Madras High Court
Ranganatha Pillai vs Anandan And Anr. on 27 November, 2000
Equivalent citations: (2001)1MLJ535
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. As per the Order of the Hon'ble Chief Justice, these second appeal and writ petition were heard together and a common judgment is being delivered, since the issues in both these matters are one and the same.
2. Ranganatha Pillai, the appellant herein filed the suit in O.S.No. 228 of 1987 on the file of the District Munsif, Ranipet, for declaration of title and permanent injunction restraining the defendants/respondents from interferring with the appellant's peaceful possession of the suit properties. The suit was resisted by the defendants/respondents on the ground that the father of the defendants was recorded as a tenant and his name was registered as tenant in the Tenancy Rights Register and his name was also entered in the Gazette Notification and after death of the father, as legal heirs, the defendants have been cultivating the lands and as such, they are entitled to all the benefits and protection under the Cultivating Tenants Act. The trial court on 15.10.1990 dismissed the suit finding that the defendants are in possession and cultivating the lands as tenants of the properties. The plaintiff/appellant filed an appeal before the District Court, Vellore in A.S.No. 66 of 1991. But, the appellate court dismissed the appeal confirming the judgment and decree passed by the trial court. It is against these concurrent judgments, the present second appeal has been filed before this Court by the appellant/plaintiff.
3. The case of the plaintiff is as follows:
The suit properties are 1.14 acre in S.No. 215, 8 cents in S.No. 213/3 and 27 cents in S.No. 214/1 situate in Allalacheri village in Arcot Taluk. Originally, these properties belonged to one Kamalammal. For the past five years, the plaintiff has been cultivating the lands with the permission of Kamalammal and has been paying the Varam periodically. The defendants tried to purchase these properties. However, the plaintiff succeeded in getting the sale deed executed by Kamalammal in favour of the plaintiff on 29.1.1987. From then onwards, there has been a disturbance to his enjoyment and possession of the properties by the defendants. Hence, on 8.5.1987 he gave a complaint to the police. Despite that, the disturbance continued. Hence, the suit for declaration of title and for permanent injunction.
4. The case of the defendants is as follows:
The owner of the properties is Kamalammal. The father of the defendants was the tenant for a long number of years and he had been cultivating and enjoying the properties and he had been making periodical Varams to the said Kamalammal. His name also was recorded as a cultivating tenant in the Arcot Taluk Office. The plaintiff had never been in possession as a tenant. After the death of their father, the defendants have been in enjoyment and possession. As such, the plaintiff was never given possession by the said Kamalammal, even though there is a sale deed executed by Kamalammal in favour of the plaintiff. Since the defendants were recorded as cultivating tenants, they cannot be evicted by filing the suit before civil court which has no jurisdiction.
5. In the light of the above pleadings, relevant issues were framed by the trial court.
6. On the side of the plaintiff, including the plaintiff three witnesses were examined and Exs.A-1 to A-5 were marked. On the other side, second defendant was examined as D.W.1 and Exs.B-1 to B-19 were marked. As court documents Exs.C-1, the Advocate Commissioner's report and Ex.C-2, the plan were marked.
7. The trial court on analysing the materials held that the plaintiff would not be entitled to the relief of permanent injunction, as there is no material to show that the plaintiff was ever in possession of the suit properties and in the light of the materials produced by the defendants that there is a relationship of landlady and tenants between the said Kamalammal and the defendants, more so, when the dispute over the same was pending before the revenue forum. It further held that the suit properties were in continuous possession and enjoyment by the defendants' father from the beginning and after his death, by the defendants.
8. Feeling aggrieved over the said judgment, the plaintiff/appellant filed an appeal before the first appellate court.
9. During the pendency of the appeal, it was pointed out by the plaintiff that the order passed by the Arcot Tahsildar dated 25.5.1987 holding that the defendants are the cultivating tenants was set aside by the Special Deputy Collector, Cuddalore by the order dated 21.7.1989 and the said order was challenged in the revision before the District Revenue Officer, North Arcot, who, in turn, restored the order of the Tahsildar dated 25.5.1987 and against the said order, a writ petition in W.P.No. 593 of 1991 has been filed before this Court and interim order was passed staying the operation of the said order. Under those circumstances, the said order passed by this Court dated 11.1.1991 was permitted to be marked as Ex.A-6 on the side of the plaintiff/appellant. The defendants/respondents filed the order of the District Revenue Officer dated 3.10.1990 before the lower appellate court and the same was marked as Ex.B-20.
10. The lower appellate court thereafter heard the counsel for the parties and considered the materials placed both before the trial court as well as before the lower appellate court and concluded that the plaintiff would not be entitled to the relief sought for in the suit, as it has been clearly established that the defendants have been in possession and enjoyment of the suit properties from the beginning through oral and documentary evidence, thereby dismissed the appeal.
11. Challenging the said judgment in this second appeal, the following three substantial questions of law were raised in the memorandum of grounds:
(1) Whether the sale in Ex.A-1 does not confer any title on the plaintiff- purchaser so as to enable him to claim the relief of declaration of his title?
(2) Whether the onus of proving their possession of the suit property as cultivating tenants is not on the defendants?
(3) Whether the documentary evidence in Ex.A-2 and Commissioner's findings in Ex.C-1 and defendant's admission do not prove plaintiff's possession?
12. However, while admitting the second appeal, this Court by the order dated 6.10.1993 thought it fit to formulate only one substantial question of law which is the following:
Whether, in view of Ex.A-1, dated 29.1.1987, the courts below were right in declining to grant the relief of declaration of title in favour of the appellant?
13. Mr. L.N. Praghasham, the learned Counsel for the appellant would argue at length, in elaboration of the substantial question of law not only formulated by this Court, but also the other questions of law which are mentioned in the memorandum of grounds. The gist of the submissions made by the counsel for the appellant is as follows:
Both the courts below have not given any finding with reference to the relief of declaration of title for the suit properties, even though the title has not been challenged by the defendants. Ex.A-2, the Adangal extract would show that the plaintiff and his vendors are the cultivators of the suit properties. Even though the Advocate Commissioner was appointed to inspect the suit lands and file the report, the lower courts have not given any value to the Commissioner's report and plan marked as Exs.C-1 and C-2 and as a matter of fact, the trial court has not discussed at all about the Commissioner's report, even though the Commissioner's report would support the plea of the plaintiff. The lower appellate court has also equally committed an error in rejecting the Commissioner's report without giving any valid reasons. Therefore, the appeal has to be allowed.
14. Per contra, Mr. Seshan, the learned Counsel appearing for the respondents would contend that both the courts below have referred to all the relevant materials and come to the factual conclusion on proper analysis that the plaintiff did not prove his possession and on the other hand, there was sufficient material to hold that the defendants are in possession and enjoyment of the suit properties as cultivating tenants.
15. I have heard the counsel for the parties and gone through the records.
16. At the outset, it shall be mentioned that both the courts below have committed a grave illegality in not considering the relief relating to the declaration of title. It is not disputed by the parties that the suit properties belonged to Kamalammal. It is not equally in dispute that the plaintiff has purchased the suit properties through Ex.A-1 on 29.1.1987 from Kamalammal, the original owner. Either in the written statement or in the deposition given by D.W.1 and D.W.2, it is not mentioned that the plaintiff would not be entitled for declaration of title. On the other hand, the consistent stand taken by the defendants is that their father was originally a cultivating tenant under Kamalammal and subsequent to his death, they became the cultivating tenants and their names also were recorded as tenants under the Cultivating Tenants Act. Under those circumstances, both the courts below ought to have decreed in respect of the prayer for declaration of title. Accordingly, I am constrained to hold that the plaintiff would be entitled to decree for declaration of title in respect of the suit properties.
17. The main dispute that may arises for consideration in the present second appeal is only with regard to the relief of permanent injunction.
18. According to the plaintiff, he was in possession and enjoyment of the suit properties for five years as a cultivating tenant under Kamalammal and he had been giving the Varam periodically to Kamalammal prior to the sale deed. Admittedly, there is no material to establish the same.
19. On the other hand, Exs.B-1 to B-19 would clearly show that the defendants' father was the cultivating tenant under Kamalammal and after his death, they have become the tenants under Kamalammal. This is clearly spelt out through the letters Exs.B-1 to B-4 written by the said Kamalammal to the defendants. As per Exs.B-5 to B-11, it is clear that upto 1986 Kamalammal had been receiving the Varam amount through money order from the defendants.
20. The case of the plaintiff is that he purchased the properties through Ex.A-1 on 29.1.1987 and prior to the said date for five years he had been in possession as a cultivating tenant. As noted above, no document was produced to show that he was cultivating the lands as a tenant under Kamalammal prior to the sale deed. Similarly, there is no material to show that Kamalammal took possession of the properties from the defendants and handed over the same to the plaintiff either before the sale deed or after the sale deed.
21. As pointed out by the lower appellate court, Kamalammal who is the most important material witness to establish the case of the plaintiff was not examined on the side of the plaintiff. On the other hand, the second defendant in the year 1986 filed an application before the Arcot Tahsildar requesting to record his name and his brother's name as cultivating tenants under Kamalammal in respect of the suit properties. When the said petition enquiry was pending, the said Kamalammal executed a sale deed in favour of the plaintiff on 29.1.1987. From this, it is clear that the said Kamalammal instead of contesting the matter before the Tahsildar in the petition enquiry, had hastened to execute the sale deed in favour of the plaintiff on 29.1.1987.
22. Without showing these factors, the plaintiff filed the suit in O.S.No. 228 of 1987 against the defendants as if he was the Varamdar initially and thereafter, he became the owner by virtue of the sale deed executed on 29.1.1987 by Kamalammal.
23. As a matter of fact, in the meantime, the second defendant obtained the order Ex.B-13, dated 25.5.1987 from the Tahsildar recording the name of the defendants as cultivating tenants. Though, the said order was set aside by the Special Deputy Collector under Ex.A-5, the District Revenue Officer in the revision set aside the same and restored the order of the Tahsildar holding that the defendants are the cultivating tenants.
24. Under those circumstances, the factual finding given by both the courts below with reference to the lack of evidence on the part of the plaintiff to prove his possession cannot be said to be wrong in the absence of any contrary evidence.
25. It was vehemently argued by the counsel for the appellant/plaintiff that even though the Advocate Commissioner appointed by the trial court filed a report and plan after inspection stating that the suit properties were in possession of the plaintiff, both the courts below did not give any importance to the said report and plan marked as Exs.C-1 and C-2.
26. On going through the judgment of the trial court as well as the lower appellate court, it is clear that though the trial court has not discussed anything about the Commissioner's report, the lower appellate court has considered the same and held that the report of the Advocate Commissioner cannot be of any use to the appellant/plaintiff since he was not competent to say as to who was in possession and he was asked to file the inspection report and in the said report, he was not expected to give his own finding with regard to possession and therefore, the said report was rightly rejected. In my view, the said finding by the lower appellate court with reference to the Commissioner's report is correct.
27. The acceptance or rejection of the Commissioner's report is entirely within the court's competence. It is well settled that Advocate Commissioner can be deputed to do a particular job for instance inspection of spot or carrying out measurements. The court will not delegate its own powers to decide any dispute between the parties. In the present case, the job of the Advocate Commissioner was to carry out measurements on the spot and prepare plan with reference to the availability of the materials. He did not have any jurisdiction to decide the question as to who is in possession.
28. The report of the Commissioner does not have any evidentiary value except to show what he saw on the site when he inspected it. Secondly, the Commissioner's report is not regarded as substantive evidence. It can never prove title or possession.
29. In the instant case, the Advocate Commissioner actually decided the whole issue between the parties by way of observing that the land in dispute is in possession of the plaintiff. On that account, the entire report of the Advocate Commissioner is not worthy of acceptance.
30. The above principles have been laid down in Veppanathar alias Karuppannan v. Kaliappan , Srinivasan Chettiar v. Santhanam Chettiar (1997)2 M.L.J. 653 : (1997)2 L.W. 228, Bibhuti Bhushan v. Sadhan Chandra , Ramadoss Naidu v. Ramakrishnan Naidu 1987 T.N.L.J. 266, Brij Lal v. Ram Pratap A.I.R. 1982 Del. 149 and Subbamma v. Penchalaiah 1977 A.L.T. 534.
31. In the light of the above legal position, it cannot be contended that there is illegality committed by both the courts below in ignoring the Commissioner's report.
32. It is important, in this context, to refer as pointed out by the lower appellate court, that the plaintiff while filing the suit had not chosen to mention the pendency of the petition filed by the second defendant for recording defendants' name as cultivating tenants, but sought the relief of permanent injunction as if he is in possession for the past five years have been prior to the date of sale deed as a tenant under Kamalammal. This shows that the plaintiff did not approach the court with clean hands.
33. As held by this Court as well as the Apex Court in the decisions in Srinivasa Naicker v. Rangaswami Naicker 88 L. W. 56, Alagumani Moopanar v. Subbiah (1998)3 M.L.J. 581, Karnataka Board of Wakf v. Anjuman-E-Esmail Madris-un-Niswan A.I.R. 1999 S.C. 3067, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999)2 M.L.J. (S.C.) 105 : and Arumugham v. Sundarambal , when factual findings were rendered on the basis of the available materials by the last court of fact being first appellate court, this Court would not interfere with those findings sitting in second appeal by invoking Section 100, C.P.C., especially when it is not established that those findings are perverse. On the other hand, this Court would certainly hold that both the courts below have correctly concluded that the plaintiff would not be entitled to the relief of permanent injunction.
34. In this context, it is also relevant to note that under Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, no civil court shall have jurisdiction in respect of any matter which the record officer, the District Collector or other officer has to determine and no injunction shall be granted by any court in respect of any action taken or to be taken by such officer in pursuance of any power conferred by or under this Act. On this ground also, in my view, the plaintiff would not be entitled to the grant of injunction, particularly when the Revenue forum determined the question with reference to the record of tenancy in favour of the defendants.
35. As noted above, against the order passed by the District Revenue Officer, writ petition was filed in W.P.No. 593 of 1991. As a matter of fact, the defendants filed petition before the Tahsildar and the same was numbered in 1986 and after enquiry, the Tahsildar recorded the name of the defendants as cultivating tenants under Kamalammal by the order dated 25.5.1987. Though it was set aside by the Special Deputy Collector, in the revision, the District Revenue Officer concluded that the order of the Tahsildar is correct in holding that the defendants are the cultivating tenants under Kamalammal.
36. It is seen from the records that though Kamalammal executed a sale deed in favour of the plaintiff as early as in the year 1987, she filed an appeal before the Special Deputy Collector and contested the matter and ultimately, the Special Deputy Collector by the order dated 21.7.1989 allowed the appeal and set aside the order of the Tahsildar. Against the said order, the second defendant filed a revision before the District Revenue Officer on 31.7.1989. After enquiry, passed an order in favour of the defendants holdings that they are cultivating tenants and their name is to be recorded in the Record of Tenancy.
37. As correctly pointed out in the order Ex.B-20, Kamalammal having submitted before the Tahsildar that she already sold the properties to the plaintiff and as such she did not have any interest in the properties, there was no reason as to why she filed an appeal before the appellate forum.
38. The same observation would be applicable to the present writ petition also. The present writ petition has been filed by Kamalammal, even though she projected her case before the Tahsildar that she was not in any way connected with the suit properties, as she had already sold the same.
39. As a matter of fact, in this writ petition, the application was taken out by the defendants in W.M.P.No. 4930 of 1995 to vacate the stay of the operation of the order of the District Revenue Officer dated 3.10.1990, this Court passed an order dated 26.4.1995 vacating the interim stay on the ground that the writ petitioner Kamalammal, had already sold the properties.
40. Furthermore, it is now pointed out that Kamalammal, the writ petitioner has already died. Admittedly, no steps have been taken for bringing the legal representatives of the said Kamalammal on record in the writ petition to prosecute this writ petition. As such, the writ petition is liable to be dismissed as abated.
41. In view of the above discussion, the plaintiff/appellant would not be entitled to the relief of permanent injunction and as such, the second appeal is dismissed in respect of the said relief. But, however, as noted above, he would be entitled to the relief of declaration of title in respect of the suit properties accepting the substantial question of law which has been formulated by this Court by the order dated 6.10.1993 and as such, the judgment and decree passed by the courts below are set aside in so far as the dismissal of the suit with reference to the declaration of title alone.
42. In the result, the second appeal is partly allowed. The plaintiff/appellant would be entitled to the declaration of title, but the relief in respect of permanent injunction is rejected. No costs. The writ petition is dismissed as abated. Consequently, W.M.P.No. 29871 of 1997 is also dismissed.