IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30-11-2005 CORAM THE HON'BLE MR.JUSTICE S.ASHOK KUMAR SECOND APPEAL No: 851 OF 1994 Ramalingam ..Appellant(PetitionerS) Vs. Jayaraman ..Respondent(1stDefendant/Appellant) Second Appeal preferred against the judgment and decree dated 9.12.1993 made in A.S.No. 168 of 1990 on the file of the Sub Court, Virudhachalam reversing the judgment and decree dated 5.10.90 made in O.S.No: 598 of 1982 on the file of the Principal District Munsif, Virudhachalam. For appellants :: Mr.D.Shivakumaran For respondent :: Ms.P.T.Asha for M/s.Sarvabhauman Associates JUDGMENT The plaintiff who had succeeded before the trial court and aggrieved by the modification in respect of a portion of the relief by the lower appellate court, has preferred this Second Appeal. 2. The plaintiff has filed the suit for the relief of declaration, permanent injunction, alternatively for delivery of physical possession and for mesne profits. According to the plaintiff the Schedule mentioned A and B properties belonging to him. The first defendant and his nominees were only permitted to look after the properties and the plaintiff has been making a payment of Rs.200/= per year in return of their service. During February 1982, the plaintiff nominated one Ponnambalam in their place with the same terms. The first defendant aggrieved by his replacement threatened to take forcible possession of the properties and continue to cultivate the lands with the influence of someof the village people. The defendants 1 to 4 have no right or title to the said properties. They have no right to deny the plaintiff's title to the suit properties. Hence the suit for the reliefs as stated above. 3. The first defendant in his written statement denied the contents of the Plaint and contended that his father has been cultivating the A schedule property for the past 15 years as a lessee from one Kuppusamy Padayachi who is related to plaintiff's mother. After the death of Kuppusamy Padayachi, his father continued the cultivation and the plaintiff has been obtaining https://hcservices.ecourts.gov.in/hcservices/ Rs.100/= from him every year as he is the legal heir of the said Kuppusamy Padayachi. After the death of first defendant's father, only to remove the first defendant from the A schedule property, the suit has been filed which is against the Cultivating Tenants Protection Act. After the institution of the suit the second and fourth defendants had died and their legal heirs had not been brought on record and hence the suit is liable for non joinder of necessary parties as well. 4. The learned District Munsif, Vridhachalam, who tried the case, held that the first defendant has failed to prove that he was cultivating the land as a lessee and hence there is a cause of action for the plaintiff for filing the suit and the suit is not affected for non joinder of necessary parties since defendants 2 and 4 have been set exparte and the civil court has jurisdiction to entertain the suit. Thus the plaintiff has been cultivating the properties by engaging the first defendant's services and therefore the plaintiff is entitled for a declaration and physical possession and for permanent injunction in respect of items 1 to 4 of A Schedule properties and also B Schedule property. As regards mesne profits the subject matter has been relegated under Section 20, Rule 12 of the Code of Civil Procedure. Aggrieved by the same, the defendant preferred A.S.No:168 of 1990 before the Subordinate Judge, Virudhachalam. The learned Subordinate Judge, after analysing the evidence though confirmed the findings of the trial court as regards the title of the plaintiff in respect of items 1 to 4 of A schedule properties and B Schedule property, held that the first defendant has been cultivating the items 1 to 4 of the A schedule properties as a leaseholder and negatived the relief for delivery of physical possession. 5. At the time of admission, the following substantial Questions of law were framed by this Court:- (i) Whether the lower appellate court is correct in holding that the respondent is a cultivating tenant in the absence of any legal proof especially when his claim to record his name in the tenancy records has been turned down by the competent authority under Ex.P.9? ii) Is the lower appellate court right in observing that to prove the surrender of possession physical delivery is not always necessary as provided under Section 111(F) of the Transfer of Property Act? (iii) Is the appellate court correct in delivering the impugned judgment overlooking the fact that the respondent is estopped from denying the very right of the appellant to the suit property, particularly, with regard to the possession of the same? (iv) Is the respondent a cultivating tenant as per the adduced materials and evidence as contemplated by law?" https://hcservices.ecourts.gov.in/hcservices/ 6. After analysing the contradictions between the Plaint and the evidence of the plaintiff, the learned Subordinate Judge held that the defendant has been in possession of Items 1 to 4 of A Schedule properties by doing cultivation till February 1982. In his cross examination also the plaintiff admitted that the first defendant has been enjoying items 1 to 4 of A schedule properties on lease. Since the first defendant himself admitted that the plaintiff has the title to the A and B Schedule properties, the learned Subordinate Judge has rightly granted the relief of declaration and denied the relief in respect of delivery of physical possession. As there is assertion by one side and denial by the other side as to the period during which the first defendant has been cultivating the land as a lessee and there is a dispute with regard to the lease amount, the learned Subordinate Judge granted liberty to the plaintiff to initiate separate proceedings. 7. Since the plaintiff himself admitted the possession and enjoyment of the properties by first defendant by way of lease and the first defendant himself admitted the title of the plaintiff in respect of the properties, which findings of facts have been rendered after thorough analysation of the evidence by the court below all the questions of are answered against the appellant/plaintiff. 8. In the result, the Second Appeal is dismissed confirming the judgment and decree of the learned Subordinate Judge, Virudhchalam. No costs. gkv Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Subordinate Judge, Virudhachalam. 2.The District Munsif, Virudhachalam. 3.The Record Keeper, VR Section, High Court, Madras. 1 cc To Mr.D.Shivakumaran, Advocate, SR.46969. 1 cc To M/S.Sarvabhauman Associates, SR.47001 pre-delivery judgment in S.A.No. 851 of 1994 Dated: 30-11-2005 MM(CO) RVL 13.12.2005 https://hcservices.ecourts.gov.in/hcservices/