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2012 DIGILAW 1656 (MAD)

Uthirani Ammal v. M. Sundararajan (Deceased)

2012-03-30

T.RAJA

body2012
Judgment :- 1. The present Second Appeal has been brought by the defendants against the Judgment and Decree dated 19.08.2005 passed in A.S.No.2 of 2002 on the file of the Additional District and Sessions Judge (Fast Track Court II), Ranipet, Vellore District confirming the Judgment and Decree dated 04.08.1981 passed in O.S.No.167 of 1981 on the file of the District Munsif, Sholinghur. 2. A brief fact leading to filing of this second appeal is as follows: (i) The suit lands admittedly belong to three plaintiffs. The first plaintiff is the widow. The second and third plaintiffs are the sons of Masilamani Mudaliar. (ii) The plaintiffs are the owners of the suit properties detailed in schedule "A" to an extent of A.12.08C in Survey Nos.55/1 and 55/2, with a well in Survey No.55/1, Ocheri village, Arakkonam Taluk. The plaintiffs leased out the suit properties to one Kistappa Naicker, the defendant on 21.7.1967 on a yearly rent of Rs.2,000/- payable in two instalments by executing the lease deed (Muchilika) for two years and undertook to raise paddy crops alone only and not to raise any other crops in the suit land. As per the lease (Muchilika), the said suit properties were handed over to the defendant, Kistappa Naicker. Since the said Kistappa Naicker had executed the lease deed (Muchilika) for a period of one year, he did not execute the new lease deed (new Muchilika) for the second year. As the defendant did not execute a new Muchilika, he was not permitted to cultivate the land under the Muchilika already executed in favour of the plaintiffs. Therefore, the defendant has to deliver the possession of the suit properties to the plaintiffs at the end of the first year of the leased deed (Muchilika), but he has not done so. (iii) It was also averred in the plaint that the defendant did not pay the rent amount as agreed by both sides in the lease deed (Muchilika). But, the defendant has continuously occupied the land and raised plantain crops in 10 acres of land, sesame in one kani, groundnut in two acres and also raised paddy in a small area of one Kani and thus, the defendant has violated the terms and conditions of the lease deed (Muchilika). It is also averred that the land was not properly manured for raising these crops. It is also averred that the land was not properly manured for raising these crops. As a result, the crops raised in the land would seriously affect the fertility of the soil. Moreover, the defendant has also sub leased the suit lands for the cultivation of sugarcane and plantains under the pretext of engaging hired labourers. Further, the defendant and his family members did not cultivate the suit lands because his sons were students and his daughters are living with their husbands outside the village. Therefore, under such circumstances, the defendant is not entitled to the benefits under the Cultivating Tenants and Protection Act, as he is not putting his physical labour by cultivating the suit lands as defined under the Act. The defendant has also defaulted to pay the lease amount to the plaintiffs, hence, he has filed a suit in O.S.No.519 of 1971 for the recovery of the rent amount and for the damages from 1971-1973 on the file of the District Munsif, Sholinghur and the same is pending. The plaintiffs are entitled to claim damages from the defendant as the defendant continued to be in possession of the property in violation of the agreement and raising commercial crops in the suit properties for the period 1971 – 1972 and 1972 – 1973. Hence, the plaintiffs filed a suit for delivery of possession of the property and to pay a sum of Rs.7,000/- for damages. (iv) The defendant has filed a detailed written statement stating that he has admitted the reltaionship of the landlord and the tenant under the lease deed dated 21.7.1967 on a yearly rent of Rs.2,000/-, but he denied the contents of the lease deed that except the paddy crops, no other crops should be cultivated in the suit properties. Even if anything is found in the lease deed dated 21.7.1967, there has been a material alteration because no restriction whatsoever has been imposed at the time of execution of the lease deed dated 21.7.1967 with regard to the cultivation of the land by raising any crops. On that basis, the defendant pleaded that there is no violation in terms of the lease deed. (v) Further, in respect of paying lease amount it is also pleaded that the defendant is regularly paying the lease amount and no default has been made in respect of paying the lease amount. On that basis, the defendant pleaded that there is no violation in terms of the lease deed. (v) Further, in respect of paying lease amount it is also pleaded that the defendant is regularly paying the lease amount and no default has been made in respect of paying the lease amount. Therefore, the defendant is entitled to raise any crops in the suit properties. The defendant also denied that he raised plantain crops in 10 acres of land and groundnuts in 2 acres of land etc. Hence, the defendant is entitled to the benefits under the Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act 1972. (vi) The defendant also submitted that the lease amount due from 1.7.1971 to 30.6.1972 was of Rs.2,000/-. Out of the said amount, he paid a sum of Rs.980.75 on 5.7.1973 leaving the balance amount of Rs.1019.95 and the same was deposited in I.A.No.1429 of 1972 in O.S.No.519 of 1971 as per Sections 3 and 4 of the Madras Cultivating Tenants Arrears of Rent Relief Act. It was also further pleaded that the plaintiffs are not entitled to claim any damages against the defendant and the Civil Court has no jurisdiction for ordering delivery of possession, since the the defendant is a cultivating tenant. Under such circumstances, the trial Court has framed the following issues: "1. Are the plaintiffs not entitled to recover possession of the properties from the defendant? 2. Is the defendant a cultivating tenant and entitled to the benefit of the said Act? 3. What is the damages if any due to the plaintiffs and for what amount and for what period is he entitled for damages? 4. Was the lease deed materially altered in respect of the nature of the crops to be revised in the leased property? 5. Has the defendant raised plantains and sugarcane crops in the leased property? 6. To what other relief if any of the plaintiffs are entitled to?" 3. The trial Court has examined the second plaintiff as P.W.1 and also examined other witnesses as P.Ws.2 to 5 and marked Exhibits from A.1 to A.23. On the side of the defendants, the trial Court has examined the defendant Kistappa Naicker as D.W.1 and also marked Exihibits from B.1 to B.8. The trial Court has examined the second plaintiff as P.W.1 and also examined other witnesses as P.Ws.2 to 5 and marked Exhibits from A.1 to A.23. On the side of the defendants, the trial Court has examined the defendant Kistappa Naicker as D.W.1 and also marked Exihibits from B.1 to B.8. The suit properties consist of two items i.e. to an extent of A.12.08C in Survey Nos.55/1 and 55/2, with a well in Survey No.55/1 excepting 11 acres and 12 cents and 96 cents respectively at Ocheri village, Arakkonam Taluk. The trial Court after completion of the enquiry has come to the conclusion that P.W.2 was cultivating a portion of the suit properties by lease under P.W.3 Rajabather. It was also found that the defendant also was a lessee in respect of the portion of the suit properties under P.W.3 Rajabather. Though this fact was denied by the defendant, Ex.A.10, the post card written to the defendant by one Rajabather, shows that Rajabather was in the management of the suit properties and the defendant was cultivating a portion of the suit properties under P.W.3 Rajabather. However, though the defendant admits that he became a tenant in respect of the suit properties, he stoutly denied the execution of Ex.A.6, the lease deed (Muchilika) by the defendant in favour of the first plaintiff. Ex.A.6 contains a condition that the defendant should raise paddy alone in the suit properties. Even though the defendant has denied the genuiness of the signature found in Ex.A.6, the lease deed, the same was sent to the Handwriting Expert for comparison and a report was also received from the Handwriting Expert. The report received from the Handwriting Expert clearly reveals the fact that the signature found in Ex.A.6, the lease deed has been written by the defendant himself only. On this basis, the trial Court has come to the conclusion that the Ex.A.6, the lease deed is a genuine document and held that the defendant has committed default in violating the terms and conditions of the lease deed and the defendant should not cultivate any crops except paddy in the suit properties. 4. On the above arguments advanced by the defendant that once the suit properties were leased out by the plaintiffs for agricultural purpose to the defendant to raise crops, the trial Court has relied upon the adangal marked in the suit. 4. On the above arguments advanced by the defendant that once the suit properties were leased out by the plaintiffs for agricultural purpose to the defendant to raise crops, the trial Court has relied upon the adangal marked in the suit. The Adangal shows that plantains and sugarcanes were raised in the portion of the suit properties. 5. In respect of the issue whether the defendant as the cultivating tenant, is entitled to the benefit under Tamil Nadu Cultivating Tenants Protection Act, 1955, it is found that the defendant should have contributed his own physical labour or that of a member of his family in the cultivation of the suit properties, but, there is no acceptable evidence to show that the defendant personally cultivated the entire extent of 12 acres of the suit lands. Further, even though the evidence of P.Ws. 1 to 3 shows that the defendant who is residing in Kaveripakkam which is 3 miles away from the suit properties would come to the suit properties with hired labour, it was held that the plaintiff/appellant was unable to establish sub-lease however, the trial Court has held that the defendant is not entitled to the benefit conferred by the Tamil Nadu Cultivating Tenants and Protection Act, since the defendant is not cultivating by putting his physical labour as defined under the Act and on that basis, the trial Court has passed a decree in favour of the plaintiffs. Further, in respect of the claim of damages at the rate of Rs.3,500/-per annum is concerned, the trial Court has held that the defendant has not produced any material evidence to show that the claim made by the plaintiff is excessive and hence, the claim of damages at the rate of Rs.3,500/- per annum was found to be reasonable and hence, the plaintiffs are entitled to a sum of Rs.7,000/- for two years with interest from the date of filing of the suit. Aggrieved by the same, an appeal was preferred in A.S.No.2 of 2002 on the file of the Additional District and Sessions Judge (Fast Track Court No.II), Ranipet, Vellore District. During the pendency of the appeal, the defendant Kishtappa Naicker died. Aggrieved by the same, an appeal was preferred in A.S.No.2 of 2002 on the file of the Additional District and Sessions Judge (Fast Track Court No.II), Ranipet, Vellore District. During the pendency of the appeal, the defendant Kishtappa Naicker died. Therefore, Uthirani Ammal, the wife of Kishtappa Naicker and sons and daughters of Kishtappa Naicker were impleaded as appellants by filing an Application in I.A.No.6 of 2002 in A.S.No.2 of 2002 and the same was allowed by the order dated 22.10.2002. The appellants also filed I.A.No.99 of 2002 in A.S.No.2 of 2002 under Order 41 Rule 27 for reception of additional evidence, the evidence being the order dated 30.3.1999 to show that the defendant was a cultivating tenant under the provision of the Tamil Nadu Agriculturalist (Record of Rights) Act as recorded by the Record Officer and one another order dated 8.8.2001 passed by the Revenue Court, Cuddalore confirming the order of the Record Officer under the provisions of the Tamil Nadu Agriculturist (Record of Rights) Act, however, the first appellate Court by dismissing the appeal, confirmed the judgment and decree passed by the trial Court holding that the defendants cannot claim to be a cultivating tenant so as to entitle to the provisions of the Tamil Nadu Cultivating Tenants and Protection Act, 1955. As against the concurrent judgment renderred by both the Courts, the present second appeal has been preferred before this Court. 6. Heard Mr.S.K.Raghunathan, learned counsel appearing for the appellants and Mr.T.D.Vasu, learned counsel appearing for the respondents 2 to 4. 7. At the time of admission of the above second appeal, the following substantial question of law was framed: "Whether the suit for recovery of possession is maintainable in a civil Court especially when the defendant has been declared as a cultivating tenant by the authorities constituted under the Tamil Nadu Agriculturalist (Record of Tenancy) Rights Act?" 8. Mr. S. K. Raghunathan, learned counsel appearing for the appellants, while addressing on the substantial question of law would plead that the suit for recovery of possession filed by the plaintiffs is not maintainable by the Civil Court especially, when the defendant has been declared as cultivating tenant by the authorities under the Tamil Nadu Agricultural Land (Record of Tenancy) Rights Act. 9. 9. It was further pleaded that when the defendant has already been declared by the Record Officer as the cultivating tenant, the cultivating tenant is entitled to the protection given under Section 3 of the Tamil Nadu cultivating Tenants Protection Act. In such circumstances as the deceased Kistappa Naicker was recorded as a cultivating tenant by the authority constituted under the Tamil Nadu Agricultural Land (Record of Tenancy) Rights Act the same is deserved to be accepted, resultantly, it should be held that no suit is maintainable as civil Court's jurisdiction is ousted. 10. On the other hand, the learned counsel for the respondents would submit that the appellants are taking completely inconsistent stand from one Court to another Court, for, when the suit was filed alleging that there was a violation of Ex.A.6, the lease deed (Muchilika) dated 21.7.1967 by breaching the terms of the lease deed by cultivating cash crops like plantain crops in 10 acres and groundnut in one acre instead of cultivating paddy alone, the cash crops so raised by the defendant in the suit lands belonging to the plaintiffs have seriously affected the fertility of the soil and seriously affected the utility of the suit properties for future cultivation of any crops and that the defendant has also sub leased the suit properties for cultivation of sugarcane and plantain with the help of hired labourers. The defendant by filing a detailed written statement before the civil Court opposed the suit denying the very execution of the lease deed dated 21.6.1967 Ex.A.6, When he himself in his written statement as well as before the trial Court had taken specific stand that there was no such lease deed dated 21.6.1967 Ex.A.6, he cannot approbate and reprobate by repeatedly changing his stand frequently. This inconsistent plea taken by the defendant/appellant shows that he has not come to the Court with clean hands inasmuch as when he denied the very existence of the lease deed dated 21.6.1967 in and by which he has derived the relationship of Tenant he cannot make any attempt to take any advantage from the orders of the revenue authorities as cultivating tenant. Further, it was pleaded that by the time the trial Court gave its judgment on 4.8.1981 there was no order passed by the Record Officer because the Record Officer has passed his first order only on 20.6.1983 followed by the Revenue Divisional Officer on 7.4.1985 confirming the same, hence, it was pleaded that judgment of the trial Court dated 4.8.1981 ordering delivery of suit property on the basis of violation of lease deed dated 21.7.1967 is legally in order. 11. I have heard the learned counsel on either side. 12. Admittedly, the defendant and the plaintiffs are the parties to Ex.A.6, the lease deed dated 21.6.1967 in and by which the deceased defendant No.1 had agreed to take lease of the suit land from the plaintiffs on a yearly rent of Rs.2,000/- payable in two instalments. In the said lease deed, the defendant also had undertaken that he would raise only paddy crops but not to raise any other crops in the suit properties. When the factum of execution of lease deed itself was denied by the defendant, the trial Court by going into the veracity and genuiness of the lease deed dated 21.6.1967 Ex.A.6, has given a clear cut finding clearly disbelieving the case of the defendant and accepting the case of the plaintiffs that the suit property was leased out by the lease deed dated 21.6.1967 for the annual rent of Rs.2,000/-payable in two instalments to raise paddy crops. When the defendant has denied the fact that there was Ex.A.6, the lease deed dated 21.6.1967 between the plaintiffs and the defendant and thereby denied the status as a cultivating tenant, absolutely it is not open to the defendant to canvass the status as a cultivating tenant which he denied by filing additional written statement and also by let-in evidence before the trial Court. Therefore, the defendant, who has played the tricks of Approbate and Reprobate depending upon different timings is not entitled to say that he is the cultivating tenant on the basis of the records issued by the Record Officer namely, Revenue Authorities. Therefore, the defendant, who has played the tricks of Approbate and Reprobate depending upon different timings is not entitled to say that he is the cultivating tenant on the basis of the records issued by the Record Officer namely, Revenue Authorities. Further, it has been a settled law that a person who is coming to the Court with clean hands, alone is entitled to get the relief of equity, but i n the present case though the plaintiff and the defendant have executed the lease deed dated 21.6.1967, Ex.A.6, surprisingly denied the very execution of the lease deed, hence, for the reason that once he has denied that he was not a cultivating tenant before the trial Court, after loosing his case before the trial Court, it is not open to set up any new case before this Court that the Civil Court has no jurisdiction since he is a cultivating tenant on the basis of records issued by the Revenue authorities. In this view of the matter, both the Courts below concurrently held against the appellant. Hence, I do not find any error or irregularity in the concurrent findings. 13. That apart, there has been a finding against the appellant that the defendant not only defaulted in paying the lease amount but he has also violated the very lease deed Ex.A.6. In view of all these findings, which are decided against the defendant, this Court is fully satisfied that the appellants are no longer entitled to seek the protection under the Tamil Nadu Cultivating Tenants Protection Act. 14. Besides, it is to be noted that there is no doubt on the question that the civil Court has no jurisdiction to deal with the question whether the person is a cultivating tenant or not. Because such a question has to be decided only by the authorities constituted under the Act. But the fact in issue raised herein is some thing different that the appellant herein who is under the status of cultivating tenant deliberately denied the very execution of the lease deed dated 21.6.1967 therefore, the person who denied the status as a cultivating tenant cannot once again seek to gain the benefit of the Act. 15. It is also significant to note that Section 16-A of the Tamil Nadu Agricultural Land (Record of Tenancy) Right Act, does not apply to where there is no relationship of landlord and tenant. 15. It is also significant to note that Section 16-A of the Tamil Nadu Agricultural Land (Record of Tenancy) Right Act, does not apply to where there is no relationship of landlord and tenant. In the said Act, it is clearly stated that the civil Court has no power to decide as to whether the land is under tenancy. The defendant had sufficiently denied the relationship of the landlord and tenant by disputing the very execution of Ex.A.6, the lease deed dated 21.6.1967, therefore, this Court, has no hesitation to hold that the appellants are neither entitled for any indulgence under the protection of the Act nor from this Court. 16. The defendants/appellants herein, after filing of the plaint by the landlord, filed a first written statement, dated 10.09.1973, admitting the relationship as a tenant under the first plaintiff on the basis of the lease deed, dated 21.07.1967, on a yearly rent of Rs.2,000/- per annum. But, surprisingly, the defendants again filed an additional written statement taking a different stand than the one in the first written statement by denying the execution of lease agreement, dated 21.07.1967. It was also pleaded that the plaintiffs have created this document with the intention of evicting the defendants from the suit lands. Under these circumstances, when the matter was taken up for trial, the learned trial Court, finding that the defendants disputed the genuineness and signatures found in the Ex.A6, lease deed, chose to send the lease deed to an handwriting expert for comparison and a report thereon, and thereafter, the expert has sent a report to the effect that the signatures found in the Ex.A6 had been written by the defendant himself. Further, the attester of Ex.A6, namely, P.W.1 swore that the defendants executed Ex.A6. Under these circumstances, the Trial Court, after considering the evidence both oral and documentary placed before it, further went on to record that nothing was elicited from the evidence of P.W.2 to render him an unreliable witness. In fact, the other attester of Ex.A6, one Kali, was found employed under the defendants. Therefore, by properly taking note of these facts, the trial Court has come to the conclusion that Ex.A6 is a genuine document executed by the defendants. In fact, the other attester of Ex.A6, one Kali, was found employed under the defendants. Therefore, by properly taking note of these facts, the trial Court has come to the conclusion that Ex.A6 is a genuine document executed by the defendants. On this basis, by giving a categorical finding that Ex.A6, lease deed, is a genuine document, accepted the case of the plaintiffs that the defendants had violated the terms and conditions mentioned in the lease deed and as per the lease deed he should not raise any crops excepting paddy crops in the suit land. In addition to the evidence adduced by the PW1 to PW3 to the effect that the defendants violating the terms and conditions, had cultivated plantain sugar cane , groundnut etc., and as a result, the suit lands had lost its fertility, further evaluating from the Ex.A19, dated Nil --copy of the Adangal of the Ocheri Village for fasli years 1375 to 1380 and Exs.A20 and A21, dated 04.09.1975 and 20.02.1978 respectively -- Adangal extract for fasli years 1383 and 1384, and 1384 and 1386, of the Ocheri Village, which showed that the plantain and sugar canes were also raised in the operation of the suit property, rightly reached its conclusion that the defendants/appellants have violated the lease deed. 17. From these backgrounds, to answer the plea of ouster of civil Court jurisdiction, it is useful to refer a judgment of this Court in Arumugam and another v. Sri Dharmapuram Mutt at Dharmapuram ( 1996 (I) CTC 90 ), wherein it was held thus in para 5;- "In view of the above findings of mine, the plea or objection raised to the judgment and decree of the lower appellate court based on Section 16-A of the Act also pales into insignificance. Even that apart, the embargo or ouster of jurisdiction under Section 16-A of the Act has been held to be not absolute in terms under all circumstances. Even that apart, the embargo or ouster of jurisdiction under Section 16-A of the Act has been held to be not absolute in terms under all circumstances. The very Full Bench judgment of this Court in Periathambi goundan vs. District Revenue Office (FB) (AIR 1980 Madras 180) relied upon for the appellant, while considering the ambit, amplitude and extent of interdict imposed by the said section has in categorical terms declared the position that the controversy as to whether a particular piece of land has been let out for cultivation by a tenant or not being one constituting the jurisdictional issue cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act alone since to hold so would amount to permitting statutory authorities to assume jurisdiction erroneously. As a matter of fact, in some of the subsequent decisions of this Court rendered, taking into account even the ratio of the above Full Bench judgment, it was held that the authorities under the Act cannot be said to have exclusive jurisdiction to decide the issue as to whether the lands have been let under a tenancy agreement and the civil Court is not totally precluded from dealing with a claim of a landlord in any and every or all circumstances. In the light of the very case pleaded, in my view, the question of relationship of landlord and tenant cannot be said to subsist and the lands cannot be said to have been held by the first defendant or defendants under a tenancy agreement express or implied. In view of the above, the question of applying the provisions contained in Section 16-A of the Act to the case on hand does not arise at all." 18. From the above judgment, it is seen that once the appellant denied the existence or the execution of the lease agreement dated 21.7.1967 to escape the termination of the tenancy for the violation of lease deed, the existence of relationship of landlord and cultivating tenant automatically ceased to exist. Further, when the trial Court passed its judgment in O.S.No.167 of 1981 on 4.8.1981, there was no such order of Record office since the Record Officer has passed his order only on 20.6.1983 followed by another order passed by the Revenue Divisional Officer on 7.9.1984. Further, when the trial Court passed its judgment in O.S.No.167 of 1981 on 4.8.1981, there was no such order of Record office since the Record Officer has passed his order only on 20.6.1983 followed by another order passed by the Revenue Divisional Officer on 7.9.1984. These two dates admittedly support the findings of the trial Court to have its jurisdiction to go into the execution of lease deed and violation thereof committed by the appellant. Therefore, it would be a futile exercise to find fault with the jurisdiction of the trial Court. Under these context, the embargo or the ouster of jurisdiction of civil Court under under 16 A of the Act is not absolute, for, the very Full Bench of this Court in AIR 1980 MS 180 has also made it clear that the authorities under the Act cannot be said to have exclusive jurisdiction to decide the issue as to whether the lands have been let under a tenancy agreement and the civil Court is totally precluded from dealing with a claim of a landlord in any and every or all circumstances. 19. Further, it is a well settled legal position that a Court can always refuse any relief where the state of things complained of is the outcome of the plaintiff's own conduct and where he does not satisfy the Court that his own acts and dealings in the matter have been fair and honest. The conduct of the plaintiff seeking the equitable relief must be fair and equitable and should not be dishonest. 20. In the present case admittedly, the defendant having become a tenant on the basis of lease deed dated 21.7.1967 in respect of 12 acres of suit land has defaulted from paying monthly rent for which, the landlord/plaintiff filed a suit for recovery of his rent. It is also an admitted fact that the defendant having taken a huge extent of land from the plaintiffs has started paying the rent only before the trial Court, where the civil Suit in O.S.No.519 of 1971 filed for recovery of rent amount for the year 1971-1973 is pending. It is also an admitted fact that the defendant having taken a huge extent of land from the plaintiffs has started paying the rent only before the trial Court, where the civil Suit in O.S.No.519 of 1971 filed for recovery of rent amount for the year 1971-1973 is pending. Consequently, he has also committed breach of the lease deed, for which, the present suit came to be filed wherein the defendant by playing hide and seek at one place admitted that he was a tenant and at the same time, he denied the very existence and execution of the lease deed dated 21.7.1967 and thereby loosing the very relationship of landlord and tenant. In that view of the matter, the appellants do not deserve any indulgence from this Court. 21. In view of the above said discussions and in the light of the above said judgment, the second appeal is liable to be dismissed. Consequently, connected C.M.P.No.2212 of2006 and M.P.No.1 of 2010 are closed. The second appeal is dismissed accordingly. There is no order as to costs.