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2009 DIGILAW 271 (MAD)

Joseph Nadar v. Victor Suvisesha Muthu

2009-01-22

S.RAJESWARAN

body2009
Judgment :- The defendants in O.S.No.47 of 1986 on the file of the District Munsif, Srivaikundam are the appellants before this Court. 2. For the sake of convenience, the parties are referred to as per their rankings in the suit. 3. The plaintiff filed O.S.No.47 of 1986 for permanent injunction restraining the defendants from interfering with his enjoyment and peaceful possession of the suit schedule property. 4. The case of the plaintiff in O.S.No.47 of 1986 is that the suit schedule properties belong to Mary Anaballah Luther Jesudasan who is in Kula Lumpur, Malaysia. The plaintiff entered into a lease agreement with the power of attorney agent of the above said Mary Anaballah Luther Jesudasan and on that basis, he has been cultivating the suit schedule properties. The plaintiff also registered his name as Cultivating Tenant in the Government records under the provisions of Tamil Nadu Agricultural Lands Record and Tenancy Rights Act, 1969 (hereinafter referred to as Act X of 1969). In a property dealing, some problem arose between the plaintiff and the first defendant resulting in the plaintiff giving a police complaint against the first defendant. To defend the case, the plaintiffs aunty sought the help of the second defendant. At that time, the second defendant not only received a hefty sum of money from the plaintiff, but, also received blank stamp papers signed by the plaintiff and his aunty by stating that they were necessary for the purpose of conducting their criminal case. As the second defendant was not proper in the money dealings, the relationship between the plaintiff and the second defendant strained. To wreck vengeance on the plaintiff, defendants 1 and 2 colluded together and using the blank stamp papers containing the signatures, documents were created by the defendants as if the plaintiff sub-leased the suit properties to use second defendant on 15-02-1985 and the second defendant sub-leased the same properties on 15-11-1985 to one Vedanayagam who in turn sub-leased the very same property to the first defendant on 22-11-1985. All the above three documents were fabricated and created by the second defendant using the blank stamp papers given by the plaintiff. According to the plaintiff, there was no necessity to sub-lease the suit schedule property. All the above three documents were fabricated and created by the second defendant using the blank stamp papers given by the plaintiff. According to the plaintiff, there was no necessity to sub-lease the suit schedule property. On the basis of the fabricated documents, the defendants tried to interfere with the possession of the plaintiff and therefore, the suit was filed by the plaintiff for the aforesaid relief. 5. The suit was defended by the defendants by filing a written statement wherein they admitted that the suit schedule properties were under the occupation of the plaintiff as a cultivating tenant till 14-02-1985. But, on 15-02-1985, the plaintiff sub-leased the properties to the second defendant along with the original lease deeds entered into by the plaintiff with the power of attorney of the owner and also the order of the Tahsildar recording that the plaintiff is the cultivating tenant. It is further stated by the defendants that the second defendant on 15-11-1985 sub-leased the properties to one Vedanayagam who in turn sub-leased the properties to the first defendant on 22-11-1985. On and from 22-11-1985, the first defendant has been cultivating the suit schedule properties. The defendants denied that the three documents dated 15-02-1985, 15-11-1985 and 22-11-1985 are not fabricated documents and they were executed by the plaintiff himself on his own volition. 6. Before the trial Court, two witnesses were examined on behalf of the plaintiff and documents A1 to A19 were marked on their side. Similarly, both the defendants examined themselves as DW.1 and DW.2 and Exs.B1 to B18 were marked on their side. On the basis of the pleadings and evidence, the trial Court framed the following issues: 1) Whether the suit property was under the possession and enjoyment of the plaintiff at the time of filing the suit? 2) Whether the plaintiff is entitled to the decree of injunction? 3) Whether the plaintiff sub-leased the property to the second defendant? 4) Whether the first defendant was in possession and enjoyment of the suit property at the time of filing the suit? 5) To what other reliefs? 7. The trial Court, after analysing the evidence before it, came to the conclusion that the three documents which were marked as Exs.B3,B5 and B6 were not fabricated as claimed by the plaintiff and in fact, they were executed by the plaintiff. 5) To what other reliefs? 7. The trial Court, after analysing the evidence before it, came to the conclusion that the three documents which were marked as Exs.B3,B5 and B6 were not fabricated as claimed by the plaintiff and in fact, they were executed by the plaintiff. Further, the trial Court found that the suit properties are under the possession and enjoyment of the first defendant at the time of filing the suit. Therefore, the trial Court dismissed the suit and aggrieved by the same, the plaintiff filed A.S.No.259 of 1991 on the file of the Sub-Court, Tuticorin. The first appellate Court without evaluating and re-appreciating the evidence chose to reverse the findings of the trial Court on the ground that as the name of the plaintiff was entered into in the record of Tenancy Rights under the provisions of Act-X of 1969, the presumption as contemplated under Section 15 of the Act will hold the field and therefore, the plaintiff is presumed to be in possession and enjoyment of the suit properties. Accordingly, the first appellate Court reversed the findings of the trial Court and allowed the appeal. Aggrieved by the order of the first appellate Court, reversing the order of the trial Court, the defendants filed the above Second Appeal under Section 100 of CPC. 8. The Second Appeal was admitted by this Court on the following substantial questions of Law: a) Is the lower appellate Court right in reversing the judgment of the trial Court merely relying on the presumption in Act X of 1969, in spite of the fact that the lower appellate Court admits that the appellant had produced documents to show that he was a sub-lessee in possession of the suit properties? 9. I have heard the learned counsel for the appellants and the learned counsel for the respondents. I have also gone through the entire materials including the judgment of both the Courts below and the judgments referred to by the learned counsels. 10. The learned counsel for the appellants contends that the first appellate Court has committed an illegality in reversing the well considered judgment of the trial Court by merely relying on Section 15 of the Act-X of 1969. 10. The learned counsel for the appellants contends that the first appellate Court has committed an illegality in reversing the well considered judgment of the trial Court by merely relying on Section 15 of the Act-X of 1969. According to the learned counsel, Section 15 contemplates that any entry in the Approved Record of Tenancy Rights shall be presumed to be true and correct until the contrary is proved (or) a new entry is lawfully substituted therefor. The learned counsel further urged that before the trial Court enough materials and documents were produced to prove the contrary presumption and in fact, the trial Court clearly held that at the time of filing the suit, it is the first defendant who was in possession and enjoyment of the suit properties. Therefore, according to the learned counsel for the appellants, the first appellate Court has wrongly decided the issue by not properly reading Section 15 of the Act, 1969 and therefore, the judgment of the first appellate Court is to be set aside. In respect of his submissions, the learned counsel relied on the judgments of this Court reported in: a) 97 L.W 390 (G.Natesa Nainar -vs- Sri Karikudinathaswamy Devastanam, Marudhanallur,Kumbakonam Taluk rep.by its present Executive Officer) b) 1994 (1) LW 82 (Avidaithangammal -vs- Subramani Thevar and Murugaiah Thevar with eight others) 11. The learned counsel further contended that when the evidence were properly evaluated by the trial Court and findings were rendered to the effect that it was the first defendant who is in possession of the suit schedule properties, the same were set aside by the first appellate Court without re-evaluating the evidence and only on the basis of the placing reliance on Section 15 of the Act, 1969 which is contrary to Section 96 of CPC. 12. Per contra, the learned counsel for the respondents that the first appellate Court has correctly adverted to the legal position and legal presumption as per Section 15 of the Act-X of 1969 and no ground has been made out to interfere with those findings under Section 100 of CPC. 13. I have considered the rival submissions carefully with regard to fact and citations. 14. 13. I have considered the rival submissions carefully with regard to fact and citations. 14. From the above judgments, the following substantial questions of law have arisen for consideration in the Second Appeal: 1) Whether the lower appellate Court has correctly adverted to Section 15 of Act-X of 1969 to reverse the findings of the trial Court? 2) Whether the first appellate Court has correctly dealt with the first appeal while reversing the findings of the trial Court? First, let me consider the first substantial question of law. To decide this question, it is useful to refer to Section 15 of the Act-X of 1969: Section 15: "PRESUMPTION OF CORRECTNESS OF ENTRIES IN THE APPROVED RECORD OF TENENCY RIGHTS: ANY ENTRY IN THE APPROVED RECORD OF TENENCY RIGHTS SHALL BE PRESUMED TO BE TRUE AND CORRECT UNTIL THE CONTRARY IS PROVED (OR) A NEW ENTRY IS LAWFULLY SUBSTITUTED THEREFOR" 15. It is also necessary to refer to the definition of tenant under Section 2(8) of the Act, 1969. It is also necessary to refer to the definition of tenant under Section 2(8) of the Act, 1969. (8) (i) “tenant“ in respect of any area in the State (other than the Kanyakumari district)- (a) means in relation to any land to which the Tamil Nadu Cultivating Tenants Protection Act, 1955 (Tamil Nadu Act XXV of 1955), applies a cultivating tenant as defined in clause (aa) of section 2 of that Act and includes- (i) a mattuparamdar referred to in clause (a) or clause(b) of section 7 of the Tiruchirappalli Kaiaeruvaram and Mattuparam Act, 1958 (Tamil Nadu Act XXXVI of 1958); and (ii) a possessory mortgagor, who under a tenancy agreement, express or implied with the possessory mortgagee contributes his own physical labour or that of any member of his family in the cultivation of the land subject to possessory mortgage; and (b) means in relation to any land to which the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 (Tamil Nadu Act LVII of 1961), applies a cultivating tenant as defined in clause (5) of Section 2 of that Act; (ii) “tenant“ in respect of any area in Kanyakumari district- (a) in relation to any land other than the land to which the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 (Tamil Nadu Act LVII of 1961) applies- (i) means a person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied; and (ii) includes- (a) any such person who continues in possession of the land after the determination of the tenancy agreement; (b) the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land; (c) a sub-tenant if he contributes his own physical labour or that of any member of his family in the cultivation of such land; or (d) any such sub-tenant who continues in possession of the land notwithstanding that the person who sublet the land to such sub-tenant ceases to have the right to possession of such land; (e) a possessory mortgagor who, under a tenancy agreement express or implied, with the possessory mortgagee, contributes his own physical labour or that of any member of his family in the cultivation of the land subject to possessory mortgage; but (iii) does not include a mere intermediary or his heir; (b) means in relation to any land to which the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 (Tamil Nadu Act LVII of 1961) applies, a cultivating tenant as defined in clause (5) of section 2 of the Act.“ 16. From the above, it is very clear that “tenant“ includes a “sub-tenant“ and the presumption that is contemplated under Section 15 of the Act is a rebuttable presumption. It is clearly stated in Section 15 that the presumption is valid until the contrary is proved. Therefore, it cannot be said that just because the plaintiffs name is in the approved record, he shall be presumed to be a cultivating tenant in possession of the properties, that too, when enough materials are available to prove the contrary. 17. A reading of the first appellate Courts judgment will no doubt make it very clear that the first appellate Court chose to set aside the judgment of the trial Court only on the ground that there is a legal presumption under Section 15 of the Act and therefore, even if the documents filed by the defendants to prove that the plaintiff is not in possession of the property, still it is to be legally presumed that the plaintiff is the cultivating tenant who is in possession and enjoyment of the suit schedule properties. Thus, it is obvious that the first appellate Court misdirected itself in reading Section 15 of the Act, according to which, the presumption contemplated under that Section is a rebuttable presumption and not an irrebuttable presumption as held by the first appellate Court. 18. In 97 LW 390(cited supra) this Court held as under: “The entry in the Record of Tenancy Rights Register by itself does not confer any right upon the appellant as a cultivating tenant, for the main aim and purpose of the provisions of Tamil Nadu Act 10 of 1969 is only to prepare and maintain a record of tenancy rights in respect of agricultural lands in Tamil Nadu. There is no provision in Tamil Nadu Act 10 of 1969 to show that an entry in the Record of Tenancy Rights Register confers rights as a cultivating tenant on a person whose name is so entered. The provisions of Tamil Nadu Act 10 of 1969 pertain to the preparation of the record and are not declaratory of rights as a cultivating tenant. It is common knowledge that there may be several persons fulfilling the requirements of the definition of a cultivating tenant, but whose names may not be recorded in the Record of Tenancy Rights Register. They do not cease to be a cultivating tenant. It is common knowledge that there may be several persons fulfilling the requirements of the definition of a cultivating tenant, but whose names may not be recorded in the Record of Tenancy Rights Register. They do not cease to be a cultivating tenant. Equally, it has to be borne in mind that a person may not be a cultivating tenant at all, but nevertheless manage to secure an entry to that effect in his name. Such a person would not become a cultivating tenant merely by reason of his name being found in the Record of Tenancy Rights Register.“ 19. In 1994(1)LW 82(cited supra) the very same principle was again reiterated by this Court which reads as under: 8. “There is yet another aspect, which would also disentitle the first respondent/s in these Second Appeals from claiming rights as cultivating tenants on the basis of the entries Exs.A2 to A5 and A10 and A11. In Natesa Nainar -v- Sri Karikudinathaswamy Desvastanam, Marudhanallur (97 L.W.390) I had occasion to consider the purpose for which and the nature of the entries made in the Record of Tenancy Rights Register. In that connection, it was pointed out that the entry in the Record of Tenancy Rights Register by itself does not confer rights as a cultivating tenant on the appellant in that case, for the main aim and purpose of the provisions of Tamil Nadu Act 10 of 1969 is only to prepare and maintain a record of tenancy rights in respect of agricultural lands in Tamil Nadu and that there is no provision in Tamil Nadu Act 10 of 1969 to show that an entry made in the Record of Tenancy Rights Register confers a right as a cultivating tenant on a person, whose name is so entered. It was also emphasized that the provisions of Tamil Nadu Act 10 of 1969 are not declaratory of rights as cultivating tenants, but pertain to the preparation of the record and that it is common knowledge that there may be persons fulfilling the definition of the term cultivating tenant, at all, but nevertheless manage to secure an entry to that effect in his name and that merely because a name is found in the Record of Tenancy Rights Register, such a person cannot obtain and secure rights as a cultivating tenant. In this case, as seen earlier, there is no proof of a lease having been granted in favour of the first respondent/s in these Second Appeals and if so, it is a great wonder as to how the names of the 1st respondent in these second Appeals came to be entered as cultivating tenants. Even assuming that there are entries in the Record of Tenancy Rights Register, merely on the strength of those entries, no right as cultivating tenant can be declared in favour of the first respondent/s in these Second Appeals. Consequently, the lower appellate Court was in error in holding that the entries could not be challenged and that on the strength of the entries, the first respondent/s in these appeals would be entitled to the reliefs prayed for by them in the suits“. 20. From the above judgments also, it is very clear that the main purpose of the provisions of the Tamil Nadu Lands Record and Tenancy Rights Act, 1969 is only to prepare and maintain a record of tenancy rights in respect of agricultural lands in Tamil Nadu. Further, the provisions of the Act-X, 1969 are not declaratory of rights as cultivating tenants and it is common knowledge that there may be persons not fulfilling the definition of “cultivating tenant“ at all, but, managed to secure an entry and such a person cannot secure his rights as a cultivating tenant. Similarly, there may be persons fulfilling the definition of a cultivating tenant, but, whose names may not be recorded in the record of tenancy rights register. That does not mean that they cease to be a cultivating tenant. 21. Therefore, I am of the considered view that the first appellate Court has misdirected itself in reading Sec.15 of the Act and reversed the findings of the trial Court, only on the basis of the rebuttable presumption contemplated therein, which is absolutely not correct either in law or on facts. Therefore, it is necessary that the judgment of the first appellate Court is to be set aside in this regard. 22. Therefore, it is necessary that the judgment of the first appellate Court is to be set aside in this regard. 22. In so far as the second substantial question of law is concerned, it is settled law that Section 96 CPC contemplates that the first appellate Court, while reversing a finding of fact of the trial Court must come into close quarters with reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. The first appellate Court ought to give reasoning as to how the findings of the trial Court are wrong. 23. In the present case, the trial Court on the basis of the evidence, found that the three documents executed by the plaintiffs are not fabricated and they are genuine documents, that the plaintiffs is not in possession of the suit schedule properties and it is the first defendant who is in possession of the same. If that being so, a duty is cast upon the first appellate Court under Section 96 of CPC to re-evaluate the evidence to find out whether the documents are fabricated or not and whether who is in possession of the suit schedule properties. But, the first appellate Court abdicated this duty and made a sweeping finding that even if the documents are not fabricated and if they are genuine, in view of Section 15 of the Act-X, 1969, the plaintiff is presumed to be in possession of the suit schedule properties. I have already held that the first appellate Court has misdirected itself in reading Section 15 and now it is proved that the first appellate Court has failed in its duty to consider the appeal as is expected. 24. Therefore, both the substantial questions of law are decided in favour of the appellants and against the respondents. 25. Accordingly, I have no hesitation in setting aside the judgment and decree of the first appellate Court, reversing the judgment and decree of the trial Court. Since the first appellate Court has not re-evaluated the evidence to come to the conclusion that the findings of the trial Court are wrong, this Court in its juridiction under Section 100 of CPC cannot do the same and therefore, the appeal is remanded to the first appellate Court to decide the issue afresh on merits and in accordance with law and also as indicated in the above judgment. 26. Considering the fact that the suit is of the year 1986, the lower appellate Court is directed to take up the A.S.No.259 of 1991 as expeditiously as possible to dispose off the appeal within two months from the date of receipt of a copy of this order. 27. In the result, the Second Appeal is ALLOWED. No costs. Consequently, connected CMP.No.4774 of 1996 is closed.