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2015 DIGILAW 3301 (MAD)

Marimuthu Mudaliar v. Shenbaga Karayalar (died)

2015-10-08

M.DURAISWAMY

body2015
JUDGMENT : S.A(MD).No.1140 of 1999 arises against the judgment and decree in A.S.No.77 of 1996 on the file of Additional Sub Court, Tenkasi, confirming the judgment and decree passed in O.S.No.295 of 1991 on the file of District Munsif Court, Tenkasi. The plaintiff filed the suit O.S.No.295 of 1991 for declaration, recovery of possession and for mesne profits. The defendants 1 and 3 are the appellants and the third respondent was brought on record as legal representative of the deceased first respondent. The second respondent is the second defendant in the suit. 2. S.A.No.1141 of 1999 arises against the judgment and decree passed in A.S.No.47 of 1996 on the file of Additional Sub Court, Tenkasi, confirming the judgment and decree in O.S.No.294 of 1991 on the file of District Munsif Court, Tenkasi. The plaintiff filed the suit O.S.No.294 of 1991 for permanent injunction. The plaintiff is the appellant and the second respondent is the legal representative of the deceased first respondent, who is the defendant in the suit. 3. It is the case of the plaintiff in O.S.No.294 of 1991 that he is the cultivating tenant in respect of the suit properties and therefore, the suit filed by the respondent/plaintiff in O.S.No.295 of 1991 for recovery of possession is not maintainable. The respondent/defendant contended that the appellant is not a cultivating tenant in respect of the suit properties and he can be termed as cultivating tenants only in respect of S.Nos.1142/3, 1143/2A and 1137/2B. 4. The respondent has filed the suit O.S.No.295 of 1991 for declaration, recovery of possession and mesne profits in respect of S.Nos.1137/2B, 77/3, 106/1 and 1175/1B, 2B. Out of the four survey numbers mentioned in the plaint by the respondent, the appellant in in S.A.No.1141/1999 was recorded as cultivating in respect of the land in S.F.No.1137/2B. In support of his contention, the appellant also produced Ex.A2, the extract of the tenancy record to prove that he is the cultivating tenant in respect of S.Nos. 1137/2B, 1142/3, 1143/2 and 1144. That apart, the plaintiff who let in evidence as PW1 also admitted in his chief-examination that appellants were recorded as cultivating tenants and also admitted Ex.A2, the record of tenancy extract. When the respondent/plaintiff himself has admitted that the defendants/appellants are the cultivating tenant under Ex.A2 document, the remedy available to the respondent/plaintiff is to approach the authorities for evicting the appellants from the suit properties. 5. When the respondent/plaintiff himself has admitted that the defendants/appellants are the cultivating tenant under Ex.A2 document, the remedy available to the respondent/plaintiff is to approach the authorities for evicting the appellants from the suit properties. 5. So far as the suit O.S.No.294 of 1991 filed by the appellant for permanent injunction is concerned, the appellant has filed the suit in respect of S.Nos.1142/3, 1143/2A, 1137/2B and 1175/B2B. Out of these four survey numbers, the appellant was recorded as cultivating tenant in respect of three survey numbers 1142/3, 1143/2A and 1137/2B. However, the appellant was not recorded as cultivating tenant in respect of S.No.1175/B2B. 6. The following substantial questions of law arose for consideration at the time of admitting the second appeals:- “Whether the judgment of the lower appellate Court is bad in law inasmuch as it had failed to advert to the oral evidence available on record?” 7. The learned counsel appearing for the appellants also filed additional substantial questions of law today. The learned counsel appearing for the third respondent and second respondent in S.A.Nos.1140 and 1141 of 1999 respectively was also put on notice and the learned counsel also advanced his arguments with regard to the additional substantial questions of law. The additional substantial questions of law that arose for consideration are as follows:- 1. Whether the suit recovery of possession is maintainable in the light of the facts that the appellants are in possession as cultivating tenant? 2. Whether the Court below erred in granting recovery of possession for entire 31 cents in Survey No.1137/2 when admittedly the Appellants are in possession as cultivating tenant? 3. Whether the Court below erred in not appreciating Ex.-A2? 4. Whether the Courts below are correct in dismissing the suit for injunction when the appellant is in possession of the land as cultivating tenant? 8. Mr.T.S.R.Venkataramana, learned counsel appearing for the third respondent and second respondent in S.A.Nos.1140 and 1141 of 1999 respectively has fairly submitted that the decree passed by the Courts below in favour of the respondents can be restricted to lands for which the appellant was not recorded as cultivating tenant. Further, the learned counsel fairly submitted a decree for permanent injunction may be granted in favour of the appellant in respect of the survey number in which, the appellant was recorded as cultivating tenant. Further, the learned counsel fairly submitted a decree for permanent injunction may be granted in favour of the appellant in respect of the survey number in which, the appellant was recorded as cultivating tenant. Therefore, the additional substantial questions of law raised by the appellants are decided in favour of the appellants. 9. The Courts below without taking into consideration Ex.A2 document and the evidence of PW1, erroneously dismissed the suit filed by the appellant and decreed the suit filed by the respondents in toto. In these circumstances, the judgments and decrees of the Courts below are modified as follows;- i) In the suit O.S.No.294 of 1991 filed by the appellant, he is entitled for a decree for permanent injunction in respect of S.Nos.1137/2B, 1142/3 and 1143/2 and the prayer in respect of S.No.1175/B2B stands dismissed. ii) In the suit filed by the respondent in O.S.No. 295/1991 for declaration, recovery of possession and measne profits, in so far as the declaration prayer is concerned, the same is confirmed in favour of the respondent and with regard to the recovery of possession is concerned the respondent/plaintiff in O.S.No.295/1991 shall have a decree in his favour in respect of S.Nos.77/3, 106/1 and 1175/1B2B. The suit in respect of S.No.1137/2B stands dismissed. 10. In these circumstances, the judgments and decrees of the Courts below are modified as stated above and the second appeals are partly allowed. No costs.