Madras High Court
Sampornam vs R.Senapathi ... 1St on 19 June, 2014
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.06.2014
CORAM:
THE HONOURABLE Mrs. JUSTICE S.VIMALA
Second Appeal No.965 of 2004
and C.M.P.No.970 of 2013
1.Sampornam
2.Palanisamy
3.Chellakumarasamy ... Appellants/Defs. 2 to 4
-Vs-
1.R.Senapathi ... 1st respondent / Plaintiff
2.Saradambal ... 2nd respondent /1st Def.
Prayer: Second appeal filed under Section 100 of Civil Procedure Code against the judgement and decree, dated 23.02.2004 in A.S.No.25 of 2003 before the I Additional Subordinate Judge, Erode, reversing the judgment and decree, dated 21.02.2003 in O.S.No. 75 of 1999 on the file of the District Munsif cum Judicial Magistrate, Kodumudi.
For Appellants : Mr. V.Raghavachari
For Respondents : Mr. N.Manoharan for R-1
M/s.S.Meenakumari for R-2
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J U D G M E N T
Defendants 2 to 4 are the appellants. The first respondent is the plaintiff and the second respondent is the first defendant.
2. The plaintiff filed the suit in O.S.No.75 of 1999 seeking the relief of permanent injunction till the plaintiff is evicted by due process of law. The said suit was dismissed. Aggrieved over the dismissal, the plaintiff filed the first appeal in A.S.No.25 of 2003. The First Appeal was allowed and thereby the dismissal in O.S.No.75 of 1999 came to be set aside. Injunction was granted protecting the interest of the plaintiff till he is evicted by due process of law. Aggrieved over the judgment and decree passed in the first appeal, the defendants 2 to 4 have preferred this second appeal.
Brief Facts:
3.The suit property originally belonged to Akilanda Deekshidar, the husband of the first defendant. As per the Will executed and which came into force later, the property belonged to the first defendant. The plaintiff, as a lessee, executed a lease deed on 10.06.1977 for a period of 11 months. This lease deed was attested by a notary public, who was a lawyer. The plaintiff is personally cultivating the suit property by exerting his own physical labour. Even after the expiry of the lease period mentioned in the lease deed, he continued to be in possession as a tenant holding over. He is entitled to protection under the Cultivating Tenants Protection Act.
3.1.Claiming that defendants 2 to 4 did not have any right or interest over the suit property and claiming that they have colluded together with the first defendant in evicting the plaintiff from the suit property, the plaintiff sought for an order of injunction by filing the suit.
4.The first defendant claimed that the she is an unnecessary party and she never interfered with the possession and enjoyment of the suit property. A part of the suit property had been leased out in favour of the father-in-law of the second defendant, one Karuppanna Gounder. After Karuppanna Gounder, her daughter-in-law, second defendant, was in possession and enjoyment of the property till 1995. Thereafter, possession was handed over to the first defendant.
5.The rest of the suit property was in possession and enjoyment of the father of 3rd and 4th defendants and thereafter, with the 3rd and 4th defendants. They handed over possession of the property to the first defendant during 1996. Only after defendants 2 to 4 handing over possession to the first defendant, she executed lease deed in favour of the plaintiff. It is the plaintiff, who is paying the rent to the first defendant. The defendants 2 to 4 did not pay rent for the period 1995-96 to 1998-99 (4 years). Receipts had been issued only upto the year 1994-95. Thus, the defendants 2 to 4 have no right over the suit property.
6.The suit claim was resisted by defendants 2 to 4 on the following contentions:
1.The suit claim on the basis of lease deed dated 10.06.1997 and the consequent claim made are incorrect. The lease deed, rent receipts are fabricated for the purpose of this case.
2.The claim of attempted dispossession is also not correct.
3.Out of the suit property, an extent of 1 acre had been in possession of Karuppanna Gounder (father-in-law of the second defendant) which was leased out orally about 35 years back. For a year, he has been paying 5 = 'Pothimanjal' to the owner of the property.
4.Similarly, rest of the suit property were leased out in favour of the father of defendants 3 and 4, namely, Ramasamy Gounder who agreed to give 550 kilos of 'manjal' as lease. They had been paying the lease without any arrears.
5.The father-in-law of the second defendant filed a suit in O.S.No.492 of 1977 as against first defendant and one Sengappa Gounder when they attempted to interfere with the possession. A decree has been passed on 08.08.1979. The decree was not appealed and it has become final.
6.The second defendant has no other leasehold lands. After the death of the original lease holders, their respective legal representatives are in possession and enjoyment of the property.
7.The first defendant has no right to execute any lease deed in favour of the plaintiff. This attempt has been made only to harass defendants 2 to 4. Therefore, the suit claim must be dismissed.
7. On these pleadings, the trial Court framed the following issues:
1.Whether the alleged surrender by 2nd defendant during 1995 and by defendants 3 and 4 during 1996 in favour of the first defendant is true ?
2.Whether the plaintiff is in possession and enjoyment of the suit property ?
3.Whether the cause of action alleged is true ?
4.Whether the plaintiff is entitled to an order of permanent injunction ?
8.The trial Court gave a finding that when the first defendant is the most competent person to speak about the rights of defendants 2 to 4 over the suit property, it is not open to the plaintiff to contend that defendants 2 to 4 have no rights over the property. The trial Court did not accept the contention of the plaintiff that the suit property and the property over which defendants 2 to 4 were claiming leasehold rights were different. It was held that the burden of proof to show that defendants 2 to 4 have surrendered possession of the suit property was upon the first defendant and the first defendant did not even give details of surrender and no evidence has been let in to prove surrender and hence, the surrender is not proved.
8.1.So far as the document Ex.A16, which is the record of tenancy ordered by the competent authority, was concerned, it was held that as defendants 2 to 4 were not parties to proceedings and therefore, Ex.A-16 will not bind defendants 2 to 4. On these findings, the suit was dismissed.
9.The First Appellate Court, which reversed the findings of the trial Court, gave the following reasoning:
1.Ex.A2 lease deed said to have been executed by first defendant in favour of plaintiff on 10.06.1997, ought to have been accepted by the trial Court as true and valid and that the contradictions in the evidence of D.W.1 (first defendant) who was giving evidence after 5 to 6 years, ought to have been ignored; even though the trial Court has observed that no attesting witness has been examined, D.W.4, a notary public/advocate has been examined to speak about attestation and therefore, Ex.A2 lease deed is true and valid.
2.So far as Ex.A16 is concerned, it is the valid document to show that the plaintiff is in possession and enjoyment of the property and the finding of the trial Court that it will not bind defendants 2 to 4 as they were not parties to proceedings is not correct.
On these findings, the judgment of the trial Court was reversed. These findings are under challenge in this second appeal.
10.The second appeal has been admitted on the following substantial questions of law:
1.Whether the lower appellate court is justified in reversing the decree in the absence of proof of possession with the plaintiff ?
2.Whether the lower appellate Court ought not to have held that a suit itself is not maintainable at the instance of the plaintiff, particularly when the issue is based upon a surrender of lease in favour of the 1st defendant ?
3.When the 1st defendant had failed to establish the factum of surrender, whether the lower appellate court ought not to have held that the possession of the property continued with the appellants ?
4.Whether the lower appellate Court is justified in ignoring the decree for injunction and document under Ex.B.8 which reinforces the possession of the appellants in the suit property ?
5.Whether the lower appellate Court is not in error in decreeing the suit which is apparently a collusive one engineered at the instance of the 1st defendant ?
6.Whether the document under Ex.A.2 is admissible in evidence when it is unstamped and unregistered ?
11. The learned counsel for the appellants / defendants 2 to 4 contended that mere entry in the record of Tenancy Rights Register does not by itself confer any right on a person as a cultivating tenant, unless he satisfies other requirements and that the plaintiff in this case did not satisfy the other requirements except getting a record of tenancy in his favour and therefore, based upon Ex.A16 alone there cannot be a decree for injunction. In support of the said contention, he relies upon the decision reported in 2008 1 L.W. 323 (J.M.Jeyachandran Samuel vs. G.S.S.Masilamani) whereunder it has been held as under;
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. 11.1.Incidentally, it was further held in the said decision that from the language of Section 3(2), it cannot be stated that determination of the controversy is within the exclusive jurisdiction of the authorities functioning under the Act, though the determination of that controversy is basis and fundamental to the exercise of the jurisdiction by the Record Officer and other authorities under the Act. This decision also quoted the decision reported in 2005 1 MLJ 91 (P.Shanmugasundaram vs. District Revenue Officer, Tirunelveli, Nellai Kattabomman Dt. And others), wherein, it has been held as follows:
"7. Going by the Division Bench judgment, it is clear that while a party may not be able to seek for a declaration of the status of a party as a cultivating tenant in the Civil Court, a suit for declaration cannot be said to be not maintainable in the Civil Court in which, incidentally there can be a consideration and finding with reference to the nature and character of possession and status of the party. In fact, it is also made clear in the above decision that Civil Court decree either filed during the pendency of the applications before the Revenue Authorities or subsequent to that should be given due weight by the authorities concerned who deal with the applications under Act XXV of 1955."
11.2.Taking into account the ratio laid down in the decision of a Full Bench reported in (1980) 93 L.W. 169 (FB) (Periathambi Gounder v. The District Revenue Officer, Coimbatore), this Court, in the decision reported in 1996 1 CTC 90 (Arumugam and another vs. Sree Dharmapuram Mutt at Dharmapuram), has held that the authorities under the Record of Tenancy Act cannot be said to have exclusive jurisdiction to decide the issue as to whether the lands have been let under a tenancy agreement and the civil Court is not totally precluded from dealing with a claim of the landlord in any and every or all circumstances.
12.The learned counsel for the first respondent/plaintiff submitted that plaintiff has proved possession by the production of, (a) kist receipts (Exs.A3 to A5, A17 and A35); (b)receipts issued for having received the rent (Exs.A6, A7, A31 and A32); (c)certificates given by Secretary of the Agricultural Cooperative Bank (Exs.A8 and A9); (d)supply of turmeric to the Society (Exs.A-10 to A15); and e) adangal extracts (Exs.A20 to A30).
12.1.The trial Court has dealt with the relevancy, admissibility and value of those documents in paragraph 14 of the judgment. The trial Court has rightly observed that in Exs.A-33 and A-34, the name of the plaintiff has been registered only on account of the record of tenancy registered under Ex.A16 and therefore, it will not help the case of the plaintiff. It is also observed that in other adangal extracts it has been shown as own cultivation. The two kist receipts filed relates to the year 1995 and 1996. The case of the plaintiff himself is that he came into possession only in the year 1997. Then it is not known how he could have paid 'kanthayam' under Ex.A3 for the year 1995 and 1996 also. These documents clearly go to show that the plaintiff is colluding with the first defendant. The trial Court has also extensively dealt with rest of the documents and this Court agree with the findings of the trial Court.
12.2. The learned counsel for the first respondent/plaintiff also relies upon Ex.A16, which is the order issued by the Tahsildar of Erode, dated 20.06.2000.
13.It is the case of the first defendant / second respondent that the original lessees surrendered possession in favour of her and thereafter, she executed lease deed in favour of the plaintiff. If that be the case, there is no difficulty to implead the original lessees also in the petition filed by the plaintiff to record himself as a cultivating tenant. First of all, the question is whether the first defendant has proved the surrender of lease. According to first defendant, defendants 2 to 4 surrendered the properties during the year 1995 (by D2) - 1996 (by D3 and D4) and only thereafter, she executed a lease deed in favour of the plaintiff on 10.06.1997.
13.1. It is also the admitted case of the first defendant that originally the lease was in favour of Karuppanna Gounder and after his death, her daughter-in-law, the second defendant took possession of the property and she has been cultivating the lands. Equally, after the death of Ramasamy Gounder, his sons, D-3 and D-4 had been cultivating the lands. The trial Court was of the view that when the owner of the property is the competent person to speak about the earlier lease, it is not open to the plaintiff to say that defendants 2 to 4 had no relationship with the property concerned.
13.2. The trial Court in paragraph 13 of the judgment considered the lease deed under Ex.A2 and had given a finding that the document has created lot of doubts and in the absence of any convincing explanation to clear the doubts, the plaintiff must be deemed to have failed in proving the lease deed. The trial Court also gave a finding that Ex.A16 order by the Tahsildar recording the plaintiff as the cultivating tenant will not be binding upon defendants 2 to 4.
14.The learned counsel for the first respondent/plaintiff strenuously contended that the findings of the First Appellate Court on the validity of Ex.A2 lease deed and the binding nature of Ex.A16, the record of Tenancy Register, ought to be accepted by this Court and plaintiff must be given a decree for permanent injunction.
15. It is the case of appellants/defendants 2 to 4 that they never quitted possession of the suit property and that Ex.A2 lease deed is a document created fraudulently for the purpose of the case at the instance of the first defendant. In the light of the contentions on both sides, the authenticity of Ex.A2 has to be scrutinised.
16. The learned counsel for the 1strespondent/plaintiff relied upon the findings of the First Appellate Court wherein the First Appellate Court has observed that just because there are slight contradictions in the evidence of D.W.1, that contradictions alone would not lead to the conclusion that the document is a fabricated one. This observation is correct and perfect provided this is the only document relied upon and the only circumstance to be considered by the Court. But, so far as this case is concerned, there are several other circumstances and context which had to be holistically considered for the purpose of deciding whether Ex.A2 could have been a true document or a fabricated document.
16.1. In support of the contention that minor contradictions have to be ignored, the learned counsel for the plaintiff also relies upon a decision reported in 2008 4 SCC 530 (Thiruvengadam Pillai vs. Navaneethammal) where-under the Hon'ble Supreme Court, in paras 12, 13 and 14 of the judgment, was of the opinion that just because stamp papers of different dates have been used, it may be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement, but that cannot be a clinching evidence. It was pointed out that the possibility of lay man unfamiliar with legal provisions relating to stamps may bona fide think that he could use the old unused stamp papers lying with him for the preparation of the document. The relevant observation is in para 14:
14. If a person wants to create or a back-dated agreement, the first hurdle he faces is the non-availability of stamp paper of such old date. Therefore tampering of the date of issue and seal affixed by the stamp vendor, as also the entries made by the stamp vendor, are quite common in a forged document. When the agreement is dated 5.1.1980, and the stamp papers used are purchased in the years 1973 and 1978, one of the possible inferences is that the plaintiff not being able to secure an anti-dated stamp paper for creating the agreement (bearing a date prior to the date of sale in favour of second defendant), made use of some old stamp papers that were available with him, to fabricate the document. The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a lay man unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers. 16.2.In the above case, the stamp rules pertaining to various States have been considered and it has been pointed out that Stamp Rules 1925, applicable to Tamil Nadu, do not contain any provision that the stamp papers of required value should be purchased together from the same vendor with a consecutive serial numbers; the rules merely provide that when two or more sheets of paper on which stamps are engraved or embossed are used to make up the amount of duty chargeable in respect of any instrument, a portion of such instrument shall be written on each sheet so used. The relevant paragraph discussing the Stamp Rules is extracted for convenience reference :
12. The Stamp Rules in many States provide that when a person wants to purchase stamp papers of a specified value and a single stamp paper of such value is not available, the stamp vendor can supply appropriate number of stamp papers required to make up the specified value; and that when more than one stamp paper is issued in regard to a single transaction, the stamp vendor is required to give consecutive numbers. In some States, the rules further require an endorsement by the stamp vendor on the stamp paper certifying that a single sheet of required value was not available and therefore more than one sheet (specifying the number of sheets) have been issued to make up the requisite stamp value. But the Indian Stamp Rules, 1925 applicable to Tamil Nadu, do not contain any provision that the stamp papers of required value should be purchased together from the same vendor with consecutive serial numbers. The Rules merely provide that where two or more sheets of paper on which stamps are engraved or embossed are used to make up the amount of duty chargeable in respect of any instrument, a portion of such instrument shall be written on each sheet so used. No other Rule was brought to our notice which required use of consecutively numbered stamp papers in the State of Tamil Nadu. 16.3.The admissibility of such documents in evidence which are irregularly stamped / insufficiently stamped has been discussed in paragraph 13, which is extracted below:
13.The Stamp Act is a fiscal enactment intended to secure revenue for the State. In the absence of any Rule requiring consecutively numbered stamp papers purchased on the same day, being used for an instrument which is not intended to be registered, a document cannot be termed as invalid merely because it is written on two stamp papers purchased by the same person on different dates. Even assuming that use of such stamp papers is an irregularity, the court can only deem the document to be not properly stamped, but cannot, only on that ground, hold the document to be invalid. Even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under section 35 or 37 of the Indian Stamp Act, 1899. If an agreement executed on a plain paper could be admitted in evidence by paying duty and penalty, there is no reason why an agreement executed on two stamp papers, even assuming that they were defective, cannot be accepted on payment of duty and penalty. But admissibility of a document into evidence and proof of genuineness of such document are different issues.
17.The legal proposition enunciated in the above decision cannot be disputed. The only distinction to be borne in mind is that, this Court is dealing with a question not only on the validity and admissibility of the document, but mainly on the authenticity of the document. As rightly pointed out in the above decision, the very fact that old stamp papers of different dates have been used is one of the circumstance that cast doubt on the authenticity of the document. This circumstance cannot be the singular circumstance to come to a definite conclusion and it must be considered along with the following circumstances:
1.When it is alleged that even prior to defendants 2 to 4 coming into possession of the suit property, their respective ancestors had been admittedly in possession as tenants. Under such circumstances, what made them to surrender possession, even if it is assuming to be true, has not been explained.
2.Admittedly, a suit has been filed for permanent injunction in O.S.No.492 of 1977 by Karuppanna Gounder, the predecessor in possession to the second defendant, Sampornam, against the first defendant, Saradambal, (who is the first defendant here also), who is the owner of the property, contending that he is the tenant of the suit property. The suit has been decreed, even as early as 08.08.1979. The decree has become final as no further appeal has been filed. Even in that case, the defence was that the plaintiff therein surrendered possession of 3 cents to the second defendant therein, which was disbelieved by the Court. When there had been previous enmity and dispute between the owner of the property and the previous lessees, whether it could be believed that the plaintiff would have surrendered property without any consideration / evidence.
3.The details of surrender is conspicuously absent in the pleadings itself.
17.1. The Allahabad High Court has indicated the essential ingredients to be established in order to sustain the plea of express or implied surrender, in the decision in the case of Abdul Sitiar Vs. Vl Additional District Judge and Ors. reported in MANU/UP/0739/1993 : 1994 1 AWC 249 All, and the observation in paragraph 12 is very relevant:-
12. The surrender of tenancy right may be express or implied. An express surrender effectuates the clear and unambiguous intention of the tenant to surrender and yield up his tenancy rights and in such cases, it is a matter of intention of the parties and not a matter of implication of the law but in an implied surrender an intention to surrender is not expressed. It may be Inferred by law. It may be an act of the law and takes place independently of and in some cases even inspite of the intention of the parties." The law infers such surrender from the omissions, acts and conduct of the parties. The essence of implied surrender is more than often a question of fact depending on the intention of the parties. Their intention is to be inferred from their conduct. Implied surrender may ultimately to inferred from the conduct of the parties and the circumstances of the case. As observed by the Apex Court in its decision in the case of Shah Mathuradas Maganlal & Co. v. Nagappa Shankarappa Malage, MANU/SC/0367/1976 : 1976 (3) SCC 660, the relinquishment of possession operates as implied surrender. It was clarified by the Apex Court therein that implied surrender by operation of law occurs by the creation of a new relationship or by relinquishment of possession.
17.2. It is not the case of the owner of the property that a new relationship has been established between herself and the defendants 2 to 4. The omission, act or conduct should indicate that there was intention on the part of the tenants to relinquish the possession. Whether the relinquishment of possession has been established by the owner of the property is the issue to be considered.
18.The learned counsel for the respondent / plaintiff relied upon the decision reported in 2011 2 MWN (Civil) 754 (E.K.M.G.Bakir Ali vs. G.Sundarraj) and contended that surrender of possession can either be implied or by operation of law and therefore, the surrender need not always be proved by producing the deed of surrender and the first defendant has proved surrender by surrounding circumstances. In the said decision, this Court has relied upon the decision reported in AIR 2001 Ker. 177 (A.Sulaikha Beevi vs. K.C.Mathew and others) where-under it has been held as follows:
Mulla on the Transfer of Property Act, Seventh Edition at Page 741, it is stated thus: "A surrender is an yielding up of the term of the lessee's interest to him who has the immediate reversion or the lessor's interest. It takes effect therefore like a contract by mutual consent, on the lessor's acceptance of the act of the lessee". The surrender is either express or implied. The Author further states as follows: "Express surrenders are in England required by the Statute of Frauds to be in writing. No such formality is necessary in India. A deed of surrender need not be registered, if there are facts dehors. No particular form of words is essential to make a good surrender". At page 742, the Author describes regarding the implied surrender which reads thus: "Implied surrender or surrender by operation of law occurs: (1) by the creation of a new relationship, or (2) by relinquishment of possession.... If the lessee accepts a new lease, that in itself is a surrender of the old lease, for the new lease could not be granted unless the old was surrendered".
19.Section 111 of the Transfer of Property Act, deals with termination of lease of immovable property and Section 111 (f) speaks about termination of lease by implied surrender. In the decision reported in AIR 1966 Raj. 89 (Noratmal vs. Mohanlal), wherein it was pointed out that the implied surrender is the expression used to describe all those cases where the law implies a surrender from unequivocal conduct of both parties, which is inconsistent with the continuance of existing tenancy. It would be relevant to quote the following observation:
5.The first point of law to be examined in this appeal is whether service of such a notice by Debilal on Mohanlal operates as implied surrender. The term "surrender by operation of law" or "implied surrender" is the expression used to describe all those cases where the law implies a surrender from unequivocal conduct of both parties which is inconsistent with the continuance of the existing tenancy. .... (Such surrender is the act of the law, and takes place independently of and even in spite of the intention of the parties". Woodfall on Landlord and Tenant, 25th Edition, pages 966-67: para 2074). Such a surrender is valid under S.111 (f) of the Transfer of property Act. Such a surrender may come into being in a number of ways. There may be surrender by acceptance of a new lease, surrender by re-letting to another person by the landlord. Even acceptance by the landlord of the sub-lessee as a tenant would amount to surrender. ............................."
19.1. It is also relevant to quote the observations made in the decision reported in AIR 1976 SC 1565(1) [Shah Mathuradas Maganlal and Co., vs. Nagappa Shankarappa Malaga and others] "19. .......................... Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact. In the present case if the mortgagor was not able to redeem the appellant mortgagee was to enjoy the property in accordance with the terms of the mortgage and also to sell the property for recovery of debts. This feature shows that the appellant surrendered the tenancy from 7 November 1953.
19.2.The conduct of defendants 2 to 4 is not inconsistent with the continuance of existing tenancy. So far as the evidence and circumstances regarding surrender is concerned, one can safely come to the conclusion that the first defendant failed to prove the factum of surrender, because of the stated circumstances.
20. The purpose of recording the factum of status of the parties as cultivating tenants is for the purpose of protecting the rights of the tenants. But it is not for the purpose of defeating the rights of somebody else. In the absence of proof regarding surrender of possession by defendants 2 to 4 in favour of first defendant, the logical inference would be that in order to deprive the defendants 2 to 4 of their valuable rights, the plaintiff and the first defendant have colluded together and have obtained an order from the Tahsildar under Ex.A16. Therefore, Ex.A16 which does not bind defendants 2 to 4 cannot be said to be a document conferring status upon the plaintiff as a cultivating tenant. The purpose of recording, i.e., the protection of rights of the cultivating tenant has been mis-utilised, misused and abused and it has been used for the purpose of destructing the rights of defendants 2 to 4. Therefore, Ex.A-16, which is the record of tenancy and the consequent documents, which have been made to stand on Ex.A16, cannot be given any importance.
21. A petition has been filed under Order 47 Rule 21 CPC by the 1st respondent / plaintiff seeking permission of this Court to adduce additional evidence. According to the affidavit filed, these documents are kist receipts, adangal extracts and receipts for payment of rent to the first defendant. The claim of the plaintiff is that he is in possession and enjoyment of the property right from the year 1997.
21.1. The case of the contesting defendants 2 to 4 is that the suit itself is a collusive suit engineered at the instance of the first defendant / owner of the property. The first defendant / owner is supporting the case of the plaintiff.
22.2. In support of the plea, the learned counsel for the 1st respondent / plaintiff has relied upon the decision reported in AIR 1963 SC 1526 (1) (K.Venkataramiah vs. A Seetharama Reddy and Others), where-under it has been observed as follows:
Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "'any other substantial cause." There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "'to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R-27(1) (b) of the Code. 22.3.The documents that are sought to be filed came into existence pending lis. Similar type of documents for the yester years have been already filed before this Court. Therefore, filing of these documents is not going to help the case of the plaintiff in deciding the lis. Hence, the petition to receive additional documents is rejected.
24. In the result, the second appeal is allowed. The judgement and decree, dated 23.02.2004 in A.S.No.25 of 2003 are set aside and the judgment and decree, dated 21.02.2003 passed in O.S.No. 75 of 1999, dismissing the suit, stand confirmed. No costs. C.M.P.No.970 of 2013 is rejected.
19.06.2014 Index : Yes/No Internet : Yes/No sra / srk To
1.The I Additional Subordinate Judge, Erode.
2.The District Munsif cum Judicial Magistrate, Kodumudi.
3.The Section Officer, V.R.Section, High Court, Madras.
S.VIMALA, J., sra Pre-delivery judgment in S.A.No.965 of 2004 19.06.2014