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2011 DIGILAW 2599 (MAD)

Arumugapandian v. Saraswathi

2011-06-07

D.HARIPARANTHAMAN

body2011
JUDGMENT :- 1. The writ petitioner and the original first respondent jointly purchased a property on 01.07.1981 measuring 2 acres 21 cents in S.No.233/2B at Thirukurungudi Village, Nanguneri Taluk, Tirunelveli District. The original first respondent is the brother-in-law of the petitioner i.e. the present first respondent is the wife of the original first respondent, who is now no more. 2. The first respondent has no issue. The first respondent adopted the daughter of the petitioner by way of an adoption deed in the year 1980. However, the relation between the two families was not good and there was misunderstanding. In these circumstances, a registered partition deed was entered into between the petitioner and the original first respondent on 04.12.1987. As per the partition deed, out of the afore-said 2 acres 21 cents, the western 1/2 portion of 1 acre 9 cents was allotted to the original first respondent. After the afore-said partition, the adopted girl came to the natural father/the petitioner, during 1988. Later, the adoption deed was also cancelled on 10.08.1988. 3. While so, the petitioner herein filed O.S.No.241 of 1992 before the District Munsif Court, Vallioor seeking permanent injunction restraining the original first respondent and the present first respondent from interfering with the possession and enjoyment of the property allotted to the first respondent in the partition deed. The plea set up by the petitioner herein was that when the partition deed was entered into on 04.12.1987, a lease agreement was also entered into between the petitioner and the original first respondent on the same day after the registration of the partition deed. The said lease agreement was marked as exhibit A6 before the Trial Court. 4. The Trial Court rejected Ex.A6-the lease agreement on the ground that it was not believable and it was not a reliable document. However, the Trial Court decreed the suit on 30.09.1994 on the ground that the petitioner was in possession of the property. The Trial Court did not record a finding as to whether the petitioner was a tenant and the matter was left open to the petitioner to prove that he was a tenant before the appropriate forum. The afore-said judgment of the trial Court was confirmed by the Appellate Court on 29.06.2005 and that may not be relevant for the purpose of this case. 5. The afore-said judgment of the trial Court was confirmed by the Appellate Court on 29.06.2005 and that may not be relevant for the purpose of this case. 5. While so, the petitioner filed an application in T.R.No.10 of 1992 before the Record Officer under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (hereinafter referred as the Act) to record him as a tenant under Section 4 of the Act. Before the Record Officer, the petitioner examined himself as a witness and documents Ex.A1 to Ex.A9 were marked. The original first respondent also got examined and documents Ex.R1 to Ex.R6 were marked. The petitioner sought to record him as a tenant based on the tenancy agreement that was marked before the District Munsif Court, Vallioor in O.S.No.241 of 1992. Before the Record Officer, it was marked as Ex.A7. Apart from examining himself, the petitioner also examined the Village Administrative Officer on his side. The Record Officer allowed the application based on Ex.A7 and also on the ground that the original first respondent accepted in his pleadings that the property was in possession of the petitioner as a tenant. 6. The original first respondent filed an appeal before the Special Sub Collector under Section 6 of the Act. The appeal was taken on file as Appeal No.17 of 1996. The exhibits that were marked before the Record Officer were not transmitted to the Appellate Authority. The Record Officer informed that exhibits were not available on his files. In such circumstances, the Appellate Authority directed the parties to produce the documents that were available with the parties. The petitioner herein produced 17 documents. Ex.A10 was the order of the Appellate Court in A.S.No.106 of 1994 confirming the judgment and decree in O.S.No.241 of 1992. He also produced other documents including two letters said to have been written by the original first respondent. The original first respondent opposed for marking the documents that were not produced before the original authority, though those documents were available. One letter is dated 12.03.1985 and the other letter is dated 08.08.1989. The Appellate Authority marked those documents as Ex.A1 to Ex.A17. However, the Appellate Authority refused to consider Ex.A11 to Ex.A17 on the ground that those documents were not produced before the Record Officer though they were available at that time with the petitioner. 7. One letter is dated 12.03.1985 and the other letter is dated 08.08.1989. The Appellate Authority marked those documents as Ex.A1 to Ex.A17. However, the Appellate Authority refused to consider Ex.A11 to Ex.A17 on the ground that those documents were not produced before the Record Officer though they were available at that time with the petitioner. 7. The Appellate Authority rejected Ex.A7-the lease agreement, on the ground that the original first respondent could not have executed a lease agreement on the same day, when there was a partition took place. The Appellate Authority also held that the petitioner did not produce any receipt for having paid the rent and that the petitioner has not given any document to establish what was the rent fixed. The appeal was allowed on 20.03.1996 and the order of the Record Officer was reversed. 8. Against the order of the Appellate Authority, the petitioner preferred a revision before the second respondent. The Revisional Authority rejected the revision by the impugned order dated 20.10.2004. The Revisional Authority held that the adangal of the village does not show the petitioner as a tenant. On the other hand, the adangal reveals that the petitioner was in possession of the land, not as a tenant. The Revisional Authority also concurred with the findings of the Appellate Authority and rejected Ex.A7. The petitioner has now filed the present writ petition to set aside the order of the second respondent. 9. While the writ petition is pending, the original first respondent died on 10.03.2007 and his wife, the sister of the writ petitioner, was substituted by an order of this Court, dated 08.09.2010. 10. The learned counsel for the petitioner submits that the Appellate Authority was not correct in refusing to consider Ex.A11 to Ex.A17 after having marked those documents. The learned counsel submits that the letters Ex.15 and Ex.17 dated 12.03.1985 and 08.08.1989 respectively would prove that the petitioner was a tenant under the first respondent, if those documents were considered by the Appellate Authority. 11. On the other hand, the learned counsel for the first respondent submits that the very case of the petitioner was based on Ex.A7, and when he fails, he could not improve his case particularly when he did not produce those documents before the original authority and those documents could not be relied on without subjecting him to cross-examination. 11. On the other hand, the learned counsel for the first respondent submits that the very case of the petitioner was based on Ex.A7, and when he fails, he could not improve his case particularly when he did not produce those documents before the original authority and those documents could not be relied on without subjecting him to cross-examination. According to the first respondent, such an objection was raised by the first respondent and based on the said objection, the Appellate Authority correctly refused to consider those documents. The documents were marked with objections as per the very order of the Appellate Authority. 12. According to the first respondent, there is no infirmity in the order of the Appellate Authority. He also submits that no such plea is raised before this Court in the affidavit or before the Revisional Authority regarding the non-consideration of Ex.A11 to Ex.A17 by the Appellate Authority and the petitioner would not urge those grounds at the time of argument. The learned counsel also submits that the District Munsif, Vallioor has considered on merits the alleged lease agreement and rejected the same and the said findings of the Trial Court is binding on the authorities under the Act. In this regard, he relies on a Division Bench judgment of this Court reported in AIR 1992 Madras 97 (Ramalingam v. District Revenue Officer). 13. I have considered the submissions made on either side. 14. The petitioner sought to record himself as a tenant based on Ex.A7/the tenancy agreement. Tenancy can be proved by a tenancy agreement either 'express' or 'implied'. The petitioner has chosen to prove the tenancy by the express agreement dated 04.12.1987. On the other hand, the first respondent disputed Ex.A7 and the case of the first respondent was that when partition took place between the petitioner and the first respondent on 04.12.1987, the first respondent gave a signed blank paper for the purpose of patta transfer and the same was used by the petitioner as if there was a tenancy agreement. It was the case of the first respondent that when there was a bitterness between the families that led to partition between the petitioner and the first respondent, there could not have been a lease agreement on the same day when the partition deed was registered. It was the case of the first respondent that when there was a bitterness between the families that led to partition between the petitioner and the first respondent, there could not have been a lease agreement on the same day when the partition deed was registered. The property was jointly purchased in the year 1981 and there was a partition of the suit property on 04.12.1987, after 6 years. However, the Record Officer proceeded to allow the application based on Ex.A7 and rejected the plea of the first respondent. 15. The Record Officer allowed the application on the other ground that the first respondent accepted in the pleadings before the District Munsif Court in O.S.No.241 of 1992 that the petitioner is a tenant and he is in possession as a tenant. The finding rendered by the Record Officer, in this regard, is extracted hereunder:- "TAMIL" 16. However, the learned counsel for the petitioner fairly submits that the afore-said findings of the Record Officer is erroneous and not borne out by records. Hence, the findings of the Record Officer is solely based on Ex.A7. In fact, the case of the petitioner all along before the Record Officer is only based on Ex.A7/lease agreement. The petitioner sought to prove his tenancy rights on the express written lease agreement. 17. When appeal was filed, the Appellate Authority reversed the order of the Record Officer on the ground that Ex.A7 could not be relied on. The Appellate Authority recorded a finding that the first respondent could not have entered into a lease agreement on the same day when there was a partition of the concerned property. The Appellate Authority also recorded that the petitioner did not produce any receipt for having paid rent. It is also held by the Appellate Authority that the petitioner failed to state the rate of rent payable by him as a tenant. The Appellate Authority further held that though the petitioner is in possession, he could not be a tenant. 18. The petitioner filed a revision before the second respondent. The second respondent rejected the revision by the impugned order and the second respondent concurred with the finding of the Appellate Authority and held as follows:- "TAMIL" 19. The Revisional Authority also held that the adangal shows that the petitioner is not a tenant. 18. The petitioner filed a revision before the second respondent. The second respondent rejected the revision by the impugned order and the second respondent concurred with the finding of the Appellate Authority and held as follows:- "TAMIL" 19. The Revisional Authority also held that the adangal shows that the petitioner is not a tenant. In fact, the Appellate Authority as well as the Revisional Authority have rejected Ex.A7 by independently considering the said document. The reasoning given by the Appellate Authority as well as the second respondent for rejecting Ex.A7 are sound and there is no infirmity in the reasonings of those authorities. The reasoning was not based on the findings of the District Munsif in O.S.No.241 of 1992 on the lease agreement. The findings of the District Munsif Court on the lease agreement is as follows:- "TAMIL" 20. The afore-said finding of the District Munsif is binding on the parties, as held by the Division Bench of this Court reported in AIR 1992 MADRAS 97 (cited supra). Paragraph 9 of the judgment is extracted hereunder in this regard. "9. . . . Thus, in our view, the findings rendered by the Civil Court in proceedings between the parties have been rightly referred to and relied upon by the first respondent to reject the plea of the appellant that he was a cultivating tenant in respect of the lands in question. We see no reason to interfere with this finding of the first respondent, which as referred to already, has found acceptance with the learned single Judge." 21. I do not find any infirmity in the order of the Revisional Authority. The Appellate Authority is perfectly justified in refusing to consider the documents that were not produced before the Record Officer when those documents are available. Those documents were also not marked by examining the petitioner and the petitioner did not offer himself for cross-examination. That was the reason given by the first respondent for not considering those document as evidence. Further more, as rightly contended by the learned counsel for the first respondent, no such plea was raised in the writ petition that the Appellate Authority committed error in refusing to consider the documents Ex.A11 to Ex.A17. But, the case of the petitioner was that he should be treated as tenant based on the written lease agreement Ex.A7. Further more, as rightly contended by the learned counsel for the first respondent, no such plea was raised in the writ petition that the Appellate Authority committed error in refusing to consider the documents Ex.A11 to Ex.A17. But, the case of the petitioner was that he should be treated as tenant based on the written lease agreement Ex.A7. Ex.A7 was rightly rejected by the Appellate Authority and Revisional Authority and also by the Civil Court as not believable. Therefore, I do not find any infirmity in those findings. In the result, the writ petition is dismissed. No costs.