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2018 DIGILAW 1862 (MAD)

S. Velsamy v. Esakkiammal

2018-06-13

S.S.SUNDAR

body2018
JUDGMENT : S.S. SUNDAR, J. 1. The defendants in the suit O.S.No.69 of 2011 on the file of the Subordinate Court, Thoothukudi, are the appellants in S.A.(MD)No.738 of 2013. The defendants in O.S.No.68 of 2011 on the file of the Subordinate Court, Thoothukudi, are the appellants in S.A.(MD)No.772 of 2013. Since both the cases are identical and the defendants in the both the suits are same parties, these two appeals are disposed of by this common judgment. 2. The facts of the case in S.A.(MD)No.772 of 2013 are as follows: 2.1. The respondent in S.A.(MD)No.772 of 2013 as plaintiff filed the suit in O.S.No.68 of 2011 on the file of the Subordinate Court, Thoothukudi, for permanent injunction restraining the appellants herein from interfering with his peaceful possession and enjoyment of the suit properties. The suit properties are nanja lands, which are comprised in three survey numbers, namely, Survey Nos.80/1, 83/2 and 81 and described in four items. All the properties are contiguous and situated in Uzhakudi Village, Srivaikundam Taluk, Tuticorin District. 2.2. The case of the plaintiff is that Item Nos.1 and 2 of the suit schedule properties belonged to one Sheik Mohaideen by virtue of a registered gift deed dated 30.07.1976 and a sale deed dated 18.11.2004. It is the further case that Item Nos.3 and 4 of the suit schedule properties were ancestral properties of one Idhurus Goya and the said properties were purchased by the plaintiff subsequently through the Power Agent of the said Idhurus Goya on 13.10.2010. Similarly, the plaintiff states that the properties described as Item Nos.1 and 2 were also purchased by him on 13.10.2010 from Sheik Mohaideen. 2.3. It is the further case of the plaintiff that patta for the suit properties stood in the name of the plaintiff's predecessors in interest before his purchase and that patta was transferred in the name of plaintiff after the purchase. It is also stated that the defendants have no right or enjoyment over the suit properties and that they are inimical towards the plaintiff, because the plaintiff refused to sell the property to them for an unreasonably low price. The plaintiff further states that the defendants are rowdy elements and they are making strenuous attempts to grab the plaintiff's land. It is also stated that the defendants have no right or enjoyment over the suit properties and that they are inimical towards the plaintiff, because the plaintiff refused to sell the property to them for an unreasonably low price. The plaintiff further states that the defendants are rowdy elements and they are making strenuous attempts to grab the plaintiff's land. It is alleged that a complaint was lodged against the defendants on 14.10.2010 in Crime No.226 of 2010 for offences under Sections 147, 294(b), 323 and 324 IPC against the defendants and that a further complaint was lodged in Crime No.55 of 2011 against the defendants for making an attempt to the life of the plaintiff. It is in these circumstances, the plaintiff states that he was constrained to file the suit. 2.4. The second defendant in the suit in O.S.No.68 of 2011 filed a written statement denying the averments made in the plaint by para-wise. It is the case of the second defendant that the suit properties are in enjoyment of the defendants from their father's time and that they are cultivating tenants. Except stating that the defendants are in physical enjoyment as cultivating tenants, the details of tenancy are not stated. Even the person under whom the defendants claim tenancy is not stated in the written statement. 2.5. Before the trial Court, the plaintiff examined himself as P.W.1. Apart from examining P.W.2 to P.W.4 in O.S.No.68 of 2011, the plaintiff filed Ex.A1 to Ex.A10 and the defendants produced Ex.B1 and Ex.B2, apart from, examining the second defendant as D.W.1. Though the trial Court found title in favour of the plaintiff and held that the defendants have not produced any document to prove that they are cultivating tenants under predecessors in interest of the plaintiff, dismissed the suit on the ground that the plaintiff has not proved his enjoyment over the suit properties. Aggrieved by the judgment and decree of the trial Court in O.S.No.68 of 2011, plaintiff preferred an appeal in A.S.No.20 of 2012 on the file of the Principal District Court, Thoothukudi. 2.6. The lower appellate Court, after considering the evidence and documents elaborately, reversed the findings of the trial Court regarding possession and decreed the suit as prayed for. Aggrieved by the judgment and decree of the lower appellate Court in A.S.No.20 of 2012, the defendants have preferred the second appeal in S.A.(MD)No.772 of 2013. 3. 2.6. The lower appellate Court, after considering the evidence and documents elaborately, reversed the findings of the trial Court regarding possession and decreed the suit as prayed for. Aggrieved by the judgment and decree of the lower appellate Court in A.S.No.20 of 2012, the defendants have preferred the second appeal in S.A.(MD)No.772 of 2013. 3. The facts of the case in S.A.(MD)No.738 of 2013 are as follows: 3.1. The defendants in O.S.No.68 of 2011 are also the defendants in O.S.No.69 of 2011. The respondent in the appeal in S.A.(MD)No.738 of 2013 as plaintiff filed a suit in O.S.No.69 of 2011 for permanent injunction restraining the appellants from interfering with her peaceful possession and enjoyment of the suit property. The suit property is an extent of 1 acre 60 cents comprised in Survey No.99/1 (1.11 acres) and Survey No.99/3 (49 cents) in Uzhakudi Village, Srivaikundam Taluk, Tuticorin District. 3.2. The case of the plaintiff in the suit in O.S.No.69 of 2011 is that the suit property originally belonged to one Idhurus Goya and that the same was purchased by the plaintiff under a registered sale deed dated 29.12.2010. It is the further case of the plaintiff that the suit properties were in enjoyment of her vendor, in whose name patta was also granted. It is further stated that the plaintiff also obtained patta pursuant to the registered sale deed in her favour. In the suit also, the case of the plaintiff is that the defendants are rowdy elements and that several cases have been registered against them in Murappanadu Police Station. It is the further case that the defendants demanded a sum of Rs.1,00,000/- [Rupees One Lakh] from the plaintiff after knowing that she had purchased the suit property and that they also threatened her life, in case she refused to pay the money or leave the property. It is also the case of the plaintiff that one of the Items of the suit properties, namely, an extent of 1 acre 11 cents in Survey No.99/1 was in enjoyment of her father as cultivating tenant and that his father died leaving behind the plaintiff and her brother by name Vadivel (plaintiff in O.S.No.68 of 2011). 3.3. The second defendant in the suit has filed written statement denying the averments made in the plaint para-wise. 3.3. The second defendant in the suit has filed written statement denying the averments made in the plaint para-wise. It is also the contention of the defendants in the written statement that they are cultivating the lands using physical labour and that the suit is filed only to deprive of their rights as cultivating tenant and to disturb their possession. The written statement filed in O.S.No.69 of 2011 is also similar to the written statement filed in O.S.No.68 of 2011. Sum and substance, the defendants have claimed that they are tenants doing cultivation by their own physical exertion. 3.4. Even in this suit, the plaintiff examined herself as P.W.1. Apart from examining P.W.2 and P.W.3 as other witnesses. The plaintiff filed Ex.A1 to Ex.A5. The defendants did not file any document, but the second defendant was examined as D.W.1. The trial Court, as in the other case, dismissed the suit on the ground that the plaintiff has not proved her possession and enjoyment. It is relevant to mention that the defendants in the suit have not produced any document. Aggrieved by the judgment and decree of the trial Court, the plaintiff in O.S.No.69 of 2011 filed an appeal in A.S.No.21 of 2012 on the file of the Principal District Court, Thoothukudi and the appellate Court, after elaborately considering the evidence, set aside the judgment and decree of the trial Court and allowed the appeal. Aggrieved by the judgment and decree of the lower appellate Court in A.S.No.21 of 2012, the defendants in O.S.No.69 of 2011 have preferred second appeal in S.A.(MD)No.738 of 2013. 4. In both the cases, the pleadings are identical and the defendants in both the cases are same. The Plaintiff in O.S.No.68 of 2011 and O.S.No.69 of 2011 are brother and sister and the defendants are the sons of one Subbaiah. The following substantial questions of law have been framed by this Court at the time of admitting the second appeals: "1. Whether the respondent/plaintiff is in possession of the suit properties as on the date of the plaint as alleged in the plaint? 2. Whether the appellants/defendants are in possession as cultivating tenants as contended by them? 3. Whether the decree and judgment passed by the trial Court granting injunction as prayed for by the respondent/plaintiff, is correct?" 5. Whether the respondent/plaintiff is in possession of the suit properties as on the date of the plaint as alleged in the plaint? 2. Whether the appellants/defendants are in possession as cultivating tenants as contended by them? 3. Whether the decree and judgment passed by the trial Court granting injunction as prayed for by the respondent/plaintiff, is correct?" 5. It is pertinent to note that the defendants have pleaded that they are the cultivating tenants without even giving any details about the tenancy or about the lessor or payment of rent. Not even the quantum of rent is stated. P.W.1 in O.S.No.68 of 2011 has stated in his evidence as follows: XXX XXX XXX 6. It is surprising to note that the trial Court, despite recording the evidence of D.W.1, held that the plaintiffs have not proved their possession. The appellate Court has rightly considered the nature of documents produced and the oral evidence on both sides. It is true that the plaintiff has to prove his/her possession. The plaintiff in both suits have produced the documents of title. It is not in dispute that the plaintiffs' predecessors in interest have obtained patta for the suit properties and that patta stood in their names before the properties were purchased by the plaintiff in the respective suits. It is also not in dispute that the plaintiffs have obtained patta in their name, after the suit properties were purchased by the plaintiffs. Except denying the case of the plaintiffs, there is no specific claim of title by the defendants in the written statement. However, contrary to the written statement, D.W.1 has claimed title in his evidence without disclosing the source. The evidence of D.W.1 is self contradictory with lot of discrepancies. In the written statement filed by the defendants, there is no whisper about one "Jyothi Pannai". However, during the evidence, D.W.1 states that the suit properties and other adjacent properties were originally the part of lands, which were under the control of one "Jyothi Pannai". It is further stated that the said Jyothi Pannai leased out the lands to so many people including the defendants and that they were paying rent to the said "Jyothi Pannai". In the evidence of D.W.1, namely, the second defendant he deposed as follows:- XXX XXX XXX 7. It is further stated that the said Jyothi Pannai leased out the lands to so many people including the defendants and that they were paying rent to the said "Jyothi Pannai". In the evidence of D.W.1, namely, the second defendant he deposed as follows:- XXX XXX XXX 7. From a reading of the written statement and evidence of D.W.1, the impression one gets is that D.W.1 is not speaking truth and that the defendants were really interested in grabbing others lands by taking advantage of the fact that the predecessors in title of the plaintiffs were residing far away from the suit properties. Though the title of the plaintiffs is specifically denied in the written statement, the ownership by any one else is not substantiated by any document. Merely because, there was some dispute between the plaintiff and the defendants in both the suits regarding possession and the plaintiffs have given criminal complaints against the defendants alleging trespass, the trial Court has given a finding that the plaintiffs have not proved their possession. 8. Admittedly, the defendants have not produced any document to show that they are in possession of the property as cultivating tenants. Even cultivation by the defendants in both the suits has not been established by any acceptable independent evidence. This is a case where the ownership has been established by registered sale deeds, Revenue records apart from oral evidence. Hence this Court has no reason to interfere with the findings of the appellate Court regarding title. In such circumstances, the Court can also presume that the plaintiffs are in possession by applying the principle 'possession follows title'. In this case, the evidence of P.W.1 is corroborated by other witnesses regarding title. There is no document produced by the defendants to prove their source of claim either as a cultivating tenant or as a person in lawful possession and enjoyment of the suit properties. The lower appellate Court has categorically found that the defendants have not produced any document to prove their enjoyment or their claim as cultivating tenants. 9. The trial Court, mainly relying upon the complaints lodged against the defendants describing the defendants as trespassers, held that the plaintiffs have not proved their possession. The lower appellate Court has categorically found that the defendants have not produced any document to prove their enjoyment or their claim as cultivating tenants. 9. The trial Court, mainly relying upon the complaints lodged against the defendants describing the defendants as trespassers, held that the plaintiffs have not proved their possession. In a case, where the defendants have not proved their possession, but the plaintiff has proved his or her title, the Court would further examine the issue on probabilities and can presume possession in favour of the plaintiff. The defendants relied upon the documents Ex.B1 and Ex.B2, which are the plaints in the two suits filed by the predecessors in interest of the plaintiff as against the defendants. It is demonstrated before the lower appellate Court that the properties, which are the subject matters of the two suits are not the suit properties and that therefore, the contention of the defendants that they are in enjoyment as cultivating tenants has no merit. The evidence of D.W.1 would clearly establish that the claim of the defendants as cultivating tenants cannot be believed and hence the findings of the lower appellate Court that the findings of the trial Court is against the documentary evidence are absolutely right. 10. The learned counsel appearing for the appellants submitted that the suit properties and various other properties were under the Management of Jyothi Pannai and that the same were actually under the enjoyment of cultivating tenants. Since the witnesses, who were examined on behalf of the plaintiffs admitted/cultivation of certain lands by cultivating tenants under the Management of Jyothi Pannai, it is submitted by the counsel for appellant that the lower appellate Court ought to have dismissed the appeals holding that the plaintiff in two suits have not proved their possession. It is to be noted that the cultivation of lands by cultivating tenants under the Management of Jyothi Pannai is not even pleaded in the written statement. No amount of evidence can be looked into without specific pleading. Further, the evidence of defendants in this case cannot be accepted as they have not produced any document to claim rights as cultivating tenants. In this case, there is neither pleading nor evidence as to the details of tenancy, to whom the defendants were paying rent. No amount of evidence can be looked into without specific pleading. Further, the evidence of defendants in this case cannot be accepted as they have not produced any document to claim rights as cultivating tenants. In this case, there is neither pleading nor evidence as to the details of tenancy, to whom the defendants were paying rent. No record is produced to show that the defendants were recorded/registered as cultivating tenants under T.N. Act 10 of 1969 (Tamil Nadu Agricultural Lands Record of Tenancy Rights Act). No document is produced to show that the suit properties in the two suits were also entrusted to the said Jyothi Pannai. No independent witness is examined to prove that the suit properties were part of the lands leased out by Jyothi Pannai. In such circumstances, this Court has no reason to interfere with the findings of the lower appellate Court in both the cases in A.S.Nos.20 and 21 of 2012 regarding possession. 11. The learned counsel appearing for the appellants raised a new legal issue by stating that the plaintiffs in their evidence in both the cases have admitted that they can produce the records to show about the particulars of lands, which are under the cultivation of tenants under Jyothi Pannai. Since the plaintiffs have accepted to produce the best evidence available and the question whether the suit properties are part of lands, which were under the control of Jyothi Pannai is a major issue, learned counsel for the appellant submitted that the Court should draw adverse inference against the plaintiffs. He relied upon the Judgment of this Court in the case of G.Jeffrey vs. M/s.Bombay Burmah Trading Corporation Ltd., in S.A.(MDNo.851 of 2009 dated 26.03.2013. The learned counsel appearing for the appellants further submitted that the judgment of the lower appellate Court is vitiated for the failure to consider the important aspects of the case and this Court, in exercise of power under Section 100 C.P.C. is expected to reverse the findings of the lower appellate Court, which are perverse. 12. The learned counsel appearing for the appellants further submitted that the judgment of the lower appellate Court is vitiated for the failure to consider the important aspects of the case and this Court, in exercise of power under Section 100 C.P.C. is expected to reverse the findings of the lower appellate Court, which are perverse. 12. The learned counsel appearing for the respondent in these appeals, on the other hand, submitted that the case of the defendants that they are cultivating tenants has not been proved by any order of Record Officer under the provisions of Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, [hereinafter referred to as "the Act"] and that in the absence of any order, the Civil Court is not competent to decide the issue whether the defendants are the cultivating tenants in respect of the suit properties. The learned counsel relied upon the judgment of this Court in the case of Kaliamoorthy vs. Jothimani, 2016 1 MWN(Civ) 133. This judgment is on the interpretation of Section 16-A of the Act. That was a case, where the land owners have filed a suit for partition and separate possession. In that suit, the second defendant took a plea that he is a cultivating tenant. The suit was decreed and in the appeal, the decree of the trial Court was confirmed and this Court dismissed the second appeal with costs. However, substantial questions of law raised by the tenants are answered by holding that the Civil Court has no jurisdiction to decide the possession of cultivating tenants. The legal consequences of the decision of this Court is not reflected in the final result of the said case. Though it is true that the Civil Court's jurisdiction is barred in view of Section 16-A of the Act, the Court is not precluded from deciding the question of possession in a case, where the suit is for bare injunction. The learned counsel for the respondent also relied upon the another judgment of this Court in the case of C.Chonachalam and others vs. Veeranarayanamangalam Vellala Samudayam Muthalamman Koil Trust, 2014 2 MWN(Civ) 337, wherein this Court has held that the High Court will not interfere with the question regarding the factum of possession in second appeal. 13. The learned counsel for the respondent also relied upon the another judgment of this Court in the case of C.Chonachalam and others vs. Veeranarayanamangalam Vellala Samudayam Muthalamman Koil Trust, 2014 2 MWN(Civ) 337, wherein this Court has held that the High Court will not interfere with the question regarding the factum of possession in second appeal. 13. In view of the discussions and conclusions reached above, this Court is of the view that the appellants are bound to fail and both the second appeals are dismissed. The judgment and decree of the Additional District Court, Thoothukudi on the file of the Principal District Court, Thoothukudi in A.S.No.20 of 2012 and A.S.No.21 of 2012 are confirmed. No costs. Consequently, the connected Miscellaneous Petitions are closed.