IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.06.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.113 of 2008 and M.P.No.1 of 2008 E.K.M.G.Bakir Ali .. Appellant/6th Defendant vs. 1. G.Sundarraj 2. G.Sugumar 3. G.Selvaraj ..Respondents 1 to 3/Plaintiffs 4. E.K.M.A.Mohamed Siddiq 5. E.K.M.G.Jafarullah ..Respondents 4 & 5/Defendants 1 & 5 6. E.K.M.A.Mohamed Ismoil @ Kuthbudeen Shah 7. T.Mohamed Wasim 8. E.K.M.A.B.Sahabudeen .. Respondents 6 to 8/Defendants 2 to 4 This second appeal is filed against the judgment and decree dated 26.07.2006 passed by the learned I Additional Subordinate Judge, Erode in A.S.No.16 of 2006 confirming the judgment and decree dated 22.09.2005 passed by the learned Principal District Munsif, Erode in O.S.No.1517 of 2004. For Appellant : Mr.N.Manokaran For Respondents : Mr.T.Murugamanickam for RR1 to 3 Mr.V.Thillaisamy for R5 No appearance for RR4 and 6 to 8 J U D G M E N T This second appeal is focussed by the sixth defendant, animadverting upon the judgement and decree dated 26.07.2006 passed by the learned I Additional Subordinate Judge, Erode in A.S.No.16 of 2006 confirming the judgment and decree dated 22.09.2005 passed by the learned Principal District Munsif, Erode in O.S.No.1517 of 2004. 2. The parties are referred to here under according to their litigative status and ranking before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 3. A summation and summarisation of the facts giving rise to the filing of this second appeal and which are absolutely necessary and germane for the disposal of this Second Appeal would run thus: a] The plaintiffs filed the suit seeking the following reliefs: - to pass a decree granting permanent injunction restraining the defendants, their men, assigns and agents in any manner interfering with the plaintiffs peaceful possession and enjoyment of the suit properties till the plaintiffs are evicted from the suit properties under due process of law. - to direct the defendants to pay costs. (extracted as such) b] Written statement was filed by the sixth defendant resisting the suit. c] Whereupon issues were framed. On the side of the plaintiffs, the third plaintiff examined himself as PW1 along with PW2 and marked Exs.A1 to A8. On the side of the defendant, the sixth defendant examined himself as DW1 and marked Exs.B1 to B14. d] Ultimately the trial court decreed the suit. As against which, appeal was filed by the defendants 2,3,4 and 6 for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court. 4. Challenging and impugning the judgments and decrees of both the courts below, this Second Appeal has been filed by the D6/4th appellant on various grounds suggesting the following substantial questions of law: a. Whether the courts below have committed an error in holding that the plaintiffs being the sons of the original tenant is entitled to claim the status of cultivating tenants especially when there is no oral or documentary evidence to prove their contribution of physical labour to claim the status as cultivating tenants and further more the tenancy is not heritable in nature? b. Whether the courts below are right in law in overlooking the admission made by PW1 which would go against his own case, particularly when the appointment of watchman, the management and the usage of the land by the defendants have been categorically admitted in the evidence, however the courts below have wrongly shifted the burden of proof on the defendants unmindful of the settled proposition of law? https://hcservices.ecourts.gov.in/hcservices/ c. Whether the findings of the courts below in holding that the plaintiffs are cultivating tenants is legally sustainable in law especially when the plaintiffs have not proved their case independently and they cannot take advantage of the weakness in the defence by relying upon some stray sentences in the evidence of DW1, more particularly the plaintiffs are permanently employed in the postal Department? (extracted as such) 5. After hearing both sides, I am of the considered view that the following substantial questions of law could be framed: 1. Whether both the courts below failed to decide the lis adhering to the principles governing the burden of proof? 2. Whether both the courts below in the absence of clinching legal evidence to prove the alleged possession of the plaintiffs in respect of the suit property, decided the lis in their favour? 3. Whether the judgments and decrees of both the courts below are bad for misreading of the evidence and applying wrongly the law relating to evidence in proving the possession of the suit property? 4. Whether there is any perversity or illegality in the judgments and decrees of both the courts below? 6. Heard both sides on the aforesaid substantial questions of law. 7. A 'resume' of facts, which are admitted or at least undeniable would run thus: (i) The defendants are the land owners in respect of the suit property. The plaintiffs' father, viz., Ganapathy Thevar was cultivating the said suit property till his death in the year 1993 by contributing his physical labour and as such, he was a cultivating tenant in respect of the suit property. (ii) The contentions of the plaintiffs are to the effect that consequent upon the death of their father Ganapathy Thevar, the plaintiffs who are the sons of Ganapathy Thevar, automatically became cultivating tenants by virtue of they being in possession and enjoyment of the suit property and contributing their physical labour in growing crops thereon. https://hcservices.ecourts.gov.in/hcservices/ (iii) However, the contention of the land owners, viz., the defendants, are to the effect that subsequent to the death of Ganapathy Thevar during the year 1993, his sons viz., the plaintiffs volitionally and voluntarily surrendered the land to the defendants, as P1 and P3 were employed in part time jobs in post office and P2 was owning a printing press in Coimbatore, 100 kms away from the suit property. 8. Tersely and briefly, the arguments of the learned counsel for the plaintiffs would run thus: a. The adangal records Exs.B3 to B13 and the electricity receipts (Ex.A8 series) would unambiguously and unequivocally highlight and spotlight the fact that ever since the death of the plaintiffs' father, the plaintiffs being the cultivating tenants, are cultivating the land by contributing their physical labour. At any rate, they have been in possession and enjoyment of the suit property. b. No steps have been taken to get mutated the adangal records by getting deleted the entry "lease hold cultivation". The burden of proof was on the defendants to prove that the plaintiffs allegedly surrendered the suit property, but they failed to discharge the same. Both the courts below appropriately and appositely held that the defendants have not proved the plea of surrender as detailed and delineated by them in their written statement. Accordingly, the learned counsel for the plaintiffs would pray for dismissal of the second appeal by appreciating the point that as against concurrent findings of fact, no interference in second appeal is warranted. 9. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the plaintiffs, the learned counsel for the defendant would advance his arguments, which could pithily and precisely be set out thus: (i) The plaintiffs, on whom the burden of proof lies in proving their case, has failed miserably to prove as to what crops they cultivated for a decade, so to say, from 1994 to 2004. There is no iota or shred, shard or miniscule, pint or scintilla of evidence to display and demonstrate that the plaintiffs paid the rent to the defendant or at least tendered the rent or deposited the rent with the revenue authority concerned as per the Tamil Nadu Cultivating Tenants Protection Act or any other law. P1 and P3 being part time employees in Postal Department and P2 being the press owner in Coimbatore, which is 100 kms away from the suit property, by no stretch of imagination could be taken as the ones who contributed their physical labour in raising cultivation in the suit property. Both the courts below fell into error in placing reliance on Ex.A6, https://hcservices.ecourts.gov.in/hcservices/ which is not at all relating to the impugned period so to say, from 1994 to 2004, but that was relating to the year 1987, when admittedly, Ganapathy Thevar, the cultivating tenant was cultivating the crops in the suit property. As such, both the courts below failed to appreciate properly the concept burden of proof and apply the same in deciding the lis. (ii) Both the courts below failed to appreciate the fact that the defendants abandoned the land even as early as in the year 1994 in favour of the plaintiffs because, they were not interested in cultivating the land. Now they cannot veer round and by having a volte face try to lay claim over the suit property. (iii) Both the courts below based on misunderstanding of the case and misreading of the evidence decided the lis, warranting interference in second appeal. 10. I would like to fumigate my mind with the following principles as found enunciated and enshrined in the following decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL 24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." The other decisions emerged in this regard are as under: (i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. https://hcservices.ecourts.gov.in/hcservices/ 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." (ii) AIR 2008 SC 1749 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL 11. Trite the proposition of law is that as against the concurrent findings of fact, there may not be any interference in second appeal but in exceptional circumstances, the High Court is not niggard and bereft of powers to interfere with perverse finding of facts emerged out of misreading of the evidence and wrong applications of law relating to evidence. 12. I also recollect and call up the maxims, Affirmantis est probare [He who affirms must prove] (ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies. The burden of proof is on the plaintiff who comes to court with a case of his own. Here the plaintiffs' contentions are that they are the cultivating tenants, continuing to cultivate the suit property following the cultivation of the lands by their deceased father, viz., Ganapathy Thevar. In such a case, the burden of proof is on them to prove the same. 13. The learned counsel for the plaintiffs' contention to the effect that the defendants having chosen to specifically plead that during the year 1994, there was surrender or abandonment of the land in favour of them, it is for them to prove it. In my opinion, such an argument is a far-fetched one quite antithetical to the rule of evidence for the reason that the plaintiffs should at the first instance prove that consequent upon the death of their father, who happened to be the cultivating tenant in respect of the suit property, they continued to cultivate the suit property as cultivating tenants or at least as tenants. This court has tried its level best to find out as to whether there is any jot or pint of evidence , which would demonstrate and display, evince and evidence https://hcservices.ecourts.gov.in/hcservices/ that the plaintiffs actually had cultivated during the period ranging from 1994 to 2004 ie., till they filed the suit. I could see no miniscule or molecular extent of evidence in their favour. 14. If at all a person, as a tenant, has been cultivating a land for a decade or so, certainly there would be some records, which would enable him to prove before the court objectively that he cultivated the said piece of land. But in this case, the plaintiffs could not produce any such evidence. 15. Indubitably and indisputably, for the said 10 years period, no rent was paid by the plaintiffs, who claim to be the cultivating tenants/tenants under the admitted land owners, viz., the defendants. 16. The law is clear on the point that a tenant is expected to pay the rent to the landlord and if there is refusal or even if there is any dispute relating to the rent, it is for the tenant to deposit it with the revenue authority concerned under the Tamil Nadu Cultivating Tenants Protection Act or the court under the general civil law. But, in this case, no such event occurred at all. If really for 10 years, the plaintiffs had been cultivating the said land, then the defendants would not have kept quiet without even demanding for rent. The plaintiffs also could not have continued in possession for 10 years without paying rent. 17. I hark back to the legal adage "Preponderance of probabilities would govern the adjudication in civil cases"; here, those preponderance are in favour of the defendants and not in favour of the plaintiffs. 18. The learned counsel for the plaintiffs would place reliance on the adangal records, viz., Exs.B3 to B13 and point out that no steps have been taken by the defendants to get mutated the said adangal by getting deleted the phrase "lease hold cultivation" and that itself is indicative of the fact that in reality, the defendants have not been in possession. 19. I would like to point out that in the adangal records, there is no specification of any tenant's name. What is found mentioned therein is the phrase "lease hold cultivation". However, one other important point should be noted that no where it is found stated that a particular kind of crop was cultivated during the said long 10 years' period. However, anterior to that, so to say, during the year 1993, in the adangal pertaining to the said land, it is found specified that Turmeric crop was cultivated therein. After 1993, that is to say, after the death of the cultivating tenant- Ganapathy Thevar, were there any cultivation continued, certainly that would have found place in the adangal. The plaintiffs while vociferously finding fault with the defendants for having not taken steps to get mutated the revenue records, have forgotten as to why https://hcservices.ecourts.gov.in/hcservices/ they had not taken such steps to get incorporated their names in such records including the crops, which they allegedly cultivated in the suit property. As such, the plaintiff cannot approbate and reprobate and blow hot and cold. The adangal extracts, which the plaintiffs tried to place reliance bespeak against them. Both the courts below without au fait with law and au courant with facts, simply proceeded on the footing that the plaintiffs being the sons of deceased Ganapathy Thevar should be taken as the ones continuing in possession of the suit property. 20. The learned counsel for the defendant would invite the attention of this court to the depositions of PWs.1 and 2 and point out that PW1 happened to be the third son of deceased Ganapathy Thevar and PW2 is none but the close relative of PW1 and their evidence is nothing but their ipse dixit, which in no way throws light on the issue relating to possession. As claimed by PW1 were there any such physical contribution of labour by the plaintiffs in raising crops, then necessarily there would have been some documents in their favour. But no such document is available. The averments on plaintiffs' side are nothing but a load of baloney, which fails to carry conviction with this court. 21. Relating to payment of electricity charges is concerned, the learned counsel for the plaintiffs would place reliance on Ex.A8 series and argue that ever since 1993, the plaintiffs were paying the electricity charges and nothing could be shown by the defendants that they paid the electricity charges. 22. At this juncture, I would like to point out that were any electricity supply utilised for cultivating the crops in an extent of 1 acre and 3 cents, certainly, the consumption charges would not have been so low, but it would have been more. 23. The learned counsel for the defendant would try to expound and explain away that Ex.A8 series, which were in the possession of the defendants and filed in court, by pointing out that those receipts had been received by the plaintiffs from the defendant's servant, who was put in charge as watchman to look after the suit property. 24. Be that as it may, the electricity receipts by themselves for the reasons set out supra, do not in any way evince and evidence that the plaintiffs' have been cultivating the suit property during the said period. 25. Axiomatic and obvious that proving a particular individual is a cultivating tenant, is different from proving that a person is in possession of the suit property as a tenant. 26. Here, I need not even go to the extent of expecting that https://hcservices.ecourts.gov.in/hcservices/ the plaintiffs ought to have proved that they were cultivating tenants, so to say, they were cultivating the suit property by contributing their physical labour, but at least they ought to have established that during the aforesaid period, they were in possession and enjoyment of the suit property. In order to probabilise the defence, the defendants have gone to the extent of pointing out convincingly and acceptably that P2 who is owning a printing press in Coimbatore, which is 100 kms away from the suit property could not have been physically contributing his labour or personally cultivating the suit property. So far as P1 and P3 are concerned, the contention of the plaintiffs is that during their free time they were contributing their physical labour and raising crops in the suit property and in support of the same, not even the Village Administrative Officer or any other prominent person of that locality was examined. In order to buttress and fortify their claim what is required under law is that there should be some reliable oral or documentary evidence. 27. My mind is reminiscent and redolent of the maxim "In re dubia magis infitiatio quam affirmatio intelligenda – [In a doubtful matter, the negation is to be understood rather than the affirmation]. But in this case, I could see no such reliable piece of evidence. Both the courts below misunderstood the gamut of the case and they proceeded on the mere assumption having no legs to stand that Ganapathy Thevar was the cultivating tenant and the plaintiffs being the sons should be presumed to have been in possession and enjoyment of the suit property. In my considered opinion, such a finding is not legally acceptable. 28. En passante, at this juncture, it would not be out of context to refer to some other more or less similar laws prevailing in some part of India other than Tamil Nadu; in those legislations, there are express provisions to the effect that there cannot be any resumption at all of a lease hold land by the land owner except through the intervention of the revenue authority; but in the Tamil Nadu Act, even though there are provisions for such resumption through Revenue authorities by citing and proving legal grounds, yet there is no legal embargo to the effect that even if there is any voluntary abandonment or surrender of the lease hold land, yet the landlord should not take possession of it. 29. Wherefore, I am of the considered view that there is no embargo on the part of the plaintiffs in contending that they took back the land from the heirs of the deceased because they surrendered possession. 30. On the side of the defendant, the following decisions have been cited and certain excerpts from those decisions would run thus: (i) AIR 1966 Rajasthan 89 [Noratmal vs. Mohanlal] https://hcservices.ecourts.gov.in/hcservices/ " 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. ............................." (ii) 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." (iii) AIR 2001 KERALA 177 [A,Sulaikha Beevi vs. K.C.Mathew and others] "20. The agreement of the learned counsel for the appellant is that the lease between the parties is one created by Ext.A1 dated 01.01.1962. In other words, the contention is that the lease of 1120 M.E. as well as the lease created under Ext.B9 were surrendered and a fresh arrangement had been arrived at under Ext.A1. The argument of the learned counsel for the respondents is that since the leases are void, the earlier lease subsists and hence, there is no surrender. The respondents further contended that https://hcservices.ecourts.gov.in/hcservices/ there was no physical handing over of the property in favour of the appellant and hence it cannot be said that there was surrender of the property. In this connection, we refer to Section 111(e) and (f) of