Madras High Court
Kandasamy vs Ammasai Gounder (Deceased) on 22 July, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 22.06.2022
Pronounced on : 22.07.2022
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.Nos. 773 & 774 of 1997
S.A.No. 773 of 1997:
Kandasamy ... Appellant/2nd Plaintiff
Vs.
1. Ammasai Gounder (Deceased)
2. Mrs. A.Ammsai Ammal
3. Mrs. A.nagammal
4. Mr.A.Loganathan ... Respondents/LRS of the Defendant
[ RR 2 to 4 brought on record as LRs of the deceased sole respondent
vide order of Court dated 23.06.2014 made in C.M.P.Nos. 1772 to 1774
of 2010 in S.A.No. 773 of 1997]
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PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree of the learned
Subordinate Court, Tiruppur dated 19.03.1996 and made in A.S.No. 23
of 1992 confirming the decree and Judgment of the learned District
Munsif, Tiruppur, dated 25.02.1992 made in O.S.No. 713 of 1984.
S.A.No. 774 of 1997:
1. Kandasamy
2. Muruganathan ... Appellants/Defendants 2 & 3
Vs.
1. Duraisamy (Died)
2. Vadivelu
3. Ammasai Gounder (deceased)
... Respondents 1 to 3/Plaintiffs 1, 2 & 3 and 1st
defendant
4. Tmt. Angammal
5. Tmt. Subbulakshmi
6. Minor Vanitha
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7. Minor Saravanan
... Respondents 4 to 7/LRS of the first plaintiff
8. Mrs. A.Ammasai Ammal
9. Mrs. A.Nagammal
10. Mr.A.Loganathan
... Respondents 8 to 10/ LRS of 1st Defendant
[ RR 8 to 10 brought on record as LRs of the deceased R3 vide order of
Court dated 23.06.2014 made in C.M.P.Nos. 1775 to 1777 of 2010 in
S.A.No. 774 of 1997]
11. Indirani
12. Minor Pravinkumar ... Respondents 11 & 12/LRS of 2nd
plaintiffs
[ RR 11 and 12 brought on record as LRs of the deceased R1 vide
Duraisamy vide order of Court dated 07.08.2019 made in C.M.P.Nos.
20069 to 20071 of 2016 in S.A.No. 774/1997]
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree of the learned
Subordinate Court, Tiruppur dated 19.03.1996 and made in A.S.No. 24
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of 1992 confirming the decree and Judgment of the learned District
Munsif, Tiruppur, dated 25.02.1992 made in O.S.No. 301 of 1988.
***
For Appellant in
both S.A.Nos. : Mr. P.Valliappan
st
For 1 Respondent in
S.A.No. 773 / 19979 : died
For RR 2 to 4 in
S.A.No. 773/1997 : No appearance
For RR 1 & 3 in
S.A.No. 774/1997 : Died
For RR 2 and 4 to 7 in
S.A.No. 774/1997 : Mr. K.Govi Ganesan
For RR 8 to 10
in S.A.No. 774/1997 : No appearance
For RR 11 & 12
in A.S.No. 774/1997: No appearance
COMMNO JUDGMENT
The plaintiff, Kandasamy, in O.S. No. 713 of 1984, on the file of
the District Munsif Court, Tiruppur is the appellant in Second Appeal No.
773 of 1997.
2. O.S. No. 713 of 1984 had been filed by P. Ganapathy Gounder,
who died pending the suit, and whose son, Kandasamy was brought on
record, against Ammasai Gounder, seeking permanent injunction,
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restraining the defendant from interfering with peaceful possession of the
lands totally measuring 31.05 acres in one block in S.F. Nos. 529, 546,
547, 548 and 549 in Eattiveerampalayam Cusbha of Appiyapalayam
Group in Tiruppur, in the then Coimbatore District.
3. The 3rd and 4th defendants, Kandasamy and Muruganathan,
both brothers, in O.S. No. 301 of 1988, also on the file of the District
Munsif Court, Tiruppur are the appellants in Second Appeal No. 774 of
1997.
4. O.S. No. 301 of 1988 had been filed by three brothers,
Kandasamy, Duraisamy and Vadivelu against Ammasai Gounder,
Kandasamy and Muruganathan, restraining the defendants from
interfering with peaceful possession of the same suit schedule lands.
5. Since the issue involved in both the suits were with respect to
recognizing possession based on rival claims as cultivating tenants over
the same lands, joint trial was conducted and common judgment was
delivered on 25.02.1992, dismissing O.S. No. 713 of 1984 and decreeing
O.S. No. 301 of 1988.
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6. Aggrieved by the said judgment, the unsuccessful plaintiffs in
O.S. No. 713 of 984 / 3rd and 4th defendants in O.S. No. 301 of 1988
filed A,S, Nos. 23 and 24 of 1992 before the Sub Court Tiruppur. By
common judgment dated 19.03.1996, both the appeal suits were
dismissed.
7. Thereafter, the unsuccessful appellants filed the present two
second appeals.
8. The second appeals had been admitted on the following
substantial question of law
“Whether the courts below are correct in
dismissing the suit filed by the appellant
herein and by the respondent herein against
him merely relying on Ex. B-6 which is not
binding the appellant as he is not a party to
it ?”
9. Pending the second appeals, the respondent in S.A. No. 773 of
1997, Ammasai Gounder died and his legal representatives were brought
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on record as 2nd to 4th respondents.
10. The said Ammasai Gounder was the 3rd respondent in S.A.
No. 774 of 1997, and his legal representatives were brought on record as
8th to 10th respondents. The 1st respondent, Duraisamy also died and his
legal representatives were brought on record as 11th and 12th
respondents.
O.S. No. 713 of 1984 (District Munsif Court, Tiruppur) :
11. The plaintiff P. Ganapathy Gounder claimed that the suit lands
to one Fakruddin Sahib and that the plaintiff was cultivating the lands as
tenant for the past 50 years. The tenancy continued under his son Sultan.
He was also paying Government kist. He further claimed tht the
defendant, Ammasai Gounder, a stranger, claimed to be owner and
attempted to trespass into the lands. The plaintiff also claimed tht he had
applied to the Tenancy Officer cum Tahshildar, Tiruppur to record his
name in the tenancy records. Seeking protection of possession from the
defendant, the suit had been filed for permanent injunction.
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12. In the written statement, the defendant claimed to be the
brother in law of the plaintiff and not a stranger. He claimed to have
purchased 67/112 share in the suit lands and further claimed to be in
lawful possession. He further stated that the brother of the plaintiff, by
name Ramasamy Gounder was the actual cultivating tenant. He claimed
that the plaintiff was in unlawful possession, and therefore urged that the
suit should be dismissed.
O.S. No. 301 of 1988 (District Munsif Court, Tiruppur) :
13. This suit had been filed by sons of Ramasamy Gounder, the
brother of the plaintiff in O.S. No.713 of 1984. The suit had been filed
against Ammasai Gounder and also against Kandasamy and
Muruganathan, the sons of the plaintiff in O.S. No. 713 of 1984. The
plaintiffs claimed that it was their father, Ramasamy Gounder who was
cultivating the lands under Fakrudin Sahib and later under his son,
Sultan. The plaintiffs also claimed that thye had filed an application to
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record their names as cultivating tenants in the land records, and they
further stated that their names were actually recorded. They claimed to be
in lawful possession. Complaining that the defendants were interfering
with peaceful possession, the suit was filed for permanent injunction to
protect possession.
14. The 3rd and 4th defendants, Kandasamy and Muruganathan,
sons of the plaintiff in O.S. No. 713 of 1984 filed a written statement
denying and disputing the claims of the plaintiffs. They claimed that their
father, Ganapathy Gounder, the plaintiff in O.S. No. 713 of 1984 was in
lawful possession of the suit lands. He had filed an application to
recognize him as a cultivating tenant. The 1st defendant, Ammasai
Gounder, however contested that application. It was claimed that the
plaintiffs and the 1st defendant were inimical to these defendants. It was
therefore prayed that the suit should be dismissed.
15. The District Munsif, Tiruppur, conducted joint trial of both the
suits. The issues in both the suits were whether the respective plaintiffs
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were entitled to the relief of permanent injunction sought by them over
the same lands. The suit in O.S. No. 713 of 1984 was taken to be lead
suit and the plaintiffs therein were directed to lead evidence.
16. The plaintiff in O.S. No. 713 of 1984, Kandasamy, was
examined as P.W.1 and another witness, Sivasamy was examined as
P.W.2. The 1st defendant, Ammasai Gounder was examined as D.W.1, the
1st plaintiff in O.S. No. 301 of 1988, Kandasamy was exmined as D.W.2
and another witness, Arunachala Gounder was examined as D.W.3. The
plaintiffs marked Exs. A1 to A12. Exs. A2 to A8 were kist receipts and
Ex. A10, dated 10.12.1990 were the proceedings of the Tahshildar cum
Land Officer. The defendants marked Exs. B1 to B20. Exs. B1 to B4
were the sale deeds in favour of Ammasai Gounder. Ex. B5 was a copy of
the patta and Ex. B6 was the proceedings of the Tahshildar cum Land
Officer dated 21.05.1984 Exs. B7 to B20 were kist receipts.
17. The District Munsif, Tiruppur, in a well considered judgment
dated 25.02.1992 proceeded to analyse the oral and documentary
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evidence produced. The suit was with respect to vacant agricultural land.
Both he plaintiffs claimed that they were cultivating the lands. The
decision naturally revolved around the documentary evidence produced.
18. It was observed that the 1st defendant, Ammasai Gounder
proved title by producing Exs. B1 to B4, sale deeds dated 13.07.1967,
06.09.1967, 06.09.1967 and 29.11.1967. The truth or validity of the sale
deeds could not be impinged. To further substantiate possession, Ex. B5,
patta in the name of Ammasai Gounder had also been produced. The
plaintiffs did not produce acceptable documents to establish that they
were recognized as cultivating tenants. On the other hand, Ex. B6 had
been produced, which was the copy of the proceedings dated 21.05.1984
recognising the plaintiffs in O.S. No. 301 of 1984 as cultivating tenants
by the Special Tahshildar cum Land Revenue Officer. Ammasai Gounder
was also a party to the said proceedings and, as land owner, he affirmed
that the plaintiffs in O.S. No. 301 of 1984 alone were the cultivating
tenants.
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19. In view of such evidence, O.S. No. 713 of 1984 was dismissed
and O.S. No. 301 of 1984 was dismissed against the 3rd and 4th
defendants, while retaining the rights of the landowner, the 1st defendant,
Ammasai Gounder.
A.S. Nos. 23 and 24 of 1992 (Sub Court, Tiruppur):
20. The unsuccessful plaintiffs in O.S. No. 713 of 1984 whose suit
was dismissed and against whom injunction was granted in O.S. No. 301
of 1988, filed the aforementioned two appeal suits.
21. By judgment dated 19.03.1996, the learned Sub Judge again
reappraised the evidence on record. It was observed that the plaintiffs in
O.S. No. 713 of 1984 had laid their claim of possession on the basis of
oral permission to cultivate. This was weighed against Ex. B6,
proceedings recognizing by the competent authorities, the plaintiffs in
O.S. No. 301 of 1988 as the cultivating tenants. The title and controlling
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possession of Ammasai Gounder had also been established by production
of Exs. B1 to B4, sale deeds and Ex. B5, patta. The learned sub Judge
opined that he had no other option but to affirm the decrees of the trial
Court and proceeded to dismiss both the appeal suits.
S.A. Nos. 773 and 774 of 1997 :
22. The unsuccessful plaintiffs in O.S. No. 701 of 1984, who were
also the 3rd and 4th defendants in O.S. No. 301 of 1988, then preferred
the present two second appeals.
23. The second appeals had been admitted on the following
substantial question of law :
“Whether the courts below are correct in
dismissing the suit filed by the appellant herein
and by the respondent herein against him merely
relying on Ex. B-6 which is not binding the
appellant as he is not a party to it ?”
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24. The facts are simple and straightforward. Ramasamy Gounder
and Ganapathy Gounder were two brothers. Ammasai Gounder was their
brother in law, who unfortunately had inimical issues against Ganapathy
Gounder and his sons. The suit lands, measuring 31.05 acres in one
block, spread over S.F. Nos. 529, 546, 547, 548 and 549 in
Eattiveerampalayam Cusbha of Appiyapalayam Group in Tiruppur, in the
then Coimbatore District, originally belonged to Fakruddin Sahib.
25. Ganapathy Gounder had instituted O.S. No. 713 of 1984
claiming that he was the cultivating tenant under Fakruddin Sahib and
then under his son Sultan for nearly 50 years and that he had applied to
the competent authorities to recognize him as a cultivating tenant, but that
the defendant therein, Ammasai Gounder, whom he described as a
stranger, interfered with possession, and therefore sought the relief of
permanent injunction to protect possession.
26. The defendant Ammasai Gounder revealed that he was actually
the brother in law of Ganapathy Gounder and also asserted his rights by
claiming that he had purchased a substantial portion of the lands from the
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co-owners who had succeeded to the holding of Fakruddin Sahib after his
death. Those sale deeds were produced as Exs. B1 to B4. The sale deeds
were dated 13.07.1967, 06.09.1967, 06.09.1967 and 29.11.1967. The
plaintiff had not sought to challenge the validity of the sale deeds. Both
the Courts below have confirmed the sale deeds. Ex. B5 was the patta in
favour of Ammasi Gounder. He denied that Ganapathy Gounder or his
sons were cultivating tenants.
27. The sons of Ramasamy Gounder, ther brother of Ganapathy
Gounder filed O.S. No. 301 of 1988 claiming rights as cultivating tenants,
and therefore also sought injunction to protect their possession.
28. In this connection, Ex. B6, surrounding which the substantial
question of revolves, assuming importance.
29. Ex. B6 is the proceedings dared 12.02.1988 of the competent
authority under the Tamil Nadu Agricultural Land Record of Tenancy
Rights Act, 1969, after holding due enquiry, holding that the sons of
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Ramasany Gounder, namely, the plaintiffs in O.S. No. 301 of 1988,
Kandasamy, Duraisamy and Vadivelu as cultivating tenants over the suit
lands measuring 31.05 acres in one block, spread over S.F. Nos. 529,
546, 547, 548 and 549 in Eattiveerampalayam Cusbha of Appiyapalayam
Group in Tiruppur, in the then Coimbatore District. They had filed an
application u/s 4(2) of the said Act on 22.04.1987. The 1st defendant,
Ammasai Gounder, the land owner was shown as the opposite party. He
affirmed that they were his cultivating tenants. Accordingly, their names
were recorded as cultivating tenants u/s 4(3) of the said Act.
30. The substantial question of law, is whether such recording in
the absence of the plaintiffs in O.S.. 701 of 1984 can be taken as
sacrosanct.
Section 6 of the said Act is as follows
: “ Section 6 : Appeal. - Any person
aggrieved by an order made under sub-
section (8) o f section 3, sub-section (3) of
section 4 or sub-section (3) of section 5
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may, within such period as may be
prescribed, appeal to such authority as may
be specified by the Government in this
behalf (hereinafter referred to as the
appellate authority) and the decision of
such authority on such appeal shall, subject
to the provisions of section 7, be final.”
Section 16 A of the said Act is as
follows : “Section 16A : Bar of jurisdiction
of Civil Courts. - No Civil Court shall have
jurisdiction in respect of any matter which
the record officer, the District Collector or
other officer or authority empowered by or
under this Act 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 or authority in pursuance of
any power conferred by or under this Act.”
31. This provision had come up for consideration before a Full
Bench of this Court in Periathambi Goundan vs The District Revenue
Officer, Coimbatore and ors. reported in (1980) 93 LW 169 : (1980) 2
Mad LJ 89 (FB) : AIR 1980 Mad 180.
32. The Full Bench was concerned with Section 16 A, relating to
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ouster of jurisdiction of the Civil Court. But they also pointed out the
object of the Act. They observed
“The object of the Act as well as the
provisions contained in S. 3 (2) make it clear
that a Record Officer or the Appellate or
Revisional Authority has to determine the
following matters—(1) the survey number or
sub-division number, extent and local name, if
any, of the land let for cultivation by a tenant;
(2) the name and address of the landowner;
(3) the name and address of the tenant
cultivating the land. It may be prima facie
stated that these are the four matters which
are required to be determined by the Record
Officer or the Appellate or Revisional
Authority under the provisions of the Act…
.Further, the very object of the Act is to
provide for the preparation and maintenance
of record of tenancy rights in respect of
agricultural lands.”
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33. It is thus seen that the entry by the Record Officer is
conclusive evidence that the sons of Ramasamy Gounder are the
cultivating tenants and this would further indicate that they are in lawful
possession.
34. In view of the law affirmed, I hold with respect to the
substantial question of law framed that the Courts below had correctly
placed reliance on Ex. B6. If the appellants claim that the same is not
binding on them, then they should have taken recourse to the appellate
remedy and the civil court cannot be called upon to enter into a
discussion on that aspect.
35. In view of the above reasons the second appeals stand
dismissed with costs.
22.07.2022
Index :Yes/No
Internet:Yes/No
vsg
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C.V.KARTHIKEYAN, J.
vsg To
1. District Munsif Court, Tiruppur.
2. Sub Court, Tiruppur.
Pre-Delivery Judgment made in S.A.Nos. 773 & 774 of 1997 22.07.2022 https://www.mhc.tn.gov.in/judis