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2017 DIGILAW 1975 (MAD)

M. Suriya Prabha v. Karupayee @ Papayee

2017-07-12

T.RAVINDRAN

body2017
ORDER : 1. Seeking permission to deposit the rent for the period from 1999-2000 to 2001-2002 on the footing that she is the cultivating tenant in respect of the subject properties, the revision petitioner preferred an application under Section 3(b)(a) of Cultivating Tenants Protection Act, 1955 read with Rule 3 of Cultivating Tenants Protection Rules. 2. The said application having come to be dismissed by the Special Deputy Collector, Trichy, by order, dated 04.02.2005 in P.No.275/2003 (Kulithalai), aggrieved over the same, the civil revision petition has been laid. 3. 2. The said application having come to be dismissed by the Special Deputy Collector, Trichy, by order, dated 04.02.2005 in P.No.275/2003 (Kulithalai), aggrieved over the same, the civil revision petition has been laid. 3. As seen from the case of the petitioner before the Special Deputy Collector, Trichy, the husband of the petitioner, namely, Marappan had taken the subject properties on lease as a cultivating tenant from his mother Ramayee Ammal on an annual rent of Rs.200/- for a period of five years under a registered Lease Deed and thereby cultivating the same by exercising his own physical labour and also that of his family members i.e., petitioner herein and further according to the case of the petitioner, after the death of her husband Marappan, she being his wife and their children have succeeded to the subject properties and the petitioner and her children arrayed as respondents 2 and 3 in the proceedings before the Special Deputy Collector, Trichy, had been cultivating the subject properties by exercising their own physical labour and thus, according to the petitioner, she is a cultivating tenant in respect of the subject properties and further according to her case, her right as a cultivating tenant in respect of the subject properties had been upheld in O.S.No.985 of 1992 preferred by the daughter of the first respondent, namely, Rajeswari, against the revision petitioner and others and thus, according to the petitioner, the respondents are stopped from disputing the petitioner’s right as a cultivating tenant in respect of the subject properties and further, according to the petitioner, the rent has been paid up to 1992 and inasmuch as the erstwhile landlady Ramayee Ammal, mother of the first respondent, had refused to receive the rent sent by way of money order for the years 1992-1993 to 1996-1997, the petitioner preferred R.A.No.80 of 1999 under Challan No.38 as against the lessor and during the pendency of the said proceedings, the lessor Ramayee Ammal had died leaving behind her daughter, namely, first respondent herein and the children of her pre-deceased son Marappan, namely, children of the petitioner and the deceased Marappan. However, according to the case of the petitioner, the Special Deputy Collector, Trichy, had dismissed the above mentioned petition mistakenly as if no documentary proof has been placed by the petitioner to establish her leasehold right. However, according to the case of the petitioner, the Special Deputy Collector, Trichy, had dismissed the above mentioned petition mistakenly as if no documentary proof has been placed by the petitioner to establish her leasehold right. It is also the case of the petitioner that challenging the said order, she had also preferred C.R.P.No.4146 of 2001. However, the said civil revision petition had come to be dismissed by upholding the view of the Special Deputy Collector, Trichy, i.e., that the petitioner has failed to establish her leasehold right in respect of the subject properties. The petitioner has got documentary evidence i.e., registered Lease Deed, dated 13.02.1988, in favour of her husband executed by Ramayee Ammal, mother of the first respondent and her case is also buttressed by Judgment and Decree passed in O.S.No.985 of 1992 and therefore, according to the petitioner, she being a cultivating tenant and entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act, 1955, accordingly, preferred the above said application in P.No.275 of 2003 (Kulithalai) to hold and record that rent for the period from 1992-1993 to 2001-2002 has been paid and if any further amount is due from the petitioner, time may be granted to deposit the same. 4. As seen from the impugned order and the records of the Special Deputy Collector, Trichy, it is found that in the above said application preferred by the petitioner, notice has been ordered to the first respondent and thereafter, despite several opportunities being afforded to her to file counter in the proceedings, she having not filed the counter, it is seen that the first respondent had been set ex parte. Pursuant to the same, it is found that the Special Deputy Collector had proceeded with the matter further. Pursuant to the same, it is found that the Special Deputy Collector had proceeded with the matter further. However, holding that inasmuch as the petitioner’s application in R.A.No.80 of 1999 had come to be dismissed on 20.07.2001, according to the Special Deputy Collector, the petitioner ought to have taken steps to record herself as a cultivating tenant before the concerned authority and she having failed to do so is not entitled to seek permission to deposit the rent for the period from 1999-2000 to 2001-2002 and further held that the petitioner had failed to establish that she is having the leasehold right in respect of the subject properties and thereby, she is a cultivating tenant in respect of the same and thereby dismissed the application preferred by the petitioner. Aggrieved over the same, the present civil revision petition has been instituted. 5. As mentioned supra, the petitioner has claimed that she is a cultivating tenant in respect of the subject properties under the first respondent. The petitioner’s case is that her husband Marappan had taken the leasehold right from his mother Ramayee Ammal in respect of the subject properties and contributing his physical labour in cultivating the subject properties and after his death, according to the petitioner, she and her children had continued to contribute their physical labour in cultivating the subject properties and accordingly, it is the case of the petitioner that she is a cultivating tenant in respect of the subject properties and inasmuch as the first respondent had refused to receive the rent she has been constrained to institute proceedings before the Special Deputy Collector under the Cultivating Tenants Protection Act, 1955 for depositing the rent. 6. Though in this civil revision petition, the first respondent had entered appearance through her Advocate and contested the claim of the petitioner that she is a cultivating tenant in respect of the subject properties, as adverted above, in the proceedings before the Special Deputy Collector, Trichy, she had not chosen to contest the claim of the petitioner by filing a counter. Accordingly, it is found that the first respondent had been set ex parte and thereafter the proceedings were proceeded further. However, the Special Deputy Collector, Trichy, had discountenanced the claim of the petitioner that she is the cultivating tenant in respect of the subject properties and thereby dismissed her application. 7. Accordingly, it is found that the first respondent had been set ex parte and thereafter the proceedings were proceeded further. However, the Special Deputy Collector, Trichy, had discountenanced the claim of the petitioner that she is the cultivating tenant in respect of the subject properties and thereby dismissed her application. 7. As seen from the records, it is found that the petitioner along with the application has also enclosed the Xerox copy of the Lease Deed, dated 13.02.1988, entered into between Ramayee Ammal and her husband Marappan as Document No.1; Xerox copy of the Judgment, dated 23.12.1994, passed in O.S.No.985 of 1992, on the file of the learned Additional District Munsif, Karur, as Document No.2 and Xerox copy of the order, dated 20.07.2001, in R.A.No.80 of 1999, on the file of the Revenue Court-cum-Special Tahsildar, Trichy, as Document No.3. 8. On a perusal of the impugned order, it is not clear that as to whether at all any opportunity had been afforded to the petitioner to adduce evidence in support of her case by tendering oral evidence and marking the documents filed by her along with the petition. As seen from the impugned order, there is no appendix attached to the same as to whether at all the petitioner had been afforded with the opportunity to adduce evidence and mark the documents to substantiate her claim. Therefore, it is found that though the petitioner had based her claim upon certain documents, particularly, the Judgment passed in O.S.No.985 of 1992 coupled with the copy of the registered Lease Deed between Ramayee Ammal and her husband in respect of the subject properties, it is found that on a perusal of the impugned order, the Special Deputy Collector had not taken notice of the above said documents and accordingly, it is found that there is no reference at all about the said documents in the impugned order. It is, therefore, evident that as rightly put forth by the petitioner’s counsel, the petitioner as such had not been afforded an opportunity to adduce evidence both oral and documentary evidence before the Special Deputy Collector, Trichy, to substantiate her claim. Accordingly, it is noted that no reference at all has been made in the impugned order about the documents filed by the petitioner along with the petition. 9. Accordingly, it is noted that no reference at all has been made in the impugned order about the documents filed by the petitioner along with the petition. 9. Having found that the first respondent had not contested the claim of the petitioner, it is incumbent upon the Special Deputy Collector, Trichy, to have afforded an opportunity in the interest of justice to enable the petitioner to substantiate her claim by adducing necessary oral and documentary evidence. However, without affording such opportunity, it is found that the Officer concerned had proceeded to dismiss the application preferred by the petitioner on the ground that inasmuch as her earlier application seeking permission to deposit the rent in R.A.No.80 of 1999 had come to be dismissed and pursuant to the same, she having not taken steps to record herself as a cultivating tenant before the concerned authority, according to the impugned order, the petitioner is not entitled to again seek permission to deposit the rent for the subsequent period from 1999-2000 to 2001-2002. That apart, it is also found that as per the impugned order, the petitioner had not established her case that she is the cultivating tenant in respect of the subject properties. However, with reference to the above finding of the Officer concerned, it is strenuously argued by the petitioner’s counsel that without affording opportunity to the petitioner to adduce evidence in support of her claim, the Officer had passed the impugned order as if, the petitioner had not established her claim as a cultivating tenant in respect of the subject properties. According to the petitioner’s counsel, the petitioner had enclosed a copy of the Lease Deed entered into between her husband and Ramayee Ammal in respect of the subject properties and also further according to him, when the petitioner’s case that she is the cultivating tenant had been upheld by the Civil Court in O.S.No.985 of 1992, the same would operate as estoppel on the part of the first respondent to dispute her claim as a cultivating tenant and the Lower Court had failed to consider those documents at all and also not afforded an opportunity to enable the petitioner to mark the said documents and therefore, according to the petitioner’s counsel, the impugned order cannot be allowed to stand in the eyes of law and liable to be rejected. 10. 10. Per contra, it is contended by the respondents’ counsel that the impugned order has been passed in accordance with law and there is no infirmity as such and therefore, the civil revision petition is liable to be dismissed. 11. The discussions made above would go to disclose that when the petitioner based her claim upon documentary evidence and when the impugned order is silent as to the above said documents and further, when it is also not clear as to whether at all the petitioner had been afforded due opportunity to adduce evidence in support of her case, it could be seen that the Special Deputy Collector had erroneously come to the conclusion that the petitioner has failed to establish her status as cultivating tenant in respect of the subject properties without considering the documents filed by her along with the application. 12. On a perusal of the above said documents prima facie it is found that the petitioner has a case in her favour. However, as such it is found that the said documents are only Xerox copies. Though the petitioner in her application before the Special Deputy Collector had given an undertaking to produce the original of those documents at the time of enquiry, it is not clear as to whether the petitioner was provided with an opportunity to produce original of those documents. Be that as it may, when it is found that the impugned order has not taken into consideration the documentary evidence available with the petitioner to establish her status as the cultivating tenant and when it is also found that the Special Deputy Collector had not afforded an opportunity to enable the petitioner to produce the original of those documents, in my considered opinion, the impugned order cannot be allowed to be sustained any further and is liable to be reversed. 13. It is argued by the respondents’ counsel that in any case, if this Court is of the opinion that the matter has to be remitted back to the Lower Court for fresh consideration of the claim of the petitioner, it is put forth by him that an opportunity should also be provided to the first respondent to appear before the concerned Officer and defend her case by filing a counter and adducing evidence in support of her defence. The said request seems to be reasonable considering the fact that the first respondent is fighting tooth and nail the claim of the petitioner that she is the cultivating tenant in respect of the subject properties. 14. In the light of the foregoing reasons, the impugned order, dated 04.02.2003, passed by the Special Deputy Collector, Trichy, in P.No.275 of 2003 (Kulithalai), is set aside and the matter is remitted back to the Lower Court for fresh consideration of the case of the petitioner on the following lines: 14.1. The Special Deputy Collector, Trichy, on the receipt of a copy of this order, is directed to issue due notice to both the petitioner as well as the first respondent and thereafter also afford an opportunity to the first respondent to file counter in support of her defence and thereafter, the Officer concerned is directed to afford due opportunity to both the petitioner as well as the first respondent to adduce oral and documentary evidence, if any, in support of their respective claim and thereafter, dispose of the matter in accordance with law. 15. Accordingly, the civil revision petition is disposed of. No costs.