Madras High Court
Renuka Devi vs F. Nazma on 3 February, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 03 02 2014 Coram The Hon'ble TMT. JUSTICE PUSHPA SATHYANARAYANA Second Appeal No. 616 of 2008 1. Renuka Devi 2. Ummakeshwaran 3. Padma Prakasam 4. Geetha Sundararajan .. Appellants vs. 1. F. Nazma Rep. By power agent S.Faizudeen 2. Baby .. Respondents Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 19.11.2007 in A.S. No. 5 of 2007 on the file of the Subordinate Judge, Pollachi, confirming the judgment and decree dated 31.8.2006 made in O.S. No. 364 of 2001 on the file of the District Munsif, Pollachi. For Appellants : Mrs. AL. Ganthimathi For Respondents : Mr. M.K.Kabir, SC for Mr. A. Dhiraviyanath JUDGMENT
Defendants 1 to 4 are the appellants in the suit filed by the first respondent for the relief of ejectment of the defendants from the suit property and recovery of vacant possession.
2. The case of the plaintiff / first respondent is that she purchased the suit property from the second defendant on 04.5.1990. Even prior to the purchase by the plaintiff, one A.P. Shanmugam, who is the father of the appellants 2 to 4 and husband of the first appellant dispossessed the vendor of the plaintiff taking advantage of her old age and occupied the suit properties. Therefore, the second respondent filed O.P. No. 163 of 1987 for evicting the said A.P.Shanmugam before the Special Deputy Collector (Revenue). Though an order was passed in favour of the second respondent, she was unable to evict him. Therefore, the possession of the appellants herein who are the legal heirs of the said A.P.Shanmugham, is illegal. It was contended further by the plaintiff that a suit in O.S. No. 588 of 1995 was filed for permanent injunction restraining the appellants herein from not converting the lands in their possession into a brick kiln. The said suit was dismissed for non-prosecution. The said Shanmugham died in the year 1999. The plaintiff has alleged that the heirs of Shanmugham are not personally tilling the soil and carrying on the agricultural activities. Therefore, they are not entitled to the benefit of the Tamil Nadu Cultivating Tenants Protection Act, 1955. As their possession was illegal, the suit was filed for ejectment.
3. The suit was contested by the defendants claiming that they were the cultivating tenants in possession of the suit property and the reared coconut trees in the suit property. The defendants also contended that the suit in O.S. No. 588 of 1995 would operate as a bar under Order 2 Rule 2 CPC for maintaining the present suit.
4. The plaintiff examined herself as P.W.1 and her husband as P.W.2. Exs. A.1 to A.23 were marked. The respondent was examined as D.W.1 and Exs. B.1 to B.10 were marked.
5. The suit in O.S. No. 364 of 2001 was decreed vide judgment dated 31.8.2006, after contest by the learned District Munsif, Pollachi, and was confirmed on appeal in A.S. No. 5 of 2007 by judgment dated 19.11.2007 passed by the learned Subordinate Judge, Pollachi. Hence, the present Second Appeal.
6. Heard Mrs. AL. Ganthimathi, learned counsel appearing for the appellants and Mr. M.K. Kabir, Senior Counsel, representing the respondents and perused the records.
7. At the time of issuance of notice on 22.4.2008, this Court granted interim stay of recovery of possession alone. Subsequently, the same was made absolute by order dated 12.10.2009 on condition of the appellants depositing a sum of Rs.1,00,000/- towards lease amount.
8. From the above said facts, it is clear that the suit property originally belonged to Nachimuthu and later on, it devolved on his wife Baby, the second respondent herein. Though Exs. B.1 to B.3 show that Shanmugam possessed the property as a tenant, since rents were not paid from the year 1983, the attempt by the appellants to pay the arrears before the revenue authorities was dismissed. As stated earlier, there is already an order of eviction obtained by the vendor of the plaintiff against the appellants. Even presuming that the appellants are the tenants, admittedly when the rents were not paid, it has to be seen whether the appellants are entitled to the protection under the Tamil Nadu Cultivating Tenants (Protection) Act.
9. Admittedly, the petition in I.A. No. 1563 of 2002 filed by the appellants herein for depositing the arrears of rent from 1987 to 2001 was dismissed after an elaborate enquiry. When the competent authority, viz. revenue authorities, have rejected the claim of the appellants, the appellants lose the status of the cultivating tenants and their possession is that of trespassers. After the death of the father of the appellants 1 to 4, each of the appellant is carrying on a different avocation other than cultivating the suit property, which is admitted in the deposition of D.W.1. For better understanding, the relevant passage from the deposition of D.W.1 is extracted below:-
"3k; gpujpthjp gj;kgpufhrk; Xtpauhf gzpg[hpe;J tUfpwhh;/ 1k; gpujpthjpahd nuQqfhnjtpahd vd; jhahh; Mrphpauhf cs;shh;/ 4k; gpujpthjpapd; fzth; Mrphpauhf gzpg[hpe;J tUfpwhh;/ vd; rnfhjhp fPjh m';F ngd;rp !;nlhh; itj;J elj;jp tUfpwhh;/ vd; ghl;o uhkhj;jhSf;F 77 taJ MfpwJ/"
10. D.W.1 also had further admitted that his father Shanmugam had not taken any steps to register himself as cultivating tenant. Therefore, the claim of the appellants that they are the cultivating tenants in possession of the suit property and that they are entitled to protection under the Act and on that ground the suit is not maintainable, is untenable.
11. The second contention raised by the appellants is that the suit is barred by the provision of Order II Order 2 CPC, which reads as follows:-
"2. Suit to include the whole claim. -- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."
12. In order to ascertain whether the suit is barred under Order II Rule 2 CPC, the cause of action in the previous and the present suit has to be examined. Cause of action means every fact which should be necessary for the plaintiff to prove in order to support his right. In other words, cause of action is a bundle of facts which can be taken that the law applicable to them gives the plaintiff a right to relief against the defendants. The cause of action also should include some act done by the defendants since in the absence of such act, no cause of action arises. Ex. B.4 is the copy of the plaint filed in the earlier suit in O.S. No. 588 of 1995 which was dismissed for non-prosecution. The said suit was filed for bare injunction restraining the defendants therein who are also the defendants herein from converting the suit land into a brick kiln. Even in the cause of action paragraph, it was stated that the defendants therein were attempting to convert the suit property into a brick kiln 15 days prior to the filing of the said suit whereas the present suit is filed for ejectment of the defendants and the cause of action pleaded is that they are the trespassers. In view of the same, it cannot be stated that the present suit is hit by the principles of Order II Rule 2 CPC. Besides, the earlier suit was not disposed of on merits and no finding was given. Therefore, on this ground also, the appeal cannot be sustained.
In view of the above factual position, there is no question of law, much less a substantial question of law arising for consideration. In the result, the Second Appeal is dismissed and the judgment and decree of the trial Court dated 31.8.2006 passed in O.S. No. 364 of 2001 as affirmed by the First Appellate Court in A.S. No. 5 of 2007 vide judgment dated 19.11.2007 is confirmed. However, taking into consideration the long possession of the defendants in the suit property, this Court grants three months time, from the date of receipt of a copy of this judgment, to the defendants to hand over possession of the suit property to the plaintiffs. There shall be no order as to costs.
03 02 2014 Index : Yes / No Internet : Yes gri To
1. Sub-Court Pollachi
2. District Munsif Pollachi
3. The Record Keeper V.R. Section High Court Madras.
PUSHPA SATHYANARAYANA, J.
gri Pre-Delivery Judgment in S.A. No. 616 of 2008 Delivered on 03 02 2014