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2020 DIGILAW 158 (MAD)

Sathiyaseelan v. P. S. Manimaran

2020-01-22

N.SATHISH KUMAR

body2020
JUDGMENT : N. Sathish Kumar, J. 1. Aggrieved over the concurrent finding of the Courts below in dismissing the Suit filed for Declaration, Permanent Injunction and for Recovery of Possession, the present Second Appeal is filed. 2. The parties are referred to as per their rank in the Trial Court for the sake of convenience. 3. The brief facts leading to the filing of the Second Appeal are as follows: (i) The Suit properties originally belonged to the father of the Plaintiffs. He died on 11.7.1967 leaving the Plaintiffs as Legal Heirs to succeed the properties and Patta was also issued in favour of the Plaintiffs. The Defendants are no way connected with the Suit properties. The First Defendant had compelled the Plaintiffs to sell the properties in favour of the Defendants and when the same was refused, in order to coerce the Plaintiffs to sell the properties, the Defendants colluded together to create a false document as if the First Defendant alienated his tenancy right to the Second Defendant. The First Defendant has never been a Cultivating Tenant of the Suit properties. On 19.6.2002, the Defendants had created 'Ulavadai Pathiya Madeover Pathiram' illegally, in favour of the Second Defendant. Based on the above document, the Defendants pressurised the Plaintiffs to sell the properties and when the Plaintiffs approached the Police Station, they were advised to go to the Civil Court. Hence, the Suit has been filed. (ii) The First Defendant has filed a Written Statement admitting that the Plaintiffs are the Owners of the properties and it is his contention that he is the Cultivating Tenant and the Second Defendant is the Sub-Tenant and it is also denied that he insisted the Plaintiffs to sell the properties. It is the case of the First Defendant that his grandfather Agniveeran Amabalam was the Cultivating Tenant of the Suit properties and thereafter, the First Defendant's father Malayandi Ambalam was the Cultivating Tenant of the Suit properties. The First Defendant after the death of his father has been paying Melwaram. This fact was known to adjacent Landowners and several persons in the village. He has also obtained a Certificate from the Village Administrative Officer for applying Loan from the Cooperative Society. Document, dated 19.6.2002 is a document with regard to sub-tenancy, which is recognized by law. The First Defendant after the death of his father has been paying Melwaram. This fact was known to adjacent Landowners and several persons in the village. He has also obtained a Certificate from the Village Administrative Officer for applying Loan from the Cooperative Society. Document, dated 19.6.2002 is a document with regard to sub-tenancy, which is recognized by law. Since the First Defendant is the Cultivating Tenant and the Second Defendant is the sub-tenant, the Civil Curt has no jurisdiction under the provisions of Tamil Nadu Cultivating Tenants' Protection Act, 1955. 4. On the basis of the above pleadings, the Trial Court has framed the following issues: 1. Whether the Plaintiffs are entitled to Injunction? 2. Whether the Plaintiffs are entitled to recovery of possession of the Suit property? 3. Whether the Defendants are in possession of the Suit property? 4. Whether the Civil Court has no jurisdiction to try this Suit? 5. To what other relief if any, the Plaintiff is entitled to?" 5. Before the Trial Court, on the side of the Plaintiffs PW1 was examined and Exs. A1 to A10 were marked and on the side of the Defendants, DWs. 1 to 4 were examined and Exs. B1 to B5 were marked. Commissioner's Reports were marked as Ex. C1 & C2. 6. The Trial Court dismissed the Suit mainly on the basis of Exs. B1 to B3 and also held that the First Defendant pleaded that the Defendants are the Cultivating Tenants and if they are the Cultivating Tenants, they have to be evicted only by due process of law and the Civil Court has no jurisdiction to decide whether the Defendants are in possession and enjoyment of the Suit property as Cultivating Tenants or otherwise. It is relevant to note that the Trial Court has not recorded a finding to the effect that the Defendants are the Cultivating Tenants. On the contrary, the Trial Court has proceeded to hold that the Civil Court has no jurisdiction since the Defendants pleaded that they are the Cultivating Tenants. The First Appellate Court also confirmed the finding of the Trial Court. 7. While admitting the Second Appeal, the following Substantial Questions of Law were framed: (a) Whether the Courts below are right in holding that the First Respondent is a Cultivating Tenant against the evidence on record?; and (b) Whether the Courts below are right in ignoring Exs. The First Appellate Court also confirmed the finding of the Trial Court. 7. While admitting the Second Appeal, the following Substantial Questions of Law were framed: (a) Whether the Courts below are right in holding that the First Respondent is a Cultivating Tenant against the evidence on record?; and (b) Whether the Courts below are right in ignoring Exs. A9 & A10, which are the Public documents as defined under Section 74 of the Evidence Act? 8. The learned Counsel appearing for the Appellants has submitted that originally the Suit properties were in the possession of the Plaintiffs and Exs. A9 & A10 (Adangal Extracts) proves the same. Only prior to the filing of the Suit, the Defendants tried to encroach upon the properties claiming to be Tenants. The Commissioner's Reports filed also clearly indicated that the Suit properties are barren lands. It is the further contention of the learned Counsel that to prove the alleged plea of Cultivating tenancy, absolutely there is no evidence. Exs. B1 to B3-Receipts have been issued for transporting paddy from the land to the thrashing floor, which has been clearly explained and merely on that basis, the Court below found that the Defendants are Cultivating Tenants. Such view is erroneous and there is no evidence whatsoever available on record and hence, submitted that the Second Appeal has to be allowed. 9. Despite printing the names in the cause-list, none appeared on the side of the Respondents. 10. I have heard the learned Counsel for the Appellants and perused the materials available on record. 11. The Suit has been filed for Declaration, Permanent Injunction and for Recovery of Possession. It is the case of the Plaintiffs that the Suit properties originally belonged to his father S. Periyasamy Pillai, who died on 11.7.1967. After his death, the Plaintiffs were in continuous possession and enjoying the properties. To show that they were in possession of the properties, Ex. A9 & A10 (Adangal Extracts) were filed to show that in the year 2000 & 2001, the properties were cultivated by the Plaintiffs. The Adangal Extracts shows that the properties were in enjoyment of the Plaintiffs 1 & 2. 12. To show that they were in possession of the properties, Ex. A9 & A10 (Adangal Extracts) were filed to show that in the year 2000 & 2001, the properties were cultivated by the Plaintiffs. The Adangal Extracts shows that the properties were in enjoyment of the Plaintiffs 1 & 2. 12. It is the specific case of the Plaintiffs that the Defendants in the year 2002, created some document in order to coerce the Plaintiffs to sell the properties and claimed that they are Cultivating Tenants and further, the Second Defendant, who is said to be a Sub-Tenant has not appeared before the Court below and entered into the Witness box. The title of the Plaintiffs' in respect of the Suit properties is not denied by the Defendants. Their only contention is that the First Defendant's grandfather was the Cultivating Tenant of the Suit properties. After his death, his father was the Cultivating Tenant and the First Defendant is continued as a Cultivating Tenant, whereas no proof whatsoever is available on record to show that either his grandfather or father was the Cultivating Tenant of the Suit properties. No entry by the Record Officer under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, was filed to show that they are the Cultivating Tenants. 13. Further, it is relevant to note that admittedly the First Defendant is working as a Reader in American College, Madurai, which has been established on record. It is to be noted that a 'Cultivating Tenant' means a person, who contributes his own Physical Labour or that of any member of his family in the cultivation of any land belonging to another under a Tenancy Agreement, express or implied and includes the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land and similarly, a Sub-Tenant if he contributes his own physical labour or that of any member of his family in the cultivation of such land, but does not include a mere intermediary or his heir. 14. Admittedly, the First Defendant is working as Reader in American College, Madurai. 14. Admittedly, the First Defendant is working as Reader in American College, Madurai. Further, there is no evidence whatsoever available on record to show that either his grandfather or his father are the Cultivating Tenants and there is no entry whatsoever to show that they were Cultivating Tenants and recognized by an Authorised Officer. In the absence of any evidence to show that the First Defendant's grandfather was the Cultivating Tenant and his father has continued as a Tenant and the First Defendant is also contributing his physical labour, one cannot contend that he is a Cultivating Tenant. 15. Further, the contention of the Defendants that the First Defendant, who is working as a Reader in American College, Madurai, contributes his own physical labour or that of any member of his family in the cultivation of such land, is highly improbable. It is further to be noted that the Trial Court has given undue importance to Exs. B1 to B3, the receipts said to have been issued by the First Plaintiff to hold that the Defendants are the Tenants in the properties. Such approach of the Courts below is nothing but erroneous and shows lack of application of mind. 16. This Court has perused Exs. B1 to B3. Ex. B1 clearly indicates that it is only a Receipt indicating that 15 bags of Paddy were received. Ex. B2 also shows that only 15 bags of Paddy were reached. Ex. B3 indicates that 15 bags were reached and hiring charges of Rs. 150 had been paid. The manner in which Ex. B3 was written clearly probablise the Plaintiffs' case that the Receipts were issued towards transporting Paddy from the field to the Thrashing Floor. If really the Defendants were in possession of the properties, the Receipts should not have been issued in such a manner. Therefore, the approach of the Courts below in deciding the Tenancy rights of the Defendants only on the basis of Exs. B1 to B3-Receipts is highly erroneous and result of lack of application of mind. When the Defendants asserts that they are Cultivating Tenants, there is no piece of evidence produced to show that the Defendants or their predecessor were Tenants in the properties. Admittedly, the First Defendant is working as Reader in the American College, the Cultivating tenancy cannot be inferred merely on the basis of oral evidence. 17. When the Defendants asserts that they are Cultivating Tenants, there is no piece of evidence produced to show that the Defendants or their predecessor were Tenants in the properties. Admittedly, the First Defendant is working as Reader in the American College, the Cultivating tenancy cannot be inferred merely on the basis of oral evidence. 17. It is also to be noted that it is the case of the First Defendant that his grandfather was the Cultivating Tenant of the Suit properties and thereafter, his father was continued. Even to prove that they were in possession, they could have produced any documents even to show that the Agricultural produce were continuously sold from that properties, but no document whatsoever was filed. 18. It is further to be noted that Exs. A9 & A10 clearly shows that prior to the Suit, the Plaintiffs were in possession of the properties and the Commissioners' Reports clearly indicate that immediately after filing of the Suit, the Commissioner visited the properties at the relevant point of time in the year 2002. As per the Commissioner's Report, the Suit properties are only barren lands and covered by bushes and no Agricultural activities took place at the relevant point of time. This fact, clearly probalise the Plaintiffs' case and only in the year 2002, the Defendants have made an attempt to make inroad into the properties, which has resulted in giving up the agricultural activities at the relevant point of time. Therefore, when the title has not been disputed and the plea of the Defendants that they are Cultivating Tenants has not been established, the Plaintiffs are certainly entitled to the Judgment and Decree as prayed for. 19. In fact, the Trial Court even without going into the issue whether the Defendants has established the right as Cultivating Tenants or not and Issue Nos. 2 & 4, has held that since the Defendants had pleaded that they are Cultivating Tenants, they have to be evicted from the Suit properties by due process of law. Without recording any finding as to whether the Defendants are Cultivating Tenants or not, the Trial Court has simply held that the Civil Court has no jurisdiction. The First Appellate Court has also not gone into the issues and simply dismissed the Appeal. 20. Without recording any finding as to whether the Defendants are Cultivating Tenants or not, the Trial Court has simply held that the Civil Court has no jurisdiction. The First Appellate Court has also not gone into the issues and simply dismissed the Appeal. 20. In view of the above, the Substantial Questions of Law are answered in favour of the Appellants/Plaintiffs and the Second Appeal is allowed with Costs and the Judgment and Decree of the Courts below are set aside and the Suit is decreed as prayed for. Consequently, connected Miscellaneous Petition is closed.