IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.2.2008 C O R A M The Honourable Mr.Justice M.JAICHANDREN S.A.No.1531 of 1999 1. Rajamanikkam 2. Subramaniam 3. Palani 4. Paramasivam .. Appellants Versus 1. Abdul Rashid (died) represented by his power agent wife Mahathipa Beevi Chidambaranathan Muthaliar Street Kuttalam, Nagapattinam District 2. Murugesan s/o. Govindasamy Kadaikan Vinayaka Nallur Sirkali Taluk Nagapattinam District 3. Mahadiya Beevi 4. Noorjahan Beevi 5. Jeenat Beevi 6. Abdul Kalam Azad 7. Sadiq Basha 8. Samsad Bhanu 9. Mohammed Sadiq 10.Johur Rahman (Respondents 3 to 10 are brought on record as Legal representatives of the deceased 1st respondent vide order of this Court, dated 14.6.2006, made in C.M.P.Nos.601 to 603 of 2004) .. Respondents PRAYER: This second appeal has been filed against the judgment and decree of the Additional Sub Court, Mayiladuthurai, dated 21.1.1999 in A.S.No.62 of 1998, confirming the judgment and decree of the District Munsif Court, Sirkali, dated 7.11.1996, in O.S.No.404 of 1995. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.S.Sounthar For Respondents : Mr.R.Mahalingam J U D G M E N T This second appeal has been preferred against the judgment and decree of the Additional Sub Court, Mayiladuthurai, dated 21.1.1999, made in A.S.No.62 of 1998, confirming the judgment and decree of the District Munsif Court, Sirkali, dated 7.11.1996, made in O.S.No.404 of 1995. 2. For the sake of convenience, the parties are referred to as they have been arrayed in the original suit. The plaintiffs, who are the respondents in the present second appeal, had filed a suit in O.S.No.404 of 1995, before the District Munsif Court, Sirkali, praying for the relief of permanent injunction to restrain the defendants and their men from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff and the alternative relief of recovery of possession and for mesne profits stating that the suit property is a land having an extent of 0.56 cents in R.S.No.259/1,(Now R.S.No.259-1-B), in Koothiyampettai Village, Sirkali Taluk. The suit property had been purchased by the first plaintiff by a sale deed, dated 8.9.1971, and since then it has been in his peaceful possession and enjoyment. The patta, chitta and the adangal stand in the first plaintiff's name bearing patta No.42. 3. The kist for the suit property is being paid in the name of the first plaintiff. The said property is in the possession of the first plaintiff under pannai cultivation. The second plaintiff has been helping the first plaintiff in the cultivation of the land. The first defendant is the brother of Pavadai and Murugaiyan and they have sold the suit property in favour of the first plaintiff and since then the first defendant has been holding a grudge against the first plaintiff. Thereafter, the first plaintiff has been making attempts to encroach upon the suit property. Further, the first defendant has been causing trouble to the second plaintiff, who has been managing the suit properties. Therefore, the plaintiffs have lodged complaints before the police. 4. Defendants 2 to 4 are the sons of the first defendant. The defendants have been compelling the first plaintiff to give the suit property to them to cultivate the same, along with their other lands situated adjacent to it. Therefore, https://hcservices.ecourts.gov.in/hcservices/ the first defendant had filed a suit in O.S.No.75 of 1992, on the file of the District Munsif Court, Sirkali, against the brother of the first defendant and the second plaintiff praying for the relief of permanent injunction stating that he is a cultivating tenant of the suit property. The said suit was pending before the District Munsif Court, Sirkali. Even though the defendants had no right whatsoever in the suit property, they were threatening to take forcible possession of the suit property and to carry on cultivation in the said property. In such circumstances, the plaintiffs had filed the suit praying for the reliefs as stated therein. 5. In the written statement filed by the first defendant, which was adopted by the defendants 2 to 4, it has been stated that the defendants' father had purchased 0.52 cents of land in the suit survey Number by a sale deed, dated 22.7.1939. He had also got 61 cents in the same survey Number as a legal heir. After his death, his sons, namely, pavadai, Natesan, Murugesan and the first defendant had divided the property into four shares and they were in separate enjoyment of the same. Later Murugesan had sold his share of the property to the first plaintiff. Similarly, Thanam, wife of Natesan, had sold her share to the first plaintiff. Since the first plaintiff had been travelling to foreign countries pursuing his business activities, he had given his property to the first defendant for cultivation by an oral lease. As such, the first defendant has been cultivating the said land, along with his 28 cents of land situated adjacent to the suit property by putting up a fence treating the property as one unit. 6. Based on the averments made in the plaint as well as in the written statement, the trial Court had framed the following issues for consideration:- "1. Whether the plaintiffs are in possession and enjoyment of the suit property? Whether the plaintiffs are entitled to get the relief of permanent injunction? 2. Whether the first defendant has been cultivating the suit property as a tenant? 3. What other reliefs the plaintiffs are entitled to?" 7. The additional issue was framed by the trial Court, which is as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Whether the plaintiffs are entitled to recovery of possession of the suit property as an alternative relief?" 8. P.W.1 to P.W.3 had been examined as witnesses and Exhibits A.1 to A.4 had been marked in the suit, in support of the contentions raised by the plaintiffs. On behalf of the defendants, D.W.1 and D.W.2 had been examined as witnesses and five documents had been marked as Exhibits B.1 to B.5. 9. Based on the contentions raised on behalf of the parties concerned and in view of the evidence available, the trial Court had decreed the suit granting the relief of permanent injunction restraining the defendants, their men and agents from in any way interfering with the plaintiffs' peaceful possession and enjoyment of the suit property. 10. While granting the relief to the plaintiffs, the trial Court had found that though the first defendant had claimed that he has been in enjoyment of the suit property as a tenant for nearly 30 years, there was no proof shown on behalf of the first defendant to substantiate his claim that he has been paying the lease amount to the plaintiffs. It was contended on behalf of the first defendant that it was an oral lease by which the first defendant has been in cultivation of the suit property. However, during the cross-examination he has admitted that he is the owner of the suit property and that he need not pay any lease amount to any person. 11. In view of the contradictory claims and due to the fact that the first defendant had not been in a position to prove that he has been in possession and enjoyment of the suit property for nearly 30 years, the trial Court had held that the claims made on behalf of the first defendant had not been proved. The first defendant had also admitted that his name has not been registered as a cultivating tenant in the concerned records. Since the first defendant could not prove that he was a cultivating tenant, registered in accordance with the provisions of The Tamil Nadu Cultivating Tenants Act, 1955, it was held that the objections raised on behalf of the first defendant that the trial Court does not have the jurisdiction to try the suit cannot be accepted. 12. The trial Court had also found that the second plaintiff has been cultivating the suit property on behalf of the first plaintiff, based on the oral evidence of the Village Administrative Officer, Koothiyampettai Village, Sirkali Taluk and in view of the adangal, marked as Exhibits A.3, which shows that the cultivation of the suit property was being done in the name of first plaintiff. The trial Court had further https://hcservices.ecourts.gov.in/hcservices/ held that the claims of the plaintiffs have been sufficiently proved by both the oral and documentary evidence available before the Court. 13. Aggrieved by the judgement and decree of the trial Court, dated 7.11.1996, made in O.S.No.404 of 1995, the defendants had filed an appeal in A.S.No.62 of 1998, on the file of the Additional Sub Court, Mayiladuthurai. 14. Considering the claims made on behalf of the plaintiffs as well as the defendants and in view of the evidence available, the first appellate Court had framed the following points for consideration:- "1.Whether the plaintiffs are entitled to get the relief of permanent injunction as prayed for in the plaint? 2.Whether the plaintiffs have the right to recovery of possession of the suit property from the defendants, as prayed for in the plaint? 3.What other reliefs the plaintiffs are entitled to?" 15. The first appellate Court had found that there was no dispute with regard to the fact that the first plaintiff is the owner of the suit property. It was also found that since the plaintiffs had not been in possession of the suit property on the date of filing of the suit, they had prayed for the relief of recovery of possession by amending the plaint. Since both the plaintiffs are not living in Koothiyampettai Village, Sirkali Taluk, where the suit property is situated, the lower appellate Court had not accepted the contention of the plaintiffs that they were in possession of the suit property at the time of the filing of the suit. On the other hand, from the evidence available, the first appellate Court had found that the suit property has been in the possession and enjoyment of the defendants prior to the filing of the suit. Therefore, with regard to the first issue, the lower appellate Court had held that the plaintiffs were not entitled to the relief of permanent injunction as originally prayed for in the suit. 16. With regard to the second issue, the lower appellate Court had held that the first defendant had not proved his claim that he was cultivating the suit property as a cultivating tenant. However, since the suit property was found to be in the possession of the first defendant in spite of the fact that the first plaintiff is the owner of the said property, the occupation of the said property by the first https://hcservices.ecourts.gov.in/hcservices/ defendant can be construed only as an illegal encroachment. Since the defendants have not been in a position to prove that they are cultivating the suit land either as a registered cultivating tenant or by an oral agreement between the first plaintiff and the first defendant, the lower appellate Court had not accepted such a contention raised on behalf of the first defendant. The first defendant had not been in a position to show that his name has been registered in the tenancy records as a cultivating tenant in accordance with the relevant provisions of law. 17. Since the first defendant had not attempted to register his name as a cultivating tenant in spite of his claim that he has been cultivating the suit land for more than 20 years, pursuant to an oral agreement, the contention raised on behalf of the first defendant that he has been cultivating the suit land as a cultivating tenant cannot be accepted. Further, it was also noted that such a claim has not been made in the written statement filed on behalf of the defendants. The first defendant had also not shown any evidence to prove that he has been paying the lease amount to the plaintiffs. The oral evidence of D.W.2 examined on behalf of the defendants was found to be insufficient to prove the claim of the first defendant that he was a cultivating tenant in the suit property. Even though the first defendant had initially claimed that he was a cultivating tenant in the suit property, later he had changed his stance to claim that he was in possession of the suit property as its owner. Therefore, the first appellate Court had found that the plaintiffs were entitled to the relief of recovery of possession of the suit property from the defendants. 18. Aggrieved by the judgment and decree of the first appellate Court, dated 21.1.1999, made in A.S.No.62 of 1998, the present second appeal has been filed. 19. The second appeal had been admitted on the following substantial questions of law: "1. Whether the Courts below are correct in negativing the appellants plea of cultivating tenancy on the ground that his name is not recorded in RTR records? Whether recording the name in RTR records is sine que non for claiming cultivating tenancy? 2. Whether the lower appellate Court as a final Court of facts erred in not adverting to the oral evidences of DW2 as mandated by Order 41 Rule 31 of C.P.C.? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the non consideration of oral evidences of DW2, PW2 and PW3 especially when oral tenancy arrangement is pleaded vitiates the judgment of lower appellate Court?" 20. The learned counsel appearing for the appellants had contended that the judgment and decree of the Courts below were against law and the weight of the evidence and the probabilities of the case. The lower appellate Court having held that the possession of the suit property was with the defendants, it ought to have held that they are entitled to the protection contemplated under the provisions of The Tamil Nadu Cultivating Tenants Act, 1955. 21. It was also contended that the Courts below had erred in not taking into consideration the report of the Advocate Commissioner. It had clearly shown that the suit property and the other properties of the first defendant were being enjoyed by him and that he was cultivating the same. It was also submitted that both the trial Court as well as the first appellate Court had not sufficiently appreciated the evidence recorded in the criminal proceedings in C.C.No.7 of 1992, in its proper perspective. 22. The learned counsel appearing on behalf of the respondents had submitted that the Courts below had rightly appreciated the evidence on record and had come to the correct conclusion. Since the lower appellate Court had found that the possession of the suit property was in the illegal possession of the defendants as encroachers, it was decreed that the plaintiffs were entitled to the relief of recovery of possession of the suit property from the defendants. 23. In view of the rival contentions and on analysing the judgment and decree of the Courts below, this Court is of the considered view that the lower appellate Court was right in granting the relief of recovery of possession in favour of the plaintiffs, since the first defendant could not show sufficient proof to substantiate his contentions claiming that he was a cultivating tenant in the suit property. It was also found that the defendants were in illegal occupation of the suit property and that the suit property belonged to the first plaintiff as its owner. In such circumstances, the appellants in the second appeal, who were the defendants in the suit, have not shown sufficient cause or reason for this Court to interfere with the findings of the Courts below. On the other hand, the plaintiffs have substantiated their claims, both by oral as well as by documentary evidence. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ substantial questions of law arising for consideration are answered in favour of the respondents in the second appeal and the second appeal stands dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To 1. The Additional Subordinate Judge, Mayiladuthurai 2. The District Munsif, Sirkali. 3. The Section Officer, V.R.Section, High Court, Madras. One cc to Mr.r.Mahalingam, advocate SR.No.8274 S.A.No.1531 of 1999 AKR[CO] SKY/28/2 https://hcservices.ecourts.gov.in/hcservices/