Madras High Court
Namasivayam vs Ramachandran on 21 March, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Second Appeal No.255 of 2005 Namasivayam ..Appellant -Vs- 1. Ramachandran 2. Sampathkumar 3. G.Nagarajan ..Respondents Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 19.11.2004 passed in A.S.No.255 of 2003 on the file of the Additional District Judge (Fast track Court No.3) Namakkal confirming the judgment and decree dated 12.6.2003 in O.S.No.374 of 2000 on the file of the Additional District Munsif, Namakkal. For Appellant : Mrs.AL.Ganthimathi For Respondents : Mr. K.Thilageswaran J U D G M E N T
This appeal is directed against the judgment and decree passed by the first appellate Court in A.S.No.255 of 2003 dated 19.11.2004 in confirming the judgment and decree passed by the trial court in O.S.No.374 of 2000 dated 12.6.2003.
2. The appellant herein is the plaintiff and the respondents were the defendants before the trial Court.
3. The case of the plaintiff as stated in the plaint before the trial court would be as follows:
The suit schedule property is an agricultural land. The suit property belonged to the defendants 1 and 2. As per the oral lease, one Ganapathy Pillai, father of the plaintiff and the 3rd defendant agreed to be the cultivating tenant and to give 20 bags of paddy per year to the defendants as rent. On that basis, he was in possession and enjoyment of the suit property as a cultivating tenant and was paying 20 bags of paddy per year. Accordingly, the plaintiff's father was in possession and enjoyment of the suit property for over 23 years and died on 19.1.2000. After the death of their father, the plaintiff and the 3rd defendant who are the legal representatives were cultivating the suit property belonging to the defendants 1 and 2 and was paying 20 bags of paddy per year to the defendants promptly. Since it was an oral lease agreement, no receipt was issued by the defendants 1 and 2 to the plaintiff. However, a certificate dated 13.8.2000 was issued by the Village Administrative Officer to the plaintiff regarding the cultivation of the suit property by the plaintiff and the 3rd defendant. The defendants 1 and 2 along with their men forcibly tried to evict the plaintiff and the 3rd defendant from the suit property. Hence, the suit has been filed by the plaintiff for permanent injunction against the defendants from interfering with the peaceful possession and enjoyment of the suit property as a cultivating tenant otherwise than in accordance with law.
4. The objections raised by the defendants 1 and 2 in the written statement would be as follows:
The suit is not maintainable in law. Except orally stating that the plaintiff was the cultivating tenant of the suit property, the plaintiff has not produced any valid document to prove the same. It is an admitted case that the suit property belongs to the defendants. The defendants have been paying the property tax and other payments regarding the suit property from the date of the sale deed. The patta, chitta adangal etc. stands in the name of the defendants. The defendants are doing textile business in the town and having provisional shop also. The plaintiff's father was working as a farm man under the defendants. The defendants paid a sum of Rs.9000/- per year as a remuneration to the plaintiff's father. The plaintiff's father was looking after the cultivation work in the suit property and after the cultivation, the cultivated crops were handed over to the defendants by the plaintiff's father. The defendants entered into a sale agreement for a sum of Rs.50,000/- with the third party in respect of the suit property. When the defendants approached the plaintiff and the third defendant and informed them about the sale agreement entered by them with the third party in respect of the suit property and asked them to receive the arrears amount and to vacate the suit property, the 3rd defendant accepted the same but the plaintiff demanded Rs.50,000/- for his dynamite business to vacate the suit property. However, the plaintiff has filed the suit. The suit property is in possession and enjoyment of the defendants. There is no lease agreement entered into between the defendants and the plaintiff or plaintiff's father in respect of the suit property. Since there was enmity between the defendants and the Village Administrative Officer, the Village Administrative Officer had given a certificate in favour of the plaintiff. Moreover, no registration of lease was made before the Tahsildar in between the parties . No document was produced by the plaintiff to prove that he was in possession of the suit property. There is no cause of action for filing the suit. Therefore, the suit has to be dismissed with costs.
5. No written statement was filed by the third defendant.
6. The trial court framed necessary issues on the pleadings and entered trial. After appraising the evidence adduced on either side, the trial Court dismissed the suit filed by the plaintiff without costs.
7. The aggrieved plaintiff has preferred an appeal before the first appellate Court in A.S.No.255 of 2003 . The first appellate Court, heard the arguments of both sides and had come to the conclusion of confirming the judgment and decree passed by the trial Court and thus dismissed the appeal. The aggrieved plaintiff has preferred the second appeal before this Court against the judgment and decree passed by the first appellate Court in A.S.No.255 of 2003 dated 19.11.2004.
8. On admission, this Court had formulated the following substantial questions of law for being considered in the appeal.
"1. Whether the Courts below are correct in dismissing the suit for injunction on the ground that the appellant had not registered himself as a cultivating tenant in respect of the suit property with the Record Officer under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act?
2. Is not the plaintiff in a suit for injunction entitled to the relief of injunction on proof of possession of the suit property, even if he has not established he is registered as a cultivating tenant of the said land?
3. Whether the Courts below are correct in dismissing the suit without considering the fact that the defendants had admitted the possession of the plaintiff in the suit property?"
9. Heard Mrs.AL.Ganthimathi, learned counsel for the appellant/plaintiff and Mr.K.Thilageswaran, learned counsel for the respondents 1 and 2/defendants 1 and 2. No appearance for the 3rd respondent/3rd defendant.
10. Learned counsel for the appellant/ plaintiff would submit in her argument that the oral and documentary evidence adduced before the trial Court for proving the case of the plaintiff was not considered by both the Courts below. She would further submit that Exs. A1 and A4 would clearly go to show that the plaintiff's father was in possession and enjoyment of the suit property as a cultivating tenant and the defendants 1 and 2 being the absentee landlords who were residing at Namakkal have admitted in the written statement that the plaintiff's father was in possession and enjoyment of the property till his life time and was settling the proceeds promptly till the year 2000. She would further submit that the said admission would go to show that the father of the plaintiff continued the said cultivating tenancy till his death and after his death the plaintiff and the 3rd defendant who are the legal representatives of their father were entitled to continue as cultivating tenants and the plaintiff was cultivating the said property belonging to the defendants 1 and 2 and was paying 20 bags of paddy per year to the defendants. She would also submit that the evidence of P.W.2, the Village Administrative Officer was not considered by both the Courts below to come to a conclusion that the plaintiff was in possession of the suit property as a cultivating tenant. She would further submit that the case of the defendants that the plaintiff's father was working as a farm man only for a sum of Rs.9000/- per year was not established by the defendants. She would further submit that the possession of the plaintiff's father till the year 2000 was admitted by the defendants 1 and 2 and the suit filed after six months by the plaintiff seeking for injunction against the defendants 1 and 2 ought to have been decreed since the possession of the property was established by the plaintiff. She would also submit that when the father of the plaintiff was established to be a cultivating tenant and thereafter, the plaintiff and the 3rd defendant became the cultivating tenant of the suit properties, the case of the plaintiff ought to have been decreed by the Court below. She would also submit that the non-registration of the plaintiff as a cultivating tenant is not a criteria to show the possession of the suit property. She would also submit that the courts below did not perceive the evidence properly but had come to a wrong conclusion which is amounting to perversity. She would also submit that the Courts below have committed error in dismissing the suit and in the said circumstances, this Court should interfere with the judgment and decree passed by the first appellate Court in confirming the judgment of the trial court. She would also submit that the defendants 1 and 2 were not directly maintaining the property and their evidence would also prove the same and in the said circumstances, the plaintiff's case that he was in possession and enjoyment of the suit as a cultivating tenant ought to have been upheld and the suit has to be decreed. She would also submit that in view of the erroneous decision reached by both the Courts below, the vested right through the death of the plaintiff's father was likely to be defeated and therefore, the judgment and decree passed by the first appellate Court may be interfered and set aside and the second appeal may be allowed.
11. Learned counsel for the respondents 1 and 2 would submit in his arguments that the plaintiff who is seeking for permanent injunction against the defendants 1 and 2 not to evict him except under due process of law has to establish his case and he cannot rely upon the weakness of the defendants' case. He would further submit that the plaintiff cannot rely upon the chance document in the year 1983 produced in Ex.A1, in order to show that he was continuously the cultivating the land till 2000, cannot be sustained. He would also submit that the plaintiff's father was only asked to look after the suit properties after the purchase by the defendants on a yearly payment of Rs.9000/- but the plaintiff's father had clandestinely entered his name in the revenue records and thereafter the name of the plaintiff's father was not found in the revenue records, would show that the said entry made in Ex.A1 was a chance entry and it would not establish the correct status of parties. He would also submit in his argument that in Ex.A1, the plaintiff's father was shown to cultivate the property in the year 1983 and thereafter till 2000 his name was not found in the revenue records as cultivating the property. That would show that the plaintiff's father was only working as a servant of the defendants 1 and 2, to look after the properties for the aforesaid consideration. He would also submit that if really the plaintiff's father or the plaintiff and 3rd defendant were cultivating the land they would have been issued with the receipt for the rent for the tenancy as stated by the plaintiff i.e., 20 bags of paddy but curiously nothing was produced by the plaintiff to show that he was continuing as cultivating tenant. He would also submit that the father of the plaintiff would have got the receipt for the payment of 20 bags of paddy as lease amount but the same was also not produced. He would further submit that no scrap of paper was produced in order to touch the concept of agricultural lease obtained by the plaintiff or being inherited by the plaintiff and the 3rd defendant from their father. He would also submit that when the plaintiff failed to prove his case that he was in possession and enjoyment of the suit property as a cultivating tenant, it cannot be said that the plaintiff's father and thereafter the plaintiff was continuing as a cultivating tenant to the suit property. He would also submit that the evidence of plaintiff would go to show that the plaintiff and the 3rd defendant are retailer of dynamite and the plaintiff's father was doing the said business and in such circumstances, how it could be possible for them to do the personal cultivation in the property. He would also submit that even though the defendants 1 and 2 were living in Namakkal, they have employed the plaintiff's father only to look after the cultivation by paying a sum of Rs.9,000/- per year and nothing more would be accrued to the plaintiff or the 3rd defendant from their father. He would also submit that the courts below have detailedly analysed the evidence and had come to the conclusion of disbelieving the case of the plaintiff regarding the tenancy and there is no infirmity in the judgments passed by the Courts below. He would therefore submit that the current findings reached by the Courts below without any grave mistakes need not be interfered with the judgment and decree passed by the first appellate court. Therefore, he would request the Court to dismiss the appeal and confirm the concurrent judgment of the Courts below.
12. I have given anxious thoughts to the arguments advanced on either side.
13. The suit was laid by the plaintiff for the relief of permanent injunction that the plaintiff and the 3rd defendant are the cultivating tenants of the suit property and their possession should not be disturbed by the defendants 1 and 2 other than due process of law and for costs. The claim of the plaintiff is that the plaintiff and the 3rd defendant who are the sons of Ganapathy Pillai, derived the right of cultivating tenancy from their father who was cultivating the suit property under the defendants 1 and 2, after the death of their father. In support of the case of the plaintiff, the plaintiff was examined as P.W.1 and one Village Administrative Officer was examined as P.W.2. Ex.A1 was produced which is relevant to the fasli years 1392 and 1393. According to the said document, the suit property was said to have been cultivated by Ganapathy Pillai, father of the plaintiff in fasli year 1393. The plaintiff deposed that his father continued to be the cultivating tenant till his death in the year 2000. After his death, the plaintiff and the 3rd defendant are stated to have continued the said cultivating tenancy with the defendants 1 and 2. No doubt, the defendants have stated in their written statement that the plaintiff's father was appointed as a farm-man only to look after the cultivation for a salary of Rs.9,000/- per year. It is also the evidence of the defendants that the plaintiff's father was looking after the property well and was handing over the proceeds promptly with the defendants 1 and 2 after he received his remuneration. Therefore, I could see that the defence taken by the defendants 1 and 2 was that the plaintiff's father was not a cultivating tenant but was only a farm man employed for the purpose of looking after the cultivation.
14. No doubt, it is true that there is a lot of difference between a cultivating tenant and a farm-man appointed by one person for remuneration. The qualification for a cultivating tenant has to be considered only in a proceeding seeking for registration before the officer concerned, to record the names of the cultivating tenants in the appropriate register. The satisfaction as to the requirement of the qualification for cultivating tenant can be gone into only in that proceedings. However, the rights of cultivating tenant can accrue to a person when he obtains the registration as cultivating tenant from the competent officer concerned. Admittedly, the plaintiff's father or the plaintiff and the 3rd defendant did not get such registration in the records with the officer concerned. Unless the plaintiff's father was registered as a cultivating tenant, he cannot be called as a cultivating tenant.
15. It is a settled law that a civil court cannot go into any declaration to confer a person as a cultivating tenant and it is only vested with the competent officer concerned. Now the point for consideration is whether the plaintiff and the 3rd defendant could be considered in possession of the suit property by inheriting the alleged right of their father after his demise. No doubt, Ex.A1 would go to show that the plaintiff's father was shown as cultivating the suit property in the year 1984 (1393 fasli), and thereafter, no entry has been made in the revenue records. However, PW2 has given a certificate to the plaintiff regarding the cultivation of the suit property. P.W.2 had stated in his evidence that he has given the certificate Ex.A4 to the plaintiff. But in his chief examination itself he would admit that he did not know whether the lease amount was paid either in the form of paddy or through money. On a careful perusal of P.W.2's evidence, it would show that he does not speak about the ingredients of the lease or the cultivation of the property in the land belonging to the defendants 1 and 2. Further more, nothing was stated by P.W.2, that he had referred and verified with the records available with him or with the revenue department and had granted the certificate in Ex.A4. The certificate issued by the Village Administrative Officer is normally not believable as per various pronouncement of this Court. The contents of the certificate can be proved by the revenue records which are public documents available for certified copies. In his cross-examination, he would admit that patta stands in the name of the defendants 1 and 2 and the entry in chitta and adangal could be identified only with the records and he did not refer or peruse those documents prior to the issuance of Ex.A4. Therefore, I could see that the evidence of P.W.2 is not worthy to rely upon, for finding the true facts. It would be apt and appropriate to refer to the decision of this Court reported in 1998(1) MLJ 639 ( Selvamani V. TheDistrict Revenue Officer cum Revisional Authority (Record of Tenancy rights under the Tamil Nadu act 10 of 1969) Thanjavur) wherein it has been held as follows:
"7. ....In the absence of any adangal extract, the certificate issued by the Village Administrative Officer cannot be accepted, since it can be procured at any time."
16. Further, except Ex.A1, the plaintiff did not produce any other document to show that the plaintiff's father continued to be in possession and enjoyment of the suit property as a cultivator or cultivating tenant. If really the plaintiff's father was cultivating the suit property, he would have entered his name in the revenue records in all the years till his death but it was not done so. Therefore, the Courts below have come to the conclusion that the plaintiff's father was in charge of cultivation of the suit property on payment of Rs.9,000/- per year. The case of the plaintiff that he and 3rd defendant were cultivating the suit properties after the demise of their father was not supported by the 3rd defendant by filing any written statement or by examining himself as one of the witnesses. However, it was shown to court that the 3rd defendant was a dealer in explosive substances and was doing his business The 3rd defendant was doing explosive business and the plaintiff and the 3rd defendant have got 17 acres of dry lands of their own. Even though the plaintiff denied that he is not doing explosive substance business, when it was suggested to him that he had mentioned his avocation as explosive business in the reply statement, it was denied by him. The mere possession of the suit properties may entail the plaintiff to get an order of injunction but not against the true owners namely the defendants 1 and 2, provided possession was established by the plaintiff.
17. As already discussed, the 3rd defendant has not supported the case of the plaintiff. The documents produced by the defendants in Ex.B2 Adangal extract shows the cultivation of the suit properties for the fasli 1404 to 1411 (corresponding to 1995 to 2002) and the plaintiff's father or plaintiffs name has not been found. It has been only in the name of the first defendant who is in possession of the suit property. Admittedly, the patta stands in the name of the defendants 1 and 2. Therefore, the case of the plaintiff that his father was in possession of the suit property as a cultivating tenant and thereafter, the plaintiff and the 3rd defendant are doing the cultivation, cannot be believed. The Adangal extract produced in Ex.B2 would go to show that the defendants are in possession of the suit property and the case of the defendants 1 and 2 that the plaintiff's father was employed to look after the cultivation as a farm man for a sum of Rs.9,000/- per year would be a probable thing to be relied upon. Therefore, the plaintiff had miserably failed to prove the possession of the plaintiff's father as a cultivator or his possession after his death. The plaintiff was found by the trial Court as well as the first appellate Court as not in possession of the suit properties. The evidence produced by both the parties would go to show that the plaintiff was not in possession of the suit land as pleaded by him and the Courts below are correct in dismissing the suit since the plaintiff was not in possession of the suit property. Moreover, the plaintiff did not also prove the registration of his status as a cultivating tenant with the record officer. Even on that ground, the courts below have dismissed the claim of the plaintiff. When the plaintiff himself did not establish that he was in possession of the suit property even otherwise as a cultivator or cultivating tenant, the decision reached by the courts below are perfectly alright and this Court does not find any infirmity in the findings reached by the courts below to interfere with the concurrent finding reached by the first appellate Court.
18. For the foregoing discussion, the questions of law framed by this Court are decided negative against the appellant and in favour of respondents 1 and 2. Therefore, it has become necessary for this Court to dismiss the second appeal by confirming the judgment and decree passed by the Courts below.
19. In fine, the second appeal is dismissed confirming the judgment and decree passed by the first appellate Court. No costs.
vsi To
1. The Additional District Judge, (Fast track Court No.3), Namakkal.
2. The Additional District Munsif, Namakkal