IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.03.2010 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE M.VENUGOPAL W.A.No.2313 of 2001 and W.A.M.P.No.18398 of 2001 K.Ganesan ..Appellant/2nd Respondent Vs. 1.Arulmighu Sethubava Swamy Trust, Mannargudi rep. By its Executive Officer, having its office at Mannargudi. ..1st Respondent/Petitioner 2.The District Revenue Officer, Nagai Q.M. District (now renamed as Nagapattinam District), Nagapattinam. ..2nd Respondent/1st Respondent Appeal against the order dated 19.09.2001 made in W.P.No.10676 of 1998. filed under Article 226 of constitution of India, praying to issue a writ of Certiorari, to call for the records connected with the proceedings of the first respondent in Na.Ka.No.5043/96/13, dated 15.11.1996 and quash the same. For appellant .. Mr.V.Kathiravan For respondents .. Mr.A.Arumugham, Spl. Govt. Pleader for R1 JUDGMENT (Judgment of the Court was delivered by M.VENUGOPAL, J.) The appellant has filed this writ appeal aggrieved against the order of the learned single Judge dated 10.09.2001 in allowing the writ petition No.10676 of 198 filed by the First Respondent-Trust. 2. According to the learned counsel for the Appellant/ Second Respondent, the learned Single Judge has erred in overruling the objection of the Appellant that the First Respondent/Petitioner Trust has not challenged the proceedings of the original Authority and Appellate Authority and therefore, the writ petition is not per se maintainable in law. 3. The second contention of the Appellant/Second respondent is that the Recording Officer, the Appellate Authority, Revisional Authority have held that he is a tenant of the lands of the First https://hcservices.ecourts.gov.in/hcservices/ Respondent/Petitioner Trust and further the decree of the Civil Court in O.S.No.502 of 1995 dated 22.12.1995 passed by the learned District Munsif, Mannargudi is in his favour. 4. That apart, the learned counsel for the Appellant/Second Respondent submits that the factual aspect whether the Appellant/Second Respondent is a Cultivating Tenant or not cannot be gone into in writ proceedings. 5. Added further, the learned counsel for the Appellant strenuously contends that when the First Respondent/Petitioner Trust has filed an appeal before the Appellate Authority, three years later, from the date of passing of the order of the Recording Officer dated 14.9.1992 without condone delay application, the same is hit by limitation and that the observations of the learned Single Judge that the finding recorded by the authorities suffer from perversity etc are not correct. 6. Lastly, it is submitted on behalf of the Appellant that the learned Single Judge has come to the conclusion that the Appellant cannot be a tenant from his childhood and therefore, prays for allowing the writ appeal. 7. The First Respondent/Trust has filed the writ petition stating that it is a Public Trust and the appellant claims he is a cultivating tenant in respect of 6.16 acres of wet lands owned by it in Keezhasathamangalam-Karnavoor Village, Mannargudi Taluk. The Second Respondent/Revisional Authority (pertaining to the matter of Record of Tenancy Rights), has passed orders in Ref.No.Na.Ka.No.5043/96/13 dated 15.11.1996 in recognising the claim of the Appellant. Aggrieved against the same, the first respondent/Trust has filed the writ petition. 8. It is the case of the First respondent/Trust that originally the lands in issue were cultivated by one M.Panneerselvam, S/o.Murugaiah Mudaliar whose name was recorded as a tenant of the lands. He was paying rent to the First respondent/Trust directly or through agents. He has committed default and therefore the arrears of lands were accumulated. The first respondent/Trust projected an application before the Revenue Court, Mannargudi in P.T. No.60/95 seeking the relief of eviction of Panneerselvam from the lands since he had committed arrears of rent for 13 years and on 11.04.1995, an interim order was passed by the Revenue Court with a direction to the tenant to pay the arrears or to face eviction. The said order was not complied with. Consequently, an order of eviction was passed on 07.05.1995. 9.Subsequent to the order of eviction being passed against the tenant, the Enforcement Revenue Inspector of Revenue Court delivered the possession of lands to the first respondent-Trust on 05.06.1995 as per the orders of Revenue Court in E.P.No.58 of 1995 dated 30.05.1995. The first respondent-Trust also took physical possession of the said lands. 10.While this being the factual position, the First Respondent/Trust was restrained by means of an ad interim injunction https://hcservices.ecourts.gov.in/hcservices/ in I.A.No.219 of 1995 in O.S.No.502 of 1995 filed by the appellant, praying the Court to refrain the first respondent-Trust from interfering with his alleged possession of the lands. 11.The first respondent-Trust came to know about the Exparte order dated 14.09.1992 passed by the Authorised Officer of Record of Tenancy Rights, Mannargudi and later filed an appeal before the Revenue Court, Mannargudi in A.P.No.2 of 1995 and the appeal came to be dismissed on 18.10.1995. Aggrieved against the order passed in the said appeal, a Revision was filed by the First Respondent/Trust before the second respondent herein and the same was again dismissed on 15.11.1996. 12.At this stage, it is useful to refer to the exparte order dated 14.09.1992 passed in Form V Application No.17/1992 by the Tahsildar, Mannargudi (Record of Tenancy Rights Officer) wherein it is stated that on 14.09.1992, the parties were issued with a notice to appear and on that date, the appellant was present and he was examined. Even though the Administrative Officer of the Trust was in receipt of notice on 11.09.1992, he had not chosen to appear either in person or through counsel. Therefore, the Village Administrative Officer of Karnavoor Village was examined, who had stated in the enquiry that the appellant was in cultivation of the land and therefore, the Officer had come to the resultant conclusion that the Appellant's name was ordered to be registered as right person in the Tenancy Register, by removing the name of one Panneerselvam, whose name was already on record. 13.Be that as it may, on 18.10.1995 in A.S.No. 2 of 1995, an appeal was preferred by the First Respondent/Trust. In the said appeal, the Appellant was shown as respondent, and the Special Deputy Collector /Revenue Court, Mannargudi, had come to the conclusion that because of payment of arrears, Panneerselvam had not appeared before the Court notwithstanding the fact he was in receipt of notice on 09.03.1995 and also resultantly came to the conclusion that the possession in respect of petition lands taken on 05.06.1995 from Pannerselvam who was not in enjoyment of land was not in accordance with law and also referred to the order passed in I.A.No.219 of 1995 in O.S.No.502 of 1995 wherein an order of interim injunction was granted and also notice was ordered to be issued and by taking into consideration of the facts and circumstances, he was of the view that the appellant was contributing his physical labour in respect of the petition mentioned lands as per evidence of the Administrative Officer, of the temple and that of Village Administrative Officer. Dissatisfied with the dismissal of the Appeal in A.S.No.2 of 1995 dated 18.10.1995, the First Respondent/Trust preferred a Revision before the District Revenue Officer Nagapattinam/Revisional Authority who among other things opined that the appellant's name was entered as Cultivating Tenant in respect of the suit lands and ultimately dismissed the writ petition. The Appellant filed O.S.No.502 of 1995 praying for a relief of injunction against the First Respondent/Trust and a decree was passed on 22.12.1995 granting the relief of permanent injunction. 14.The main contention projected by the appellant before us is that the learned single Judge while allowing the writ petition was https://hcservices.ecourts.gov.in/hcservices/ not correct in taking the view that the order of the First and Appellate authorities had got merged with the orders passed by the Second Respondent and in fact, the learned single Judge ought to have sustained preliminary objection of the appellant that the writ petition filed by the First Respondent-Trust is not maintainable in the eye of law because of the fact that the writ petitioner has only challenged the order passed in the revision and not challenged the earlier orders. 15.In regard to this contention, at the outset, it is to be stated that the order dated 15.11.1996 passed by the Revisional Authority has merged with the prior orders passed by the Tahsildar Mannargudi and the Appellate Authority and therefore when the first respondent-Trust has challenged the revisional orders, then it cannot be said that the said order, when it is challenged, is not maintainable in the eye of law. 16. As a matter of fact, the theory of merger in regard to the revisional order being challenged can aptly applies to the present case on hand and therefore, the contra contention put forward on the side of the appellant is untenable and negatived. Also as far as the present case is concerned, even though the tenancy proceedings of the Tahsildar, Mannargudi is an exparte proceedings, yet it is the duty of the concerned authority and also that of the Appellate authority to pass orders on merits, after taking into account of the facts and circumstances of the present case. 17.Indeed, the Record of Tenancy Tahsildar had recorded a finding that for the period between 02.12.1974 and 27.02.1987, receipts were produced by the Appellant and these receipts stood in the name of one Panneerselvam. It could not be assumed or presumed by any means that Pannerselvam measured paddy through Appellant or his father Krishnamoorthy so as to claim a Tenancy Right under the Act. Actually speaking, a person must contribute his physical labour so that he could take the benefit of his right to claim himself as a tenant. Added further, it was not the case of the Appellant that he was either a direct tenant or a subtenant. More over, First Respondent/Public Trust had validly obtained an order of eviction against Panneerselvam and the said order of eviction was also put into execution. The First Respondent/Trust accordingly had taken possession and delivery of the land. While that being so, the Appellate Authority had proceeded on the wrong assumption that if the earlier tenant Panneerselvam was in possession of the land, then he would have contested the eviction proceedings and since he was not in possession, he had not entered appearance before the Revenue Court. Such a reason ascribed by the Appellate Authority could not stand a moment's scrutiny in the eye of law because of the simple fact that when the First Respondent/Trust had taken possession of the land to make a mention otherwise that Panneerslevam was in possession of the said land was to suffer from chimerical deluge, in our considered opinion. 18.The other aspect of the matter is that there was no evidence on record to show that there was a Tenancy relationship between the Appellant and the First Respondent/Trust. In this connection, we have to emphasise that when the appellant pleads that https://hcservices.ecourts.gov.in/hcservices/ he was a tenant then it is for him to establish to the subjective satisfaction of this Court that there was tenancy relationship between the First Respondent/Trust. Significantly, such a proof was conspicuously absent in the present case. 19.The learned single Judge in an elaborate order had traversed upon several minute details of the matter and he had come to the right conclusion in allowing the writ petition, thereby quashing the impugned order in Na.Ka.No.5043/96/I3 dated 15.11.1996. Also it transpires that the Appellant had filed O.S.No.502 of 1995 on the file of District Munsif, Mannargudi before ever the first respondent-Trust could initiate appropriate action and this had been done by him with a view to preempt the Trust in proceeding with the matter in accordance with law. It could not be gainsaid that the First Respondent/Trust took possession of lands and the same could be auctioned only in a proper and legal manner and before that, the appellant had rushed to file a Civil Suit before the learned District Munsif, Mannargudi. 20. It is to be pointed out that in record of tenancy matters, the competent authority is not to indulge in suppositions or surmises or conjectures. In the present case before us, on going through the different orders passed by the authorities, it is categorically clear that they had indulged in assumptions or presumptions and came to the wrong conclusion without any iota of material in regard to the issue of tenancy between the parties that the Appellant was a tenant to which we are not in agreement, in our considered opinion. 21.Though the appellant claims that he was a tenant considering the fact that he was only 24 years or so on the date of application, certainly he could not be a tenant with Panneerselvam for nearly 17 years and this proved the hollowness of the claim of the Appellant but the same was not adverted to by the appropriate authorities. 22.In the light of detailed discussion and taking note of the over all facts and circumstances of the case in an integral fashion, we are of the considered view that the learned single Judge had passed a well merited order in W.P.No.10676 of 1998 and we do not find any material error or patent illegality to interfere with the said order and consequently, the writ appeal fails. 23.In the result, the writ appeal is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar mmi https://hcservices.ecourts.gov.in/hcservices/ To The District Revenue Officer, Nagai Q.M. District (now renamed as Nagapattinam District), Nagapattinam. 1 cc to Mr.Veera Kathiravan, Advocate, Sr.No.16336 1 cc to Government Pleader, Sr.No.15872 W.A.No.2313 of 2001 JSV {CO} TP/25.3.2010. https://hcservices.ecourts.gov.in/hcservices/