Madras High Court
Ramalingam vs Jayaraman on 12 October, 2011
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.10.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.851 of 1994 Ramalingam ... Appellant/Respondent/Plaintiff Vs. Jayaraman ... Respondent/Appellant/1st Defendant Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 09.12.1993 made in A.S.No.168 of 1990 on the file of the Sub Court, Virudhachalam, reversing the Judgment and Decree of the trial Court dated 05.10.1990 made in O.S.No.598 of 1982 on the file of the Principal District Munsif, Virudhachalam. For Appellant : Mr.D.Shivakumaran For Respondent : Mr.S.Parthasarathy, Senior Counsel For M/s.J.Ramakrishnan J U D G M E N T
The Appellant/Plaintiff has filed the instant Second Appeal as against the Judgment and Decree dated 09.12.1993 in A.S.No.168 of 1990 passed by the Learned Sub Judge, Virudhachalam.
2.Plaint Facts:-
(a)The Plaintiff and the Defendants are relations. The suit properties in A and B schedules landed and other properties at Elumichai Hamlet of U.Mangalam Village in Virudhachalam Taluk belonged to the Appellant/Plaintiff.
(b)The properties described in the Plaint schedules were the properties of the Appellant/Plaintiff, which were looked after by the Respondent/1st Defendant with the help of his relations viz., Defendants 2, 3 and 4 at the instance of the Appellant/Plaintiff out of the funds given by the Appellant. The Appellant/Plaintiff used to pay Rs.200/- per year in return of service of the Respondent/1st Defendant. The Appellant/Plaintiff was very prompt in payment every year after harvest or otherwise.
(c)The Appellant/Plaintiff paid his consideration as mentioned supra to the Respondent/1st Defendant in the middle of February 1982 (at the end of Tamil month Thai) and sent him away, as he proved to be unworthy of the confidence reposed on him by the Appellant/ Plaintiff and nominated one Ponnambalam son of Samidurai Kondiar in his place on same terms.
(d)The Respondent/1st Defendant feeling aggrieved of his replacement started giving trouble to the Appellant/Plaintiff and his nominee by creating situations and conditions not conducive for the Appellant/Plaintiff or his nominee to cultivate and manage the said landed and other properties without his co-operation and support. The Defendants were threatened that they were going to take possession of the said properties talking full advantage of the absence of the Appellant/Plaintiff at Elumichai village and bring them under plough when there was rainfall.
(e)The Respondent/1st Defendant commands some kind of influence in the Village and also had a large body of hidemen to support him. The Appellant/Plaintiff apprehended that the Respondent/ 1st Defendant and others would certainly implement their plan by taking possession of landed and other properties at Elumichai village and bring them under plough when there was rainfall causing heavy pecuniary loss to him.
(f)The lands were to be prepared for raising some crop or other when there was rainfall. The Appellant/Plaintiff pursuaded the Respondent/1st Defendant and others to be reasonable, but in vain. Hence, it was necessary for the Appellant to file a suit for permanent injunction and in the alternative for possession also. The Defendants 1 to 4 had no right or title to the suit properties. They had no right to deny the Appellant/Plaintiff's title to the suit properties.
(g)Therefore, the Appellant/Plaintiff had filed the suit for the reliefs of declaration and permanent injunction or in the alternative for possession against the Defendants 1 to 4 restraining them from interfering with the peaceful possession and his enjoyment of the suit properties.
3.Written Statement Pleas of the Respondent/1st Defendant:
(a)It was wrong to state that the Appellant/Plaintiff and the Defendants were close relatives. Also, it was false to mention that B schedule properties belonged to the Appellant/Plaintiff. In the suit properties, A schedule properties were in enjoyment of the Respondent/1st Defendant and that alone was true. The other averments that the 1st Defendant with the help of Defendants 2, 3, 4 was paid a sum of Rs.200/- per year by the Appellant/Plaintiff was a false one. The other averments of the Appellant/Plaintiff that since he lost confidence on the Respondent/1st Defendant, he appointed one Ponnambalam S/o. Samidurai Kondiar on some terms etc. were false and these things were to be established by the Appellant/Plaintiff.
(b)The Appellant/Plaintiff was not in possession of the suit properties and further not enjoyed the same. The Respondent/1st Defendant's father for the last 15 years in respect of A schedule properties was doing cultivation on lease taken from Appellant/ Plaintiff's maternal second generation grand-father Kuppusamy Padayachi also paid the lease amount. The said Kuppusamy Padayachi died in the year 1972. Thereafter, the said A schedule properties were enjoyed by the Respondent/1st Defendant's father by means of cultivation. The Appellant/Plaintiff claiming to be an heir every year took a sum of Rs.100/- from the Respondent/1st Defendant's father. The Respondent/1st Defendant along with his father was enjoying the A schedule properties. For the last 4 years, the Respondent/1st Defendant's father fell sick and hence, the Respondent/1st Defendant personally enjoyed the suit properties and also paid lease amount. The Respondent/1st Defendant's died five months ago and with a bad intention to remove the Respondent/1st Defendant. The Appellant/ Plaintiff was acting against the cultivating Tenancy Protection Act and also giving unnecessary troubles to him.
(c)In A schedule suit properties, the Respondent/1st Defendant ploughed and kept the land for throwing seeds and during the last Vaikasi month 22nd after rainfall before filing of the suit, the 1st Defendant had sworn the seeds. The Appellant/Plaintiff at any point of time had not entered into the suit property either in person or through some other person. The Respondent/1st Defendant was paying the lease amount to the Appellant/Plaintiff without any default. The Respondent/1st Defendant did not receive any service amount and had not cultivated the lands. There was no cause of action for the suit. The Appellant/Plaintiff was not entitled to claim the relief of permanent injunction, since there was no prima facie case.
4.Before the trial Court, in the suit, the Appellant/Plaintiff sought the relief of declaration of his title to the suit properties and also prayed for the relief of permanent injunction restraining the Defendants from interfering with his peaceful possession and enjoyment over the suit properties in any manner whatsoever. Furthermore, the Appellant/Plaintiff had prayed that he be put into possession of the suit properties free of obstruction by the Defendants if need be through Court.
5.Added further, the Appellant/ Plaintiff, in the event of relief of possession being granted, prayed for mesne profits to be determined by means of separate proceedings under Order 20 Rule 12 of the Civil Procedure Code etc.
6.The trial Court framed 1 to 4 issues. On behalf of the Appellant/Plaintiff, witnesses P.W.1 and P.W.2 were examined and Exs.A.1 to A.9 were marked. On the side of the Defendants, witnesses, D.W.1 and D.W.2 were examined and Exs.B.1 to B.10 were marked.
7.On an appreciation of oral and documentary evidence available on record, the trial Court held that the Appellant/Plaintiff was entitled to the relief of declaration in respect of 1 to 4 items in A schedule suit property and also the B schedule item of property. Moreover, the 1st Defendant was directed to hand over these properties in the hands of Appellant/Plaintiff. The trial Court deleted the 3rd Defendant and also the suit 5th item of A schedule property. The trial Court relegated the mesne profits proceedings by means of a separate proceedings (till possession being handed over as per Order 20 Rule 12 of C.P.C.) and accordingly, granted a Decree.
8.Being dissatisfied with the Judgment and Decree of the trial Court dated 05.10.1990 in O.S.No.598 of 1982, the 1st Defendant in the suit had projected A.S.No.168 of 1990 on the file of Sub Judge, Virudhachalam, as an aggrieved party.
9.The First Appellate Court viz., Learned Sub Judge, Virudhachalam, in Appeal, confirmed the finding of the trial Court to the effect that A schedule 1 to 4 items and B schedule property belonged to the Appellant/Plaintiff. However, in respect of 1 to 4 items of properties, it set aside the relief of possession being handed over to the Appellant/Plaintiff by the trial Court. Liberty was given to the Appellant/Plaintiff to claim mesne profits as per Order 20 Rule 12 of Civil Procedure Code. The Cross Appeal filed by the Appellant/Plaintiff praying for cost of the suit was dismissed. Thus, it allowed the Appeal in part, leaving the parties to bear their own costs.
10.Feeling dissatisfied with the Judgment and Decree dated 09.12.1993 in A.S.No.168 of 1990 being allowed in part by the First Appellate Court, the Appellant/Plaintiff had filed the present Second Appeal before this Court.
11.At the time of admission of this Second Appeal, this Court framed the following Substantial Questions of Law:
"1.Whether the lower appellate Court is correct in holding that the respondent is a cultivating tenant in the absence of any legal proof especially when his claim to record his name in the tenancy records has been turned down by the competent authority under Ex.P.9?
2.Is the lower appellate Court right in observing that to prove the surrender of possession physical delivery is not always necessary as provided under Section 111(F) of The Transfer of Property Act?
3.Is the lower appellate Court correct in delivering the impugned judgment overlooking the fact that the respondent is estopped from denying the very right of the appellant to the suit property, particularly, with regard to the possession of the same?
4.Is the respondent a cultivating tenant as per the adduced materials and evidence as contemplated by law?"
The Contentions, Discussions and Findings on Point Nos.1 and 4:
12.The Learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court failed to take into account that the Respondent did not take any steps to register himself as a cultivating tenant, when he claimed to be in possession of the property for more than 15 years till the filing of the suit and this would point out that the Respondent was employed by the Appellant/Plaintiff as a Karvari and not as a cultivating tenant.
13.The Learned Counsel for the Appellant/Plaintiff urges before this Court that the Respondent/1st Defendant paid kist in respect of suit properties surreptitiously by filing an application claiming himself that he purchased the property through his father.
14.Advancing his arguments, it is the contention of the Learned Counsel for the Appellant/Plaintiff that the Respondent/1st Defendant after receiving patta as Ex.B.9-Virudhachalam Tahsildar's Order dated 23.04.1987 came out with a false claim that he was enjoying the property as a Cultivating Tenant.
15.Expatiating his submissions, the Learned Counsel for the Appellant/Plaintiff contends that the Respondent/1st Defendant surrendered the suit property to the Appellant/Plaintiff and subsequently, he unlawfully trespassed into the suit properties. However, these aspects were not adverted to by the First Appellate Court in a real perspective.
16.In response, it is the contention of the Learned Senior Counsel for the Respondent that the First Appellate Court took into account the attendant facts and circumstances of the case in an integral fashion and also scrutinised the oral and documentary evidence produced on both sides and came to the right conclusion that in respect 1 to 4 items of A schedule properties and in respect of B schedule property, the Appellant/Plaintiff had a right over the same and accordingly, granted the relief of Declaration, confirming the finding of the trial Court in this regard. Further, it rightly set aside the relief of possession in respect of A schedule 1 to 4 items granted by the trial Court and prayed for dismissal of the Second Appeal.
17.The Learned Counsel for the Appellant/Plaintiff cites the decision of this Court in Johnson V. Chathan Eravi Ollittar Trust, Urithiran Kalkandan Sasthankoil Family Trust, rep. By its Trustees, Kanniyakumari District and others, (2008) 3 MLJ 711 at page 712 wherein it is held that 'A defaulting tenant, is not entitled for the relief of permanent injunction, against the real owner'. Also, in the aforesaid decision, it is laid down that 'the Relief of permanent injunction will not be granted in favour of tenants when he is seeking to pre-empt the landlord from taking steps to evict the tenant on the ground of default in payments of rent and the continuance of the lease is in violation of the scheme decree.'
18.He also relies on the decision of this Court in Rajamanikkam & 3 others V. Abdul Rashid (died) represented by his power agent wife Mahathipa Beevi & 9 others, 2008-2-L.W.1138 at page 1139 wherein it is held that 'the first defendant had admitted that his name has not been registered as a cultivating tenant in the concerned records and since the first defendant could not prove that he was a cultivating tenant, registered in accordance with the provisions of the Act, it was held that the objections raised on his behalf that the trial Court does not have the jurisdiction to try the suit cannot be accepted.' Furthermore, it is observed that 'since the first defendant had not attempted to register his name as a cultivating tenant in spite of his claim that he has been cultivating the suit land for more than 20 years, pursuant to an oral agreement, the contention raised on behalf of the first defendant that he has been cultivating the suit land as a cultivating tenant cannot be accepted and also it was noted that such a claim has not been made in the written statement filed on behalf of the defendants.'
19.However, the Learned Senior Counsel for the Respondent/1st Defendant cites the decision of this Court in Manicka Gounder and another V. Lakshmi Ammal rep. By Power Agent Mr.Kanagasundaram, 2002-3-L.W.-281 wherein it is held that 'Admission is the best evidence that the opposing party can rely upon, and though not conclusive, is decisive of the matter, unless withdrawn or proved erroneous'.
20.He invites the attention of this Court to the decision in J.M.Jeyachandran Samuel V. G.S.S.Masilamani, 2008-1-L.W.-323 at page 237 wherein it is held thus:
"20.Therefore, mere entry in the Record of Tenancy Rights Register does not confer by itself any right on a person as a cultivating tenant unless he satisfies the other requirements. It is common knowledge that there may be several persons fulfilling the requirements of the definition of a cultivating tenant, but their names may not be recorded in the Record of Tenancy Rights Register. One more aspect is that the sale agreement was supported by Ex.A4 and the consideration was supported by P.W.2, an attesting witness to the sale agreement. The evidence in Ex.A5 would also show that there was a balance sale consideration. Therefore, the plaintiff has proved that he was a cultivating tenant of the suit property. The non-entry of the record of tenancy rights will not defeat the claim of the plaintiff. Therefore, the Trial Court concluded that the plaintiff was a tenant and the only question that has to be decided is that the finding of the Civil Court has been completely vested from the jurisdiction is correct or not."
21.The evidence of P.W.1 (Appellant/Plaintiff) was that at the time of filing of the suit, he impleaded 4 Defendants and that the 2nd Defendant died during the pendency of the suit and during his life time, he had not defended the case and that the 3rd Defendant was the son of the 2nd Defendant and that he sold the 5th item of the suit property R.S.No.568/3 64 cents to the 3rd Defendant. As such, the 3rd Defendant and the 5th item of the suit property were to be removed from the suit and in respect of 1 to 4 items and in respect of the B schedule vacant land, he was proceeding with the suit.
22.It was the further evidence of P.W.1 that 4th Defendant died during the trial of the case and during his life time, he had not defended the case and therefore, the suit was between himself and the Respondent/1st Defendant and that during the pendency of the present suit his mother filed O.S.No.2183 of 1983 [the correct year is 1973] in which he figured as the 2nd Plaintiff. Also, the said suit was filed against the Panduranga Padayachi and Ex.A.1 was the Decree copy dated 07.02.1976 and when O.S.No.2183 of 1973 was pending, his mother executed a Will and he withdrew the Will and in Cuddalore Court, a case relating to land acquisition was conducted and in the said case, he filed the Will and Ex.A.3 was the common order dated 04.01.1984 in L.A.O.P.No.161/82, 194/82 and 204/82 and he did not succeed in the Cuddalore Court and in Appeal before the District Court, he succeeded and the copy of Appeal Judgement dated 14.08.1985 in A.S.Nos.46 to 48/84 was Ex.A.4 and now the matter was pending before the Hon'ble High Court.
23.The evidence of P.W.1 was also to the effect that the Respondent/1st Defendant had no lease hold right in the suit property and it was not correct to state that from his grand-father period, the Respondent/1st Defendant was enjoying the property on lease.
24.P.W.1 in his cross examination deposed that the averment made in the Plaint that the 1st Defendant alone enjoyed the property till February 1982 was not correct and that after February 1982 the 1st Defendant was enjoying the suit property and that the suit property was not accepted by Kuppusamy on lease and that this property from the beginning was in enjoyment of Kuppusamy and Pondurangan and others and that he was keeping the kist receipts for 2 or 3 years and that it was not correct to state that the 1st Defendant's father took the property on lease and that he was not aware as to who was in balance of arrears in a year.
25.Further to a suggestion, P.W.1 stated that after the death of 1st Defendant's father, if Jayaraman paid the kist, then he might had paid the same.
26.Continuing further, it was the evidence of P.W.1 that regarding lease enquiry was pending with the Tahsildar and that for this property he employed the Respondent/1st Defendant as Karvari and after Jayaraman he employed Ponnambalam as Karvari and Ponnambalam was not looking after the property and from the year 1982 Jayaraman was enjoying the property unlawfully and that he paid a sum of Rs.200/- to the Respondent/1st Defendant as Karvari and that he did not issue notice to Jayaraman.
27.Apart from the above, it was the evidence of P.W.1 that he has sold the property to 3rd Defendant and that he has sold the property by mentioning that 3rd Defendant can enjoy the property but he has not mentioned about the lease of the Respondent/1st Defendant.
28.It was the evidence of P.W.2 that the suit property belonged to the Appellant/Plaintiff since the same was situated near his land and that during the year 1982 since Jayaraman as Karvari was not proper, the Appellant/Plaintiff asked him to look after the Karvari work and he informed him that he would be paid a sum of Rs.200/- for employing persons to cultivate the land after getting money from the land owner but he refused the same and therefore, he ploughed the land by employing a person which was prevented by the Respondent/1st Defendant and it was incorrect to state that the Respondent/1st Defendant cultivated the property on Lease.
29.P.W.2, in his cross examination, deposed that he had no record to show that he was a Karvari from the year 1982 and that he did not lodge a complaint against the Respondent/1st Defendant when he prevented him to plough the land.
30.The evidence of D.W.1 (Respondent/1st Defendant) was that there were totally 5 items of suit properties and that he was enjoying the same and his father was paying the Kuthagai amount to one Kuppusamy S/o.Kesava Padayachi and that the land was a barren land and his father paid a Lease amount of Rs.100/- to the said Kuppusamy and that his father was expired during the year 1972. After that his father was cultivating the land with the Appellant/Plaintiff on lease for which there was no record but only oral arrangement and that his father five years before his death was not keeping good health and hence, he was cultivating the land and after his father's death he was enjoying the property. Moreover, in Patta No.130 he had no other property and the kist receipts Exs.B.1 to B.7 were paid by him and the kist receipts paid by his father were not available and Ex.B.8 Application Tr.No.8/86 to record the lease was pending and that he was enjoying this property as a Cultivating Tenant and Tahsildar passed Ex.B.9-Order dated 23.04.1987 in his favour and in Ex.B.9, it was mentioned that his father paid the kist during the year 1968 and as against the Ex.B.9-Order dated 23.04.1987, no appeal was preferred by the Appellant/Plaintiff.
31.D.W.1, in his cross examination, deposed that even during the life time of his father, he agreed to take on Lease the property with the Appellant/Plaintiff but he could not state the year, date and month and he had not taken a receipt for payment of Lease amount and that his father was paying kist from 1973 till 1982 and he had no receipts other than Exs.B.1 to B.7.
32.It was the evidence of D.W.1 (in cross examination) that the Appellant/Plaintiff was the owner of the suit property and he did not know about the sale effected by the Appellant/Plaintiff in respect of property R.S.No.68/3-64 cents in favour of Ramalingam S/o.Amirthalingam and in that property, he had no lease hold right and that he was not denying the ownership of Appellant/Plaintiff in the suit property.
33.D.W.2, in his evidence, stated that after the death of D.W.1's father, the Respondent/1st Defendant was enjoying the land and apart from the Respondent/1st Defendant and his father, no one was enjoying the same and that the Respondent/1st Defendant and his father through their physical labour cultivated the land and the Respondent/1st Defendant was enjoying the suit property on Lease and that he had not cultivated the land on Karvari right.
34.Ex.A.1 was the Decree dated 07.02.1976 passed by the Learned District Munsif Court, Virudhachalam in O.S.No.2183 of 1973. The said Decree was a Compromise Decree between the Plaintiffs and the Defendants therein. In the said decree, the 2nd Plaintiff therein was declared to get 0.52 cents of 1st item and the entire item Nos.2, 3, 5, 6, 8 to 12, 14 to 22, 24 to 28, 31, 32, 38 to 49, 50 and 52 and also, the Defendants therein were directed to put the 2nd Plaintiff in possession of the aforesaid items free from objections and also the 2nd Plaintiff was given the liberty to take delivery of possession of the suit items through Court in execution of the decree at his costs and in regard to the relief of mesne profits, the same was dismissed.
35.Ex.A.3 was the common order dated 04.01.1984 in L.A.O.P.Nos.161/1982, 194/1982 and 204/1982 passed by the Learned Sub Judge, Cuddalore. In the aforesaid L.A.O.Ps., the Appellant/Plaintiff figured as 1st Claimant/1st Respondent. In the aforesaid Ex.A.3-Common order in L.A.O.Ps., it was ordered that out of the compensation awarded in L.A.O.P.Nos.161/1982, 194/1982 and 204/1982, the 3rd Claimant in L.A.O.P.Nos.161/82, 204/82 and the 6th Claimant in L.A.O.P.No.194/82 were to take half the amount and as per Compromise Judgment in O.S.No.2183 of 1973 in L.A.O.P.No.194/ 82, the Claimants 3 to 5 in respect of Survey No.169/1, 163/5 compensation amount awarded the half amount they were directed to take the same and the balance amount in all the three LAOPs were directed to be taken by the present Appellant/Ramalingam and accordingly, an award was passed.
36.In Ex.A.4-Judgment in A.S.Nos.46 to 48 of 1984 dated 14.08.1985 on the file of District Judge, South Arcot, Cuddalore, the Decree of the lower Court in all the LAOPs were modified to the effect that the 1st Claimant-Ramalingam (Appellant) was entitled to the entire compensation amount in LAOP.No.161/82 and further, he was directed to entire compensation amount in L.A.O.P.No.204/82 and the Claimants 3 to 5 in L.A.O.P.No.184/1982 were entitled to the compensation amount regarding R.S.Nos.169/1 and 169/5 in terms of their rights for those lands under Ex.A.5-Compromise Decree and that the 1st Claimant-Ramalingam (Appellant/Plaintiff) was entitled to the balance of compensation amount in O.P.No.194/1982.
37.The Respondent/1st Defendant filed kist receipts from Exs.B.1 to B.7 in his name. Ex.B.9 was the order of the Virudhachalam Tahsildar dated 23.04.1987 based on the application of Respondent/1st Defendant praying for transfer of patta in his name. The Tahsildar in Ex.B.9-order dated 23.04.1987, among other things, observed that the Appellant/Plaintiff claimsed right over the petition properties as per unregistered will of the year 1974 executed by his mother and further stated that the petition properties devolved upon him on succession from his parents but he did not produce the records and finally held that after judgment in O.S.No.598 of 1982, there was nothing wrong to amend the patta and in Village Accounts A Register Patta No.200 was standing in the name of Mu.Gangaiammal and in 10(1) Chitta 200 standing in the name of Ramalingam and Survey No.79/10 A Register 337 Survey number standing in the name of Thillaiammal and Gangaiammal and in 10(1) Chitta 128 standing in the name of Thillaiammal wife of Angarapadayachi which was contradictory to each other. Therefore, on the basis of enquiry and on perusing Village Accounts, the accounts were corrected and in respect of Survey Nos.79/10 (Patta No.337), 79/1 (Patta No.200), 79/3 (Patta No.200), 79/8 (Patta No.200) and 68/3 (Patta No.258), after correction, the name of the Respondent/1st Defendant and Thillaiammal, Jayaraman were entered.
38.In the instant case, the Appellant/Plaintiff, in the Plaint, tacitly stated that the Respondent/1st Defendant was looking after the properties with the help of his relations Defendants 2, 3 and 4 at his instance etc. P.W.1 also in his evidence stated that the Respondent/1st Defendant after February 1982 was in possession of the suit properties. But in the Plaint, he stated that after February 1982, the Respondent/1st Defendant was not in possession of suit properties. Therefore, there was discrepancy in the evidence of P.W.1 and the Appellant/Plaintiff himself was not quite sure as to when the Respondent/1st Defendant was thrown out of possession from the suit properties, therefore, this Court comes to an inevitable conclusion that the Appellant/Plaintiff had no cause of action to file the suit against the Respondent/1st Defendant.
39.That apart, P.W.1, in his cross examination, clearly deposed that the Respondent/1st Defendant after February 1982 was enjoying the suit properties. But, in the Plaint, the Appellant/Plaintiff stated in paragraph 3 that in the middle of February 1982, the Respondent/1st Defendant, at the end of Tamil month Thai, was sent out of the property by the Appellant/Plaintiff. As such, it was candidly clear that the Appellant/Plaintiff did not know from what period the Respondent/1st Defendant was in possession of A schedule item 1 to 4 properties. Just because the Respondent/1st Defendant had not recorded his name as Cultivating Tenant in the concerned register and further, because of his omission to mention the amount of lease which he paid would not defeat the case of the Respondent/1st Defendant that he was not a Cultivating Tenant. It was to be remembered that the Record of Tenancy Rights Register would not confer by itself any right on a person as a cultivating tenant unless he satisfied the other requirements under the Tamil Nadu Cultivating Tenants Protection Act, 1955.
40.It is the categorical evidence of D.W.1 (Respondent/1st Defendant) that his application Tr.No.8/86-Ex.B.8 to register his name as a Cultivating Tenant was pending. A perusal of Ex.B.8 dated 06.08.1990 showed that in respect of Survey No.79/10 measuring 0.30 cents, 79/1 measuring 0.50, 79/3 measuring 0.40, 79/8 measuring 0.59 and Survey No.68/3 measuring 0.64 cents, the Record Officer-cum-Tahsildar, Virudhachalam issued a notice dated 06.08.1990 mentioning that enquiry would be held on 20.08.1990 at 11'o clock in connection with Tr.No.8/86 application submitted by the Respondent/1st Defendant. The opposite party was mentioned as the Appellant/Plaintiff (M.Ramalingam). As a matter of fact, Ex.B.8 application of the Respondent/1st Defendant related to an enquiry to be conducted as per Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act X of 1969).
41.P.W.1, in his evidence (in cross examination) deposed that he paid money to the Karvari work and during the harvest period he used to harvest and take the same and that from the year 1982, the Respondent/1st Defendant was enjoying the property as a Karvari and before the year 1982, he used to harvest and take the crop. This admission of P.W.1 affirmed the fact that the Respondent/1st Defendant was enjoying the items 1 to 4 of A schedule properties (Though the Respondent/1st Defendant claimed his enjoyment as a Cultivating Tenant). Further, on what particular date P.W.1 (Appellant/ Plaintiff) took possession of the 1 to 4 items of A schedule properties was not made mention of and also he had not categorically stated in which year, he appointed different persons to look after the properties other than the Respondent/1st Defendant.
42.It is useful to refer to Section 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act, 1953 which defines "cultivating tenant" as:
"2[(aa) "Cultivating tenant" -
(i)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
(ii) includes -
(a)any such person who continues in possession of the land after the determination of the tenancy agreement;
(b)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;
(c)a sub-tenant if he contributes his own physical labour or that of any member of his family in the cultivation of such land; or
(d)any such sub-tenant who continues in possession of the land notwithstanding that the person who sublet the land to such sub-tenant ceases to have the right to possession of such land; but
(iii)does not include a mere intermediary or his heir;] Explanation.- A sub-tenant shall be deemed to be a cultivating tenant of the holding under the landlord if the lessor of such sub-tenant has ceased to be the tenant of such landlord]"
43.As per Section 2(e) of the Act, "landlord" in relation to a holding or part thereof means the person entitled to evict the cultivating tenant from such holding or part.
44.Further, Section 2(ee) of the Act speaks as follows:
"[(ee) a person is said to carry on personal cultivation on a land when he contributes his own physical labour or that of the members of his family in the cultivation of the land;]"
45.Indeed, only the authority competent under the Tamil Nadu Cultivating Tenants Protection Act, 1955 can declare a person as a cultivating tenant. It is not open to the Civil Court to declare a person as a cultivating tenant, however, it is open to the Civil Court while granting injunction incidentally to go into the question whether one is a cultivating tenant as per decision K.M.Balasundaram and another V. Narayanasamy and another, (2001) 1 MLJ at page 162 (Mad).
46.Section 6 of the Tamil Nadu Cultivating Tenants Protection Act, 1955 speaks of as follows:
"6.Bar of jurisdiction of Civil Courts.- No Civil Court shall, except to the extent specified in Section 3(3), have jurisdiction in respect of any matter which the Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall be granted by any Court in respect of any action taken or to be in pursuance of any power conferred by or under this Act."
47.Also, Section 6-A of the Act under the head 'Transfer of certain suits to the Revenue Divisional Officer by Civil Courts' enjoins as follows:
"If in any suit before any Court for possession of, or injunction in relation to any land, it is proved by affidavit or otherwise that the defendant is a cultivating tenant entitled to the benefits of this Act, the Court shall not proceed with the trial of the suit but shall transfer it to the Revenue Divisional Officer who shall thereupon deal with and dispose of it as though it were an application under this Act and shall all the provisions of this Act shall apply to such an application and the applicant."
48.At this stage, this Court cites the decision in Lakshmikanthan and others V. Thiruvengadam and another, 1992-Vol-1-MLJ-297 wherein it is held hereunder:
only when the primary relief sought for is one of declaration of status of their party as a cultivating tenant, the civil Court may not have jurisdiction to decide the controversy. The provisions of Sec.6 of the Tamil Nadu Cultivating Tenants' Protection Act are not attracted when the party already in possession is dispossessed when the court is seized of the matter. The rent court does not have jurisdiction to try the matter in dispute in this Case.
49.In M.K.S.Gopalakrishna Chettiar and another V. N.Sankaramoorthy and others, 1979-I-MLJ-225, this Court has laid down as follows:
A close reading of sub-section (1)(a) of section 3 of the Tamil Nadu Cultivating Tenant's Arrears of Rent (Relief) Act, 1972 reveals that there are three important conditions for the application of this section: (i) arrears of rent, (ii) payable by a cultivating tenant to the landlord and (iii) outstanding on the 30th June, 1971. In the instant case there were arrears of rent. In fact, the promissory notes themselves contained the recitals that they had come to be executed only towards the arrears of rent due by the tenants to the landlady. The respondents were cultivating tenants. The real question was however, whether the husband, in whose favour the promissory notes had been executed, could be called 'landlord' within the meaning of the sub-section. In this case, no doubt, a power of attorney had been executed in favour of the husband. From that it could not be held that he was entitled to evict because he did so as a agent of the landlady. Therefore it was abundantly clear that there was no relationship of landlord and tenant as between the husband of the landlady and the tenants.
50.In Narayana Padayachi Vs Sundaralingam and another, 1966-II-MLJ-577, it is, among other things held thus:
Eviction of a cultivating tenant who falls within the purview of section 3(2)(b) can only be by an application to the Revenue Divisional Officer and not by execution of a decree in a civil Court. A combined reading of sub-sections (1), (2) and (4) (a) of section 3 clearly leads to the result that if a cultivating tenant falls within the purview of sub-section (2) of section 3 the only remedy of the landlord notwithstanding a decree of Court is to apply to the Revenue Divisional Officer for eviction and not to resort to the civil Court for eviction by way of an execution of a decree.
51.In Rasan Muthirian and others V. Periaswami Muthirian, 1966-Vol-1-MLJ-308, it is held as follows:
Whether the landlord or tenant wants to get possession of the leased property they should satisfy whether the extent is more than 6 2/3 acres or less than 6 2/3 acres. When there is dispute as to the extent, in a suit by a tenant in the civil Court for injunction against his landlord from interfering with his possession the proper thing would be to transfer the suit to the Revenue Court for giving a finding whether the plaintiff asking for injunction is in possession of more than 6 2/3 acres of land. After the receipt of the finding the civil Court will dispose of the suit according to law and on merits.
52.Inasmuch as the Respondent/1st Defendant was enjoying the items 1 to 4 of A schedule suit properties based on oral and available materials on record and in view of the fact that the Respondent/1st Defendant's application Ex.B.8-Application Tr.No.8/86 dated 06.08.1990 was pending before the Competent Authority to record his name as a Cultivating Tenant, this Court comes to an inevitable conclusion that the Respondent/1st Defendant was found to be in possession of suit 1 to 4 items of A schedule properties, on evidence. It cannot be gainsaid that, in law, patta does not confer title to a property. However, this Court leaves open the question whether the Respondent/1st Defendant was a Cultivating Tenant or not, since the same was to be decided by the Competent Authority under the Tamil Nadu Cultivating Tenants Protection Act, 1955 [and not by the Civil Court of law much less the First Appellate Court in the instant case] and accordingly, the Point Nos.1 and 4 are so answered.
The Contentions, Discussions and Findings on Point Nos.2 and 3:
53.The rule of implied surrender was based on equity, justice and good conscience. It applied to agricultural leases also as per decision Cheekati Kuriminaidu V. Karri Padmanabham AIR 1964 Appellant/ Plaintiff 539. Implied surrender i.e. Surrender by operation of law, would arise (a) by the creation of a new relationship; or (b) by relinquishment of possession, if there was an yielding up of possession by the Lessee and taking over of possession by the Lessor as per decisions Ramayan Prasad V. Gulabo, AIR 1967 Pat 35: Gopiram Aggarwal V. Sitaram Churiwala, (1983) 2 Rent CJ 550 (551, 552 ) (SC). It was created by the acceptance of, but not by the mere agreement for, a new relation which, in effect, estopped the Lessee from setting up the old one.
54.It was important that for the new lease to come into play as a surrender of the old one, the new lease must be operative. The term 'implied surrender' included all those cases where the law implied a surrender from some unequivocal conduct of both the parties, which was inconsistent with the continuance of the existing tenancy as per decision J.J.Pancholi V. Sridharjee, AIR 1984 All 130. Such surrender was the act of the law, and takes place in spite of the intention of the parties. Implied surrender was often a question of fact depending upon the intention of the parties which is to be gathered from their conduct. Implied surrender would come by way of acceptance of a new lease, or by an unequivocal giving up of possession by the lessee, or by re-letting to another person by the landlord, or by accepting of a sub-tenant as his tenant by the landlord. On surrender the estate vested immediately in the Lessor. If the Lessee accepted a new lease, whether of the whole or part of the demised premises, it was a surrender for the whole or part. In the latter case, it survived for the residue as per decision Venkayya V. Subbarao, AIR 1957 Appellant/Plaintiff 619 (626).
55.Lease of a property was a valuable right and its implied surrender would not be rightly inferred. In the present case, the conduct of the Respondent/1st Defendant did not show that he surrendered his tenancy to and in favour of the Appellant/Plaintiff.
56.The Respondent/1st Defendant took a plea in the written statement that the Appellant/Plaintiff could not spoil his right and enjoyment of the suit properties as per Cultivating Tenants Right. This Court opines that it is factually erroneous one to assume that the Respondent/1st Defendant had denied the ownership of Appellant/ Plaintiff in respect of the suit properties. Since the Respondent/1st Defendant claimed that he was a Cultivating Tenant and in view of the fact that he was found to be in possession and occupation of the items 1 to 4 of A schedule properties and also because of the another fact that his Transfer Application No.8/86 dated 06.08.1990 was pending before the Competent Authority, the Point Nos.2 and 3 do not arise for determination at all.
57.In the result, it is held by this Court that the Appellant/ Plaintiff is the owner of the suit properties viz., 1 to 4 items of A schedule properties and the B schedule property and accordingly, the relief of Declaration is granted. Since the Respondent/1st Defendant was found to be in possession of the suit properties, the Appellant/ Plaintiff is not entitled to claim the relief of permanent injunction as prayed for by him in the Plaint, because of the simple reason that the Respondent/1st Defendant's Application in Tr.No.8/86 dated 06.08.1990 claiming Cultivating Tenants Right was pending before the Competent Authority. Since the question whether the Respondent/1st Defendant was a Cultivating Tenant or not was left open by this Court to be decided by the Competent Authority, the Order 20 Rule 12 of Civil Procedure Code mesne profits proceedings were also left open. Viewed in that perspective, the Second Appeal is disposed of, leaving the parties to bear their own costs.
sgl To
1.The Subordinate Judge, Virudhachalam.
2.The District Munsif, Virudhachalam