Madras High Court
R.Jayachandran vs Mohamed Sirajudeen on 10 February, 2021
Author: R.Subramanian
Bench: R.Subramanian
S.A.(MD).No.58 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.02.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD).No.58 of 2021
and
C.M.P.(MD).No.627 of 2021
R.Jayachandran ... Appellant
Vs.
1.Mohamed Sirajudeen
2.Mohamed Bakrudeen
3.Malathi
4.Pandeeswari
5.Thennarasu
6.Pandiarasu
... Respondents
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 17.09.2019 passed in A.S.No.
79 of 2015 on the file of the Principal Subordinate Judge, Madurai,
confirming the judgment and decree dated 28.04.2015 passed in O.S.No.16
of 2008 on the file of the District Munsif Court, Madurai Taluk.
For Appellant : Mr.Arjun Varman
for M/s. T.Lajapathi Roy
For Respondents : Mr.T.K.Gopalan
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http://www.judis.nic.in
S.A.(MD).No.58 of 2021
JUDGMENT
The plaintiff in O.S.No.16 of 2008, whose suit for permanent injunction was dismissed by the trial Court, upon confirmation of the said dismissal by the lower appellate Court, has come up with the second appeal.
2. The case of the plaintiff as projected before the trial Court is that the suit property belonged to one Mohammad Muneerdhin, who happens to be the senior paternal uncle of defendants 1 and 2. It is claimed that the maternal great grand mother of the plaintiff viz., one Nallammal was a cultivating tenant under the said Mohammad Muneerdhin and she was registered as a tenant in the year 1969. It is the further claim of the plaintiff that the said Nallammal died in the year 1979, leaving behind her only daughter Ayakkal, who was cultivating the property as a cultivating tenant. The said Ayakkal died leaving behind the plaintiff's father Raju Thevar. The plaintiff's father Raju Thevar was cultivating the property as a tenant and after his death, the plaintiff doing cultivation in the property and therefore, the plaintiff being the cultivating tenant is in possession of the property. 2/9 http://www.judis.nic.in S.A.(MD).No.58 of 2021
3. The suit is resisted by the defendants contending that though Nallammal was the tenant, upon her death, his daughter Ayakkal was cultivating the property and after the death of Ayakkal, Chellammal, D/o. Ayakkal was cultivating the property as a tenant, Chellammal's son Ravichandran had executed a deed relinquishing his tenancy over the property. It was also the contention of the defendants that the plaintiff was never in possession of the property as a cultivating tenant and therefore, he is not entitled to injunction. It is also contended that the defendants 1 and 2 have sold the property to the third defendant Murugan. The said Murugan had in turn sold the property to the fourth defendant Malathi under the sale deed dated 18.07.2007. Since Murugan died pending suit, the defendants 5 to 7 being his legal heirs were impleaded in the suit.
4. At trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A12 were marked. M/s.K.Masanam and R.Palanichamy were examined as P.Ws. 2 and 3. The first defendant was examined as D.W.1, one Thangaraj was examined as D.W.2 and Exs.B1 to B15 were marked.
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5. The learned trial Judge upon consideration of the evidence on record, concluded that the plaintiff has not established that he has been in possession of the property and cultivating the same contributing his own physical labour or that of any member of his family, in order to come within the definition of a Cultivating Tenant under the provisions of the Tamil Nadu Cultivating Tenants Protection Act, 1955 (Act XXV of 1955). Adverting to the definition of Cultivating Tenant, under the said enactment, the trial Court concluded that the plaintiff cannot seek an injunction as cultivating tenant, unless he establishes that he has been contributing his own physical labour or that of any member of his family in cultivating the property. The trial Court also found that the plaintiff has attested the deed of release executed by Ravichandran, S/o.Chellammal, in favour of the defendants 1 and 2. On the said finding, the trial Court has dismissed the suit. Aggrieved, the plaintiff preferred an appeal in A.S.No.79 of 2015. The learned appellate Judge, upon reconsideration of the evidence on record, concurred with the findings of the trial Court. The attempt made by the plaintiff to introduce certain documents in the appellate stage under Order 4/9 http://www.judis.nic.in S.A.(MD).No.58 of 2021 41 Rule 27 of C.P.C., was also rejected by the appellate Court. Upon concurrence with the finding of the trial Court, the learned appellate Judge dismissed the appeal, confirming the judgment and decree of the trial Court. Hence, the second appeal.
6. I have heard Mr.Arjun Varman, learned counsel appearing for Mr.T.Lajapathi Roy, counsel for the appellant and Mr.T.K.Gopalan, learned counsel appearing for the respondents.
7. Mr.Arjun Varman, learned counsel appearing for the appellant would vehemently contend that the Courts were not right in concluding that the appellant cannot be termed as a cultivating tenant within the meaning of the provisions of the Tamil Nadu Cultivating Tenants Protection Act, 1955. My attention was drawn to the admitted fact that Nallammal was registered as a tenant in the year 1969 and on her death in the year 1979, her daughter Ayakkal continued in possession as a cultivating tenant and thereafter, the father of the plaintiff Raju Thevar was cultivating the property. The learned counsel for the appellant would submit that the release deed executed by 5/9 http://www.judis.nic.in S.A.(MD).No.58 of 2021 Ravichandran, S/o. Ayakkal is not valid as he alone has been cultivating the property as a tenant.
8. The definition of a Cultivating Tenant under the Act reads as follows:
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 lire 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 riot withstanding 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;] A reading of the above provision makes it clear that not all heirs of tenants could be termed as cultivating tenants. In order to claim as cultivating tenant, such heir must prove that he or she contributes his or her 6/9 http://www.judis.nic.in S.A.(MD).No.58 of 2021 own physical labour or that of any member of the family in the cultivation of the land in question.
9. Both the Courts below have adverted to the definition and have held that there is total lack of evidence on the side of the plaintiff to show that he has been contributing his own physical labour or that of any member of his family in cultivation of the land in question. Despite his best efforts, the learned counsel for the appellant is unable to project any material to enable me to conclude that such factual finding recorded by the Courts below is perverse. Once such factual finding is reached, that finding could not be disturbed for want of perversity or ignorance of some material available on record. I do not think that the findings of the Courts below are erroneous. No doubt an attempt was made by the plaintiff to introduce some evidence at the appellate stage. But the same was rejected by the appellate Court due to non-compliance with the requirements of Order 41 Rule 27 of the Code of Civil Procedure. I am unable to see any reason to interfere with the said conclusions of the appellate Court, where it rejected the application for introducing additional evidence. Despite his best efforts, the learned 7/9 http://www.judis.nic.in S.A.(MD).No.58 of 2021 counsel for the appellant is unable to make out a question of law much less the substantial question of law, in order to enable me to entertain the appeal. The appeal therefore fails and it is accordingly dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.
10.02.2021 akv Index: Yes/No Inernet: Yes/No To
1.The Principal Subordinate Judge, Madurai.
2. The District Munsif Court, Madurai Taluk.
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