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2012 DIGILAW 746 (MAD)

Jayaraman v. Eswaran

2012-02-10

R.KARUPPIAH

body2012
JUDGMENT ( 1. ) THIS appeal is directed against the judgment and decree passed by the learned Subordinate Judge, Karur, dated 01.08.1988 and made in A.S.No.74 of 1986 whereby, the decree and judgment passed by the learned District Munsif Court, Karur in O.S.No.612 of 1984 was set aside. ( 2. ) RESPONDENT and his father namely, Rangasamy Gounder (now deceased) had instituted original suit for the relief of permanent injunction by stating that the suit properties originally belonged half share each to Narasingaperumal Konar and Rengasamy Konar and both of them had leased out their respective shares to Rengasamy Gounder, who was first plaintiff in the suit, by way of two registration deeds and as per the lease deeds, the first plaintiff should pay a sum of Rs.825/- and also deliver 50 cocoanuts and straw to the value of Rs.10/- per year and the possession also given to the 1st plaintiff from the date of lease and he had paid rent regularly, as cultivating tenant. Defendants 1 and 2 are son of Narasingaperumal Konar and defendants 3 and 4 are sons of Rengasamy Konar. Narasingaperumal Konar died 10 years ago. The 2nd plaintiff is the only son of first plaintiff. As the first plaintiff become aged and he was not able to cultivate the suit lands, the first plaintiff, with full consent and knowledge of the defendants and Narasingaperumal Konar, had subleased the suit lands to his son/2nd plaintiff about 15 years ago and since then, the second plaintiff alone is in possession and enjoyment of the properties, as sub- tenant. The 2nd plaintiff alone contributing his own physical labour and the 2nd plaintiff's name was also recorded as cultivating Tenant in the Record of Tenancy Rights Register. The 2nd plaintiff alone is exclusive possession enjoyment and cultivating the lands, as cultivating tenant and in the 'Adangal Extract', the 2nd plaintiff's name has been entered as Cutivator in respect of the suit properties. The 2nd plaintiff has been raising sugar-cane crops. The defendants are also aware of the above said facts. The first plaintiff has paid the lease amount to the defendants regularly and there is no arrears. When the plaintiffs wanted to make payments towards current lease amount, the defendants refused to receive the same by saying that he should vacate the properties, since they intended to sell the same. The defendants are also aware of the above said facts. The first plaintiff has paid the lease amount to the defendants regularly and there is no arrears. When the plaintiffs wanted to make payments towards current lease amount, the defendants refused to receive the same by saying that he should vacate the properties, since they intended to sell the same. The plaintiffs informed that they cannot vacate the suit properties, since they are entitled to the benefits of the Tamil Nadu Cultivating Tenants' Protection Act, 25/55. Defendants threatened the plaintiffs that they would be evicted by force and hence, the plaintiffs filed this suit for injunction. ( 3. ) APPELLANTS/defendants had admitted that the suit properties were originally belonged to half share each to Narasingaperumal Konar and Rengasamy Konar and they leased out to the 1st plaintiff on 09.04.1955, under registered lease deeds. But, the appellants/defendants had contended that subsequently the 1st plaintiff executed lease deeds to defendants 1 to 4, who are son of the above said owners of properties and last lease deeds executed on 17.07.1979 and 21.07.1979 respectively and as per the lease deeds rent payable by the 1st plaintiff to them was each Rs.1100/- and also 100 coconuts per year and arrears of rent for the period 1981-82 to 1983-84. APPELLANTS/defendants had denied the allegation of sub-lease between the 1st plaintiff and his son 2nd plaintiff and also denied that the 2nd plaintiff is in absolute possession and enjoyment of the properties, as cultivating tenant and registered his name in the Record of Tenancy Rights and it is without the knowledge of the appellants/defendants and hence, not bind the appellants/defendants. Further it is contended that the alleged lease deed between both the plaintiffs may not help the 2nd plaintiff. Further, the appellants/defendants had contended that 2nd plaintiff is not a cultivating tenant within the meaning of Act 22/1955 and therefore, not entitled to the benefits of the above said Act and hence, the plaintiffs are not entitled any relief. ( 4. Further, the appellants/defendants had contended that 2nd plaintiff is not a cultivating tenant within the meaning of Act 22/1955 and therefore, not entitled to the benefits of the above said Act and hence, the plaintiffs are not entitled any relief. ( 4. ) THE learned District Munsif, Karur, has framed as many as five issues and during pendency of the Suit, the 1st plaintiff, who is the father of the 2nd plaintiff, was died and considering the evidence of PW.1 and Exs.P1 to P8 and DW1 and B1 and B2 finally held that the second plaintiff is in possession of the suit properties, but his possession is only as a trespasser, since the 2nd plaintiff had not proved the alleged lease in his favour and therefore, dismissed the suit. ( 5. ) AS against the above said decree and judgment of the trial Court, the second plaintiff had filed an appeal before the Sub-Court, Karur in A.S.No.74 of 1986 and during the pendency of the appeal, the respondent/2nd plaintiff has filed M.P.No.230 of 1987 to receive three additional documents and the above said petition was allowed on 01.08.1988 and marked the above said documents, as Exs.P9 to P11. After considering the oral and documentary evidence of both sides, the learned first appellate Judge held that, as per the Tamil Nadu Cultivating Tenants' Protection Act, the respondent/2nd plaintiff had registered his name as cultivating tenant and the first plaintiff, who is the father of the 2nd plaintiff also died and hence, the second plaintiff, as son of the first plaintiff, having possession of the properties, as cultivating tenant and his possession is lawful possession and therefore, the second plaintiff is entitled to permanent injunction and hence, allowed the first appeal and set aside the decree and judgment of the trial Court. ( 6. ) AS against the judgment and decree of the first appellate Court, the appellants/defendants 1 to 4 have preferred this second appeal before this Court and during the pendency of the appeal, appellants 1, 2 and 4 were died and appellants 5 to 12 were impleded, as legal heirs of the above said appellants. ( 7. ( 6. ) AS against the judgment and decree of the first appellate Court, the appellants/defendants 1 to 4 have preferred this second appeal before this Court and during the pendency of the appeal, appellants 1, 2 and 4 were died and appellants 5 to 12 were impleded, as legal heirs of the above said appellants. ( 7. ) AFTER hearing and perusal of records, the second appeal has been admitted on the following substantial question of law:- "Whether the lower appellate Court is right in granting permanent injunction in favour of the sub tenant when the tenancy agreement originally entered into between the original tenant and landlord had not terminated and as such the inclusive definition in Sec.2(aa) of Tamil Nadu Cultivating Tenants Protection Act will not apply in view of the Full Bench Judgment reported in AIR 1975 Madras 227" ( 8. ) LEARNED counsel for the appellants/defendants mainly contended that the first appellate Court has erred in holding that the second plaintiff is the cultivating tenant and the learned first appellate Judge has failed to see that the appellants were not given any notice in the application filed by the 2nd plaintiff to record his name as a cultivating tenant and as such, it is not binding on them. Further, it failed to consider the fact that the 2nd plaintiff had not produced any document to show that he is a sub-tenant and also erred in admitting the additional documents without giving opportunity to the appellants/defendants and even it is taken as true, the 2nd plaintiff is not entitled to any relief since tenancy between 1st plaintiff and defendants are not terminated and also failed to see that in a suit for injunction, the civil Court has no jurisdiction to go into the question that in what capacity the person is in occupation. Further, the learned counsel for the appellants contended that the alleged recording the name of 2nd plaintiff in the tenancy records by the Tahsildar is without notice to the appellants and in the above circumstances, it is open to the civil Court to consider in what capacity the 2nd plaintiff is in occupation and therefore, the learned Sub-ordinate Judge erroneously passed the above said decree and judgment. ( 9. ( 9. ) PER contra, the learned counsel for the respondent/2nd plaintiff has submitted that the properties are in possession of the 2nd plaintiff on the basis of tenancy agreement between plaintiffs 1 and 2 with consent of and knowledge of owners of lands and also 2nd plaintiff's name was entered in the Record of Tenancy Register, registered as per Tamil Nadu Cultivating Tenants Protection Act and therefore, the 2nd plaintiff is entitled to get the relief of injunction, as he is in possession of the properties, as a cultivating tenant. ( 10. ) ADMITTEDLY, half share each in the suit properties originally belonged to one Narasingaperumal Konar, who is the father of defendants 1 and 2 and Rengasamy Konar, who is the father of the defendants 3 and 4 respectively. It is also admitted that the 1st plaintiff, who is the father of the second plaintiff, was became a cultivating tenant under Narasingaperumal Konar and Rengasamy Konar, as per Exs.A1 and A2, registered lease deeds, dated 09.04.1955 respectively and accordingly, the first plaintiff was in possession as a lessee in the above suit properties. ( 11. It is also admitted that the 1st plaintiff, who is the father of the second plaintiff, was became a cultivating tenant under Narasingaperumal Konar and Rengasamy Konar, as per Exs.A1 and A2, registered lease deeds, dated 09.04.1955 respectively and accordingly, the first plaintiff was in possession as a lessee in the above suit properties. ( 11. ) ON the side of the respondent/2nd plaintiff it is contended that, since the first plaintiff has become aged and unable to cultivate the suit lands, the first plaintiff, with full consent and knowledge of the appellants/defendants and Narasingaperumal Konar, had subleased the suit lands to the 2nd plaintiff about 15 years ago, since then, the second plaintiff alone is in possession and enjoyment of the properties and the 2nd plaintiff contributing his own physical labour and that of members of his family in the cultivation of the suit lands and the 2nd plaintiff's name is also recorded as Tenant in the Register of Record of Tenancy Rights and the defendants are also aware of the above fact and to prove the same, respondent/2nd plaintiff has filed Exs.A3 and A4, copies of 'Adangal Extracts', Exs.A5 and A6 Sugarcane agreements to sell the sugarcane, Exs.A7 and 8, the extracts of tenancy records in the name of 2nd plaintiff and also filed the additional documents Ex.9, copy of Adangal extract for 1392 to 1396 Pasali, Ex.P10, notice dated 24.08.1970 and Ex.P11, order copy of recording tenancy and hence, the respondent/2nd plaintiff is in possession as cultivating tenant, which was recognized by the competent authority and therefore, no illegality in the first appellate Court's judgment and decree. ( 12. ) ON the other hand, the learned counsel for the appellants has mainly contended that the deceased first plaintiff alone was the cultivating tenant in half share each of the suit properties. As per the lease deeds executed by the 1st plaintiff and he had been regularly paying the rent to the respective lessors without any default and the last lease deeds had been executed in favour of the defendants by the first plaintiff on 17.07.1979 i.e., under Ex.B1 and the defendants 3 and 4 on 21.07.1979, under Ex.B2 and the first plaintiff was in arrears of rent for the years 1981-82 to 1983-84. Further, the appellants had denied the sub-lease arrangement interse between the 1st plaintiff and 2nd plaintiff and the knowledge attributed to Narasingaperumal Konar and the defendants. Further, it is also contended that the second plaintiff is not in possession and enjoyment of the properties as a sub-tenant under the 1st plaintiff and if at all the 2nd plaintiff is contributing his physical labour and helping his father that will not clothe him any rights as a lessee as long as his father, 1st plaintiff was alive. Further, the learned counsel for the appellants has contended that the 2nd plaintiff's name is recorded as a tenant in the Record of Tenancy Court was surprised to these defendants and anything has been done without the knowledge of the defendants behind the back that will not bind these defendants. It is also contended that the registered lease deeds between the plaintiffs may not helpful to the 2nd plaintiff and there is nothing to show that the second plaintiff is a sub-lessee under the first plaintiff and hence, the respondent/2nd plaintiff is not entitled to any relief. ( 13. ) AS already stated, plaintiffs had filed the Original Suit only for permanent injunction against the appellants/defendants. The appellants/defendants have not disputed that the suit properties were in the possession of the first plaintiff and then now in the possession of second plaintiff. But on the side of the appellants it is contended that the possession of the second plaintiff is an unlawful possession, since the first plaintiff alone was the lessee under appellants/defendants and therefore, the 2nd plaintiff is not entitled to the relief of injunction, as against the owners of the suit lands. ( 14. But on the side of the appellants it is contended that the possession of the second plaintiff is an unlawful possession, since the first plaintiff alone was the lessee under appellants/defendants and therefore, the 2nd plaintiff is not entitled to the relief of injunction, as against the owners of the suit lands. ( 14. ) THE learned counsel for the respondent/2nd plaintiff has submitted that already the second plaintiff filed necessary application before the competent authority to register his name as a cultivating tenant under the provisions of the Tamil Nadu Cultivating Tenants' Protection Act, 1955 and in which notices also have been served to the appellants/defendants and to prove the same Ex.A10 is marked as additional documents and after perusal of records, the competent authority has registered the second plaintiff's name, as cultivating tenant in the Tenancy Register, as per Ex.A11 and the appellants/defendants had not challenged the above said proceedings by way of appeal, as per the provisions stated in the above said Act and the above said order passed by the competent authority has become final and therefore, the possession of the 2nd plaintiff is lawful possession. ( 15. ) ON perusal of the documents filed by the plaintiffs, particularly, Exs.A10 reveals that in the tenancy proceedings, necessary notices were served to the appellants on 24.08.1970 and therefore, as rightly contended by the learned counsel for the respondent, the competent authority has issued necessary notice to the concerned land owners and then passed order to record the name of respondent/2nd plaintiff, as cultivating tenant in the Tenancy Register and as against the above said proceedings, the appellants herein has not challenged the same by way of appeal and therefore, the above said order was become final. As per the above said proceedings, the respondent/second plaintiff is a tenant in the said properties under the appellants/defendants. ( 16. ) THE learned counsel for the appellants has mainly contended that the first plaintiff alone is the cultivating tenant under the defendants and the second plaintiff alleged to have been a sub-lessee under the first plaintiff and therefore, the second plaintiff is not entitled to protection under the Tamil Nadu Cultivating Tenants' Protection Act, 1955 and to substantiate the above said contention, he relied on a Full Bench Judgment of this Court in Chandrasekaran Vs. Kunju Vanniar reported in (AIR 1975 MADRAS 227), wherein in paragraph 4, it has been held as follows:- "..... 4. So far as the first part of the learned Judge's reasoning is concerned, we are in agreement because a tenancy necessarily implies a landlord on the one hand and a tenant on the other. But equally to a sub-lessee the protection is traced to the statute. If the sub-lessee continues in possession but the tenancy agreement originally entered into had not terminated, then the inclusive definition may not apply and, therefore, the sub-lessee may not be entitled to protection. If, on the other hand, by the time, the sub-lessee claims protection under the Act the tenancy agreement with his lessor had terminated, then it will be a different matter to which the inclusive definition will have application. Also, the observation of the learned Judge that the lessor cannot confer a higher title than he himself possessed misses the fact, if we may say so with respect, that the conferment of protection is not by any person under a contract but by force of the statutory provision. THE principle that no man can confer upon another a title or right higher than what he himself possessed, will, therefore, have no validity in the application of the inclusive definition of 'cultivating tenant'. In the same ruling in para 2, it is stated as follows:- "By Act IX of 1969, an amendment was introduced bringing within the scope of definition of 'cultivating tenant' a sub-tenant as well" ( 17. ) THE facts of the above said case was that the usufructuary mortgage was created on 2-3-1924. Respondents 1 and 2 were inducted into the land by the usufructuary mortgagee in 1957 as tenants. On 19-6-1964, the mortgage was redeemed. THE mortgagor-owner brought the suit for possession and mesne profits. But, in this case, as already stated, the first defendant is the father of the second defendant and the defendants have accepted the first plaintiff as the cultivating tenant under the predecessor of the appellants/defendants and also these appellants/defendants has not contended that they are in possession till date. Admittedly, the first defendant, who is the father of the second plaintiff, was died in the year 1985 itself. It is not disputed that the possession of the suit lands are with the second plaintiff till date. Admittedly, the first defendant, who is the father of the second plaintiff, was died in the year 1985 itself. It is not disputed that the possession of the suit lands are with the second plaintiff till date. Further, in the plaint itself it is stated that the first plaintiff has become aged and he was not able to cultivate the suit lands and the first plaintiff, with full consent and knowledge of the defendants and Narasingaperumal Konar, had subleased the suit lands to his son/2nd plaintiff. THE appellants/defendants are not denied the above said facts by giving any evidence before the trial Court. Only the secretaries of the defendants alone had given oral evidence and they are also not denied the above said fact. THErefore, the above said fact was not specifically denied by the defendants. Further, the defendants themselves admitted in the written statement that if at all the second plaintiff is contributing his physical labour and helping his father that will not clothe him any right as a lessee as long as his father alive. THErefore, the defendants are not specifically denies the possession of the second plaintiff in the suit properties, but the appellants only contended that if at all 2nd plaintiff is contributing his physical labour and helping his father that will not cloth him any rights but the above said fact was also not proved by reliable evidence. THErefore, the facts of the above said said case differs from this case and hence, the above said decisions not helpful to the appellants. ( 18. ) THE learned counsel for the appellants/defendants also cited another ruling of this Court in Avudaithangammal Vs. Subramania THEvar, etc., and others reported in (1994-1-L.W.82) and contended that respondent/2nd plaintiff has suppressed the facts before the Record of Tenancy Proceedings and without the knowledge of these appellants, the entries have been made in the Tenancy Register and therefore, the second plaintiff is not entitled to say that he is a cultivating tenant under the above said order, as stated in the above said ruling. ( 19. ) THE above said ruling also not helpful to the appellants, since the facts of the case are differs from the present case. In the above said case it is clearly held in para 7, as follows:- 7. ( 19. ) THE above said ruling also not helpful to the appellants, since the facts of the case are differs from the present case. In the above said case it is clearly held in para 7, as follows:- 7. ........On a careful consideration of the circumstances under which Exs.A2 to A5, A10 and A11 have come into existence, it is obvious that these entries have been procured by suppression of facts and by the exercise of fraud. Thus, the entries cannot be pressed into service by the 1st respondent/s in these Second Appeals to claim or project rights against the appellant in respect of the suit properties. " ( 20. ) BUT in this case, the respondent/2nd plaintiff has already applied for entry in the Record of Tenancy Register, as per Tamil Nadu Cultivating Tenants Protection Act, as a cultivating tenant and after giving notice to the defendants/landlords, the competent authority had passed order and made entry in the Record of Tenancy Rights Register, as the second plaintiff is a cultivating tenant in the suit properties. Admittedly, the appellants/defendants have not challenged the above said proceedings so far. ( 21. ) ON the side of the defendants has stated in the written statement that as if the second plaintiff's name is recorded as a tenant in the Record of Tenancy Register, was surprised to these defendants and if anything has been done without the knowledge of the defendants, behind the back, that will not bind the defendants. ( 22. ) ON the side of the appellants have not given any oral and documentary evidence to prove that they are not aware of the tenancy proceedings or notices were not served to them. ONly the secretaries of D1 and D2 and D3 and D4 alone were examined as Dws.1 and 2 and they have not given any evidence regarding service of notice to defendants 1 to 4. No reason has been given for non- examination of appellants/defendants to prove the contention stated in the written statement. ONly the secretaries of D1 and D2 and D3 and D4 alone were examined as Dws.1 and 2 and they have not given any evidence regarding service of notice to defendants 1 to 4. No reason has been given for non- examination of appellants/defendants to prove the contention stated in the written statement. ON the other hand, the 2nd plaintiff had deposed as P.W.1 and also on the side of the 2nd plaintiff has filed relevant official documents Exs.P1 to P8 and P9 to P11 to prove the fact that the father of the second plaintiff is a cultivating tenant from 1955 onwards and then, the second plaintiff, who is the son of the first plaintiff, has become a tenant and applied for register his name, as cultivating tenant in the tenancy proceedings and after giving necessary notice to the lessors, the competent authority has passed orders and the second plaintiff's name was duly entered in the Register and the above said order was not challenged so far and therefore, the above said ruling is not helpful to the appellants, as rightly contended by the learned counsel for the respondent/2nd plaintiff. ( 23. ) THE learned counsel for the respondent/2nd plaintiff has relied on a decision of this Court in Jayakumar, R. vs. P.Kaliyaperumal reported in ( 1999 (II) CTC 202 ), wherein in para 4 it has been held as follows:- "4. .... Under Section 15 of the Tamil Nadu Act 10 of 1969, 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 approved record of tenancy rights shows that as on date an extent of 4.06 acres in survey No.38 in 50, Maharajapuram Vattam, Manalur Village, within the jurisdiction of Revenue Court, Mayavaram is under the cultivation of Thangayal, who is the second respondent in this revision. In view of Section 15 of the Tamil Nadu Act 10 of 1969 this entry shall be presumed to be correct till the contrary is proved or a new entry is lawfully substituted therefor. Any modification or correction in the entry has to be necessarily done only by the hierarchy of officers exercising power under the Tamil Nadu Act 10 of 1969 and not by any other officer exercising power under any other enactment. Any modification or correction in the entry has to be necessarily done only by the hierarchy of officers exercising power under the Tamil Nadu Act 10 of 1969 and not by any other officer exercising power under any other enactment. In other words the preparation of the record of tenancy rights has to be necessarily and exclusively raised and considered only under the provisions of Tamil Nadu Act 10 of 1969 and not under any other enactment. To allow an authority other than an authority acting under Tamil Nadu Act 10 of 1969 to pass an order in the nature of an order challenged in this case, would result in a conflict between a statutory record called Approved Record of Tenancy Rights prepared under the Tamil Nadu Act 10 of 1969 and an order passed by an officer acting under the Tamil Nadu Act 10 of 1969 is a special enactment dealing with the rights of lessor and lessee under that Act, one has to necessarily fall back upon the provisions contained in the Transfer of Property Act. THE rights and liabilities of the lessor and lessee are provided for under Section 108 of the Transfer of Property Act." ( 24. ) AS rightly held in the above said ruling, as per Section 15 of Tamil Nadu Act, 10/1969, entry in the Record of Tenancy Rights Register shall be presumed to be correct, till the contrary is proved. In the present case, the respondent/second plaintiff's name is duly entered in the above said register and the appellants have not challenged the above said order so far and also not proved that the above said entry was obtained fraudulently before the concerned authority without any notice and therefore, the 2nd plaintiff/respondent is a tenant under the appellants/defendants and the above said fact was duly registered by Record of Tenancy Rights Authority in the relevant registers and as per amended Act IX of 1969, sub tenant also cultivating tenant and therefore, the 2nd plaintiff's possession is lawful possession, as contended by the respondent/2nd plaintiff. ( 25. ( 25. ) THE contention of the learned counsel for the appellants that the tenancy agreement originally entered into between the original tenant, namely, the father of the 2nd second plaintiff and the landlords, has not terminated and as such, the respondent/2nd plaintiff is not entitled to claim protection under Section 2(aa) of Tamil Nadu Cultivating Tenants Protection Act, 1955, cannot be accepted, since the 2nd plaintiff is son of 1st plaintiff and the respondent/2nd plaintiff has proved by reliable oral and documentary evidence that he is in possession as a cultivating tenant. On the side of the appellants has not specifically pleaded and proved that tenancy agreements are not terminated and the 1st plaintiff alone was in possession till his death, by reliable evidence. Admittedly, the respondent/2nd plaintiff is in possession and the appellants have not taken any steps to recover the same. ( 26. ) AS already discussed and in view of Provisions of Tamil Nadu Cultivating Tenants' Protection Act and the decisions relied on by the respondent/2nd plaintiff reported in ( 1999 (II) CTC 202 ), (cited supra) the second plaintiff is entitled to get the relief of injunction. Therefore, the judgment and decree of the learned Subordinate Judge, Karur in A.S.No.74 of 1986, setting aside the judgment and decree of the District Munsif, Karur in O.S.No.612 of 1984, is confirmed. ( 27. ) IN the result, the Second Appeal is dismissed. However, there shall be no order as to costs.