a lease deed and there is no recital that both the plaintiff and defendant to enjoy the suit property by cultivation jointly. 7. The question of law raised in the second appeal is whether Ex.A3 is a lease deed irrespective of a clause merely for sharing of water and electricity charges when there is specific recital that it is a lease deed and there is no recital that both the plaintiff and defendant to enjoy the suit property by cultivation jointly. 7. Ex.A3 is having a clear recital at the end as "rk;kjg;gl;L vGjpf;bfhz;l g[";ir epyf;Fj;jif cld;gof;if rPl;L/ ,ijg;nghy; ,uz;L efy;fs; vGjg;gl;L ,UtUk; itj;Jf;bfhz;ldh;/" This recital itself goes to indicate that this document, as such, is nothing but a lease deed executed between the plaintiff and the defendant for a period of four years. It is significant to note that the defendant has taken a stand in the written statement that it is a usufructuary mortgage deed for Rs.4500/=. At the same time, if really so, there is no reason as to why there is no recital indicating the repayment of Rs.4500/= after expiry of four years by the defendant to the plaintiff and particularly there is no specific recital that it is a document of usufructuary mortgage deed for four years. It is more significant to note that the defendant has issued notice through an advocate viz., Padmanabhan on 9.1.1989 itself stating therewith as "My client also in the possession of the property so far he has executed only lease deed to you for the lands since he is residing at Pondicherry." Though in evidence the defendant has denied these words by saying that in ink they had been interlineated by the plaintiff, such a version is not acceptable and believable in the practical approach inasmuch as there is every reason to believe that the defendant being in Government Service and residing at Pondicherry should have leased out the land to the elder brother for four years for a consideration of Rs.4500/=. It is further significant to note that on 18.9.1990, the defendant has issued another notice to the plaintiff through advocate viz., Manogaran stating therewith as "our client further states that he usufructuarily mortgaged his undermentioned schedule property to you on 16.8.1986 for Rs.4500/= for four years." So, this plea of usufructuary mortgage goes against the earlier notice marked as Ex.A1 and the recital in the lease deed marked as Ex.A3. 8. 8. Moreover, for attracting the status of Cultivating Tenant, there is no compulsion on the part of the person who claims the status to have his name registered in the record of tenancy and instead due to close relationship between the plaintiff and defendant, both parties would have thought fit that execution of Ex.A3 itself is enough to confer the status of cultivating tenant upon the plaintiff. It is more so when neither the plaintiff has tried to record his name in the record of tenancy nor the defendant has tried to file a suit for redemption and recovery of possession, etc. It is further to be indicated that no doubt Ex.A3 is an unregistered document, but, at the same time, the said document is useful to show the nature of possession of the plaintiff upon the suit property and thereby the possession of the suit property by the plaintiff cannot be viewed as illegal or as usufructuary mortgage. Therefore, taking into consideration of all these aspects, I am of the view that the approach and reasoning of the first appellate court viz., the Principal District Judge, Pondicherry to allow the appeal in part and modify the decree by setting aside the findings given in favour of the plaintiff by the Trial Court is not correct and justified. Consequently, the judgment and decree of the Principal District Judge, Pondicherry has to be necessarily set aside. 9. Accordingly, the second appeal deserves to be allowed and the same is allowed. The judgment and decree of the Principal District Judge, Pondicherry in A.S.No.87 of 1992 is set aside and the judgment and decree of the Trial Court is restored.