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2021 DIGILAW 538 (MAD)

Anandam (Died) v. N. Sivasubramaniam (Died)

2021-02-17

N.SATHISH KUMAR

body2021
JUDGMENT : Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.9/93 dated 24.09.1998 on the file of the Sub-Court, Tuticorin, reversing the judgment and decree made in O.S.No.569 of 1991 dated 28.07.1992 on the file of the Addl. District Munsif Court, Tuticorin. Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.23 of 2000 on the file of Additional District Judge and Chief Judicial Magistrate, Tuticorin dated 20.07.2000 confirming the judgment and decree passed in O.S.No.167 of 1997 on the file of the Principal District Munsif Court, Thiruchendur, dated 23.08.1999. 1. Aggrieved over the decree and judgment of the first appellate Court reversing the decree granted by the trial Court for permanent injunction, S.A.No. 889 of 1999 is filed, whereas the S.A.No.1946 of 2000 is filed as against the concurrent finding of the trial Court dismissing the suit. 2. The brief facts leading to the filing of the Second Appeal No.889 of 1999 are as follows: The suit property originally belonged to one Chelladurai Nadar and he has mortgaged the property to one Sakthivel Marthandam on 03.03.1972. Again the said Chelladurai Nadar has made over the mortgage to the said Sakthivel Marthandam on 19.08.1974. Thereafter, the said Sakthivel Marthandam was in possession and enjoyment of the property. The said mortgagee has leased out the property in favour of the plaintiff to cultivate the lands by raising shadow crops at the rate of Rs.425/- per year. The plaintiff has also registered his name as a cultivating tenant before the authority on 06.08.1983 and is continuing in possession of the property as a tenant. The defendant has purchased the suit property on 13.08.1982 and in the front side of the suit property, there are three shops situate, bearing Door Nos.74, 75 and 76. The plaintiff is also running a shop in Door No.74. The defendants has filed an application to evict the tenancy in respect of Door Nos.74, 75 and 76. The defendant has tried to evict the plaintiff from the suit property. Hence, the suit. 3. Denying the allegations in the plaint, it is the contention of the defendant that the suit has been filed without impleading all the tenants in the suit property. The defendant has tried to evict the plaintiff from the suit property. Hence, the suit. 3. Denying the allegations in the plaint, it is the contention of the defendant that the suit has been filed without impleading all the tenants in the suit property. The alleged lease by the mortgagee is also denied and infact, the mortgage was made over to one Indirani, W/o. Sakthivel Marthandam and she was in possession of the property. The alleged registration is not valid in the eye of law. The plaintiff was never doing cultivation in the property in question. The other tenants are not impleaded in the suit. The defendant infact, is in possession of 19 cents and only in order to delay the eviction proceedings, this suit has been filed. Hence, prayed for dismissal of the suit. 4. Based on the above pleadings, the trial Court framed the following issues: 1. Whether the lease hold right obtained by the plaintiff in respect of the suit property is valid? 2. Whether the defendant has any right to led in the entire suit property in lease? 3. Whether the suit is bad for non-joinder of necessary parties/owners of the suit property? 4. To what other reliefs, the plaintiff is entitled to? 5. Whether the plaintiff is entitled to get the relief of injunction? 5. Before the trial Court, on the side of the plaintiff, he himself was examined as P.W.1 and Ex.A1 to A7 were marked. On the side of the defendant, he himself was examined as D.W.1 and one document was marked as Ex.B1. On behalf of the Court, Ex.C1 and C2 were marked. 6. The trial Court, after considering the entire materials, has decreed the suit taking note of the registration made under the 'Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act 10 of 1969)' [hereinafter referred to as 'Act 10 of 1969'] and granted injunction. The first appellate Court, however, found that the plaintiff is not entitled to any injunction and the entry made under Act 10 of 1969, has been obtained behind the back of the owner of the property. Hence, dismissed the suit filed for permanent injunction. As against the judgment and decree of the first appellate Court, S.A.No.889 of 1999 has been filed. 7. Hence, dismissed the suit filed for permanent injunction. As against the judgment and decree of the first appellate Court, S.A.No.889 of 1999 has been filed. 7. The brief facts leading to the filing of S.A.No.1946 of 2000 are as follows: The plaintiff, who claims that he is cultivating the lands and has a right of easement through the second schedule of property, has filed a suit for declaration to declare the easement right over the second schedule of property. 8. The defendant, denying the allegations made in the plaint, prayed for dismissal of the suit. 9. Based on the above pleadings, the Trial Court has framed the following issues: 1. Whether the plaintiff has any right to enjoy the half portion of the suit property? 2. Whether the plaintiff is entitled to get the relief of declaration and permanent injunction in respect of second schedule of property? 3. Whether the defendant is entitled for any order towards costs? 4. To what other relief, the plaintiff is entitled to? 10. Before the trial Court, on the side of the plaintiff, P.W.1 to P.W.3 were examined and Ex.A1 to Ex.A8 were marked. On the side of the defendant, he himself was examined as D.W.1 and Ex.B1 to Ex.B8 were marked. 11. The trial Court, after considering the materials available on record, dismissed the suit. As against the same, A.S.No.23 of 2000 has been filed. The first appellate Court has also dismissed the appeal. As against the concurrent finding of both the Courts below S.A.No.1946 of 2000 is filed. 12. While admitting the Second Appeal in S.A.No.889 of 1999, the following substantial question of law has been framed: 'Whether the Lower Appellate Court was right in going into the question whether recording of the name of the appellant/plaintiff as a cultivating tenant was legal or not in view of the bar under Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969? 13. 13. While admitting the Second Appeal in S.A.No.1946 of 2000, the following substantial question of law has been framed: 'In view of the fact that as on date, the plaintiff has an order in his favour in respect of the land covered under schedule 3 of the plaint under the provisions of Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, can the defendant be compelled in law relying upon the definition of 'land' under Section 2 of the Tamil Nadu Cultivating Tenants Protection Act to provide a right of way to the plaintiff to reach is leasehold land through the property descirbed in schedule 2 of the plaint? 14. The learned counsel appearing for the appellants submitted that Ex.A1 and Ex.A2 filed in S.A.No.889 of 1999 clearly shows that the suit property was mortgaged in favour of one Sakthivel Marthandam and he is in possession of the property by cultivating the same. The said mortgagee has leased out the property in favour of the plaintiff. The plaintiff is cultivating the same by raising shadow crops and he has also filed an application to record his name as a tenant under Act 10 of 1969. Ex.A4, proceedings of the Tahsildar clearly shows that the mortgagee was shown as a respondent and after due enquiry, the name of the plaintiff has been recorded as a tenant. Hence, it is the contention of the learned counsel appearing for the appellants that once the name of a person entered in the Register as per Act 10 of 1969, there will be a presumption as to the correctness of the entries made in the Register and therefore, the Civil Court cannot go into the question with regard to the entries and correctness of the entries made under Act 10 of 1969. Hence, it is his contention that the trial Court, after analysing the entire the documents, granted injunction, whereas, the first appellate Court, disbelieved the entry. Going to the validity of the entries is beyond the jurisdiction of the first appellate Court. Hence, it is his contention that the Civil Court ought not to have decided the validity of the entries. Admittedly, challenging the proceedings of the Tahsildar, Thiruchendur, appeals have also been filed by the respondents and a Writ Petition has also been filed and the same got dismissed. Hence, it is his contention that the Civil Court ought not to have decided the validity of the entries. Admittedly, challenging the proceedings of the Tahsildar, Thiruchendur, appeals have also been filed by the respondents and a Writ Petition has also been filed and the same got dismissed. In such view of the matter, the first appellate Court had non-suited the plaintiff on the ground that the entries have been obtained fraudulently and the same cannot be sustained in the eye of Law. 15. It is the further contention of the learned counsel appearing for the appellants that there is no evidence to show that the mortgaged money has been discharged and the property has been redeemed. Hence, it is the contention of the learned counsel appearing for the appellants that the judgment of the first appellate Court is not based on proper appreciation of evidence and Law. It is his further contention that now they have been forcibly dispossessed from the property and the application filed for mandatory injunction was also dismissed by the first appellate Court. Hence, it his submission that the trial Court judgment be restored. It is his further submission that the second suit with regard to the claiming of easement right is always subject to the result of the first suit, which is filed for permanent injunction. 16. The learned counsel appearing for the respondents submitted that the appellants having suffered a decree for eviction in a previous round of litigation in respect of the building which is just adjacent to the present suit properties, manipulated the entries with the connivance of the mortgagee and filed the present suits by indirect method. The eviction order passed against him in the previous occasion in R.C.O.P.No.25 of 1983, have reached its finality and the SLP, filed as against the same, was also dismissed. Only in order to prevent the execution, the present suits have been filed. Hence, it is the contention of the respondents that even during the pendency of the suit, the earlier order of the Rent Controller has been put into execution and the plaintiff has been evicted from the premises. It is the further contention of the learned counsel appearing for the respondents that the presents suits are nothing, but mere an attempt to thwart the Rent Controller proceedings. It is the further contention of the learned counsel appearing for the respondents that the presents suits are nothing, but mere an attempt to thwart the Rent Controller proceedings. Therefore, merely on the basis of the entries, which was obtained behind the back of the owner deceptively cannot give any right and liability under the Law. The presumption under Law cannot be attached to Ex.A4, since such entries are not based on a proper enquiry and are not genuine entries. The presumption of such entry can be drawn only as against the genuine entries and not against the entries obtained deceptively. Hence, prays for dismissal of the appeals. In support of his submission, he relied upon the following judgments: 1. A.V.Papayya Sastry and others Vs. Government of A.P and others reported in (2007) AIR (SC) 1546; and 2. Jayarama Naidu Vs. Meenakshi Ammal and another reported in 1999 (1) CTC 566. 17. From the materials placed, it is seen that the plaintiff was inducted as a lessee by the mortgagee in respect of 48 cents of the land. It is an undisputed fact that one of the building, adjacent to the present suit properties, was in possession of the plaintiff and eviction proceedings has also been taken, which has reached its finality. It is not disputed by both sides that the possession was taken pursuant to the Rent Control proceedings, during the pendency of the appeal before the first appellate Court. Be that as it may, it is the main contention of the plaintiff that he is a cultivating tenant. The original owner of the property has mortgaged the property to one Sakthivel Marthandam and the said Sakthivel Marthandam, said to have leased out the property in favour of the plaintiff. On perusal of Ex.A1 and Ex.A2, the mortgage deeds, makes it very clear that what was mortgaged in favour of Sakthivel Marthandam is only a house site. Recital in those documents makes it very clear that the subject matter of the mortgage was only a vacant house site. Therefore, using the above lands for agricultural or horticulture is highly improbable. It is not the case of the plaintiff that the original owner has inducted him in to possession of the property. The contention is that he was in possession as a lessee only through the mortgagee. Therefore, using the above lands for agricultural or horticulture is highly improbable. It is not the case of the plaintiff that the original owner has inducted him in to possession of the property. The contention is that he was in possession as a lessee only through the mortgagee. When the mortgage itself in respect of a vacant house site, the mortgagee again transferring the interest in the immovable property to a lessee highly improbable. However, the alleged lease deed between the mortgagee and the plaintiff has not seen the light of the day. 18. In the proceedings of the Tahsildar in T.R.No.5 of 1981, dated 06.08.1983, which was marked as Ex.A4, the name of the plaintiff has been recorded as a tenant. It is curious to note that the respondent in the above proceedings is none other than the original mortgagee. The title owner has not been shown as a respondent. It is also to be noted that as on the date of alleged entry, the original mortgagee has already assigned the mortgage in favour of his wife Indirani. It is also admitted by both parties. When a person had no interest in the immovable property, then the transferring of his right in favour of the lessee is highly improbable. Though the authorities under Act 10 of 1969 alone are competent to make such entries, merely because such entries are made at the behest of some body without proper enquiry or without hearing the original owners, such entries cannot be presumed to be genuine. The object of the Act as envisaged under Section 15 of Act 10 of 1969 is only in respect of genuine entries made as per Law and not to the entries made deceptively and behind the back of a person, who had no right or interest in the immovable properties. Therefore, it cannot be said that the powers of Civil Courts are totally ousted, merely because the entries are made under Act 10 of 1969. When there is no relationship of landlord and tenants between the owner and the so called person, who gain such entry, the power of Civil Courts cannot be ousted merely on the basis of the entries recorded under the Act 10 of 1969, which is also without any proper enquiry and such entries were deceptively made. When there is no relationship of landlord and tenants between the owner and the so called person, who gain such entry, the power of Civil Courts cannot be ousted merely on the basis of the entries recorded under the Act 10 of 1969, which is also without any proper enquiry and such entries were deceptively made. It is also relevant to note that the respondent herein had purchased the property through Ex.A3, dated 13.08.1982. The plaintiff is not a stranger and already there were proceedings between the defendant and the plaintiff and eviction proceedings were continued by the respondents herein, which resulted in eviction of the plaintiff. 19. Therefore, having known that the respondent has become the owner of the property, as early as on 13.08.1982, registering his name as a tenant in the year 1983 i.e., on 06.08.1983, makes it very clear that such entries are nothing but a result of the fraud and deception by suppressing material facts. Instead of showing the name of the original owner as respondent showing the name of the mortgagee as respondent when he has already assigned the right in favour of his wife Indirani and obtaining entries, in the view of the Court is nothing, but by playing fraud on the authorities. Therefore, no presumption can be attached or drawn to such entries. Therefore, the Civil Court is powerless to go into the fraud committed and deception played, while obtaining such entries under the Act 10 of 1969. It is also now admitted that the plaintiff is also not in possession of the property. Though it is contended by the appellants that they were forcibly dispossessed, it is to be noted that in the previous litigations, he was evicted from the building occupied by him, which is just adjacent to the present properties. 20. In such view of the matter, this Court is of the view that merely on the basis of Ex.A4 proceedings, one cannot claim right as a cultivating tenant. Except, Ex.A4, there are no other materials available to show that lands were under cultivation continuously. In such view of the matter, the judgment of the first appellate Court does not require any interference. Accordingly, the questions of law are answered against the appellants. 21. In the result, S.A.No.889 of 1999 is dismissed. 22. Except, Ex.A4, there are no other materials available to show that lands were under cultivation continuously. In such view of the matter, the judgment of the first appellate Court does not require any interference. Accordingly, the questions of law are answered against the appellants. 21. In the result, S.A.No.889 of 1999 is dismissed. 22. In so far as S.A.No.1946 of 2000 is concerned, admittedly, both the Courts below have found that the plaintiff is not entitled to any relief, as the plaintiff has failed to establish that he is a cultivating tenant and entries are made deceptively and therefore, claiming easement right over the second schedule of property does not arise at all. Accordingly, the findings of both the Courts below in that aspect also stands confirmed. Accordingly, S.A.No.1946 of 2000 also stands dismissed. No costs.