IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.04.2010 CORAM: THE HON'BLE MRS.JUSTICE R.BANUMATHI AND THE HON'BLE MR.JUSTICE M.VENUGOPAL W.A.No.601 of 2002 and W.A.M.P.No.1236 of 2002 Duraisamy Mooppan .... Appellant Vs. 1.Ramasamy Reddiar 2.Record Officer/Special Tahsildar (Tenancy Record), Thuraiyur Taluk Trichy District. 3.Special Deputy Collector (Revenue Court), Lalgudi Trichy District 4.Additional Collector of Tiruchirappalli Tiruchirappali Tiruchirappalli District. ... Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of this Court dated 20.9.2001 passed by the single Judge in W.P.No.20562 of 1994. W.P.NO.20562/94:Petition Presented under Article 226 of the Constitution of India to issue a Writ of Certiorari, calling for the records in connection with the order T.A.6/94 dated 12.11.1994 on the file of the fourth respondent passed iln the Revision Petition filed by the first Respondent setting aside the order of Appellate Authoority and quash the said order TA.No.6/94 dated 12.11.1994 of the fouuth Respondent. For Appellant : Mr.R.Singaravelan and Mr.V.S.Jagadeesan For Respondents 2 to 4: Mr.Arumugam,Spl.Govt.Pleader https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT R.BANUMATHI,J. This Writ Appeal arises out of order dated 20.9.2001 of the learned single Judge in W.P.No.20562 of 1994 quashing the order of revisional authority- 4th Respondent and holding that the Appellant is not proved to be the tenant of Survey No.6/1 - 0.33 cents in Pachaiperumal Patty village. The Appellant, who was the 1st Respondent in the Writ Petition, has come forward with this Appeal. 2. The brief facts, which led to the filing of Writ Petition, are that the 1st Respondent is the owner of agricultural land in Survey No.6/1 – 0.33 cents in Pachaiperumal Patty village. The Appellant, who was cultivating the land in S.No.9/5 – 66 cents of the same village filed application before the 2nd Respondent -Record Officer and Special Tahsildar, Thuraiyur Taluk for registering him as a tenant under the Tamil Nadu Agricultural Land Record of Tenancy Right Act, 1969 to register him as a tenant in respect of Survey No.6./1 – 0.33 Cents. In T.A.No.6 of 1994 filed by the Appellant, 2nd Respondent – Record Officer has held that the Appellant was a tenant in respect of Survey No.9/5 – Ac.0.66 cents and that the land in Survey No.6/1 is located adjacent to the said property and Survey No.9/5 is irrigated from the well and pump set from the subject land i.e., Survey No.6/1 ordered by an order dated 28.8.1992 recording the Appellant as the tenant. Aggrieved by the order of the 2nd Respondent – Record Officer, the 1st Respondent preferred an appeal before the 3rd Respondent - Special Deputy Collector, Revenue Court, Lalgudi. Upon perusal of kist receipt dated 4.6.1988 and U.D.R.patta produced by 1st Respondent, Respondent No.3 – Special Deputy Collector has set aside the orders of the Record Officer and allowed Appeal. The order of Appellate Authority was challenged by the Appellant before the 4th Respondent -Revisional Authority. By an order dated 12.11.1994, in T.R.No.6/92, 4th Respondent – Revisional Authority has held that sufficient opportunity was given to the 1st Respondent by the Record Officer and 1st Respondent has not utilised the opportunity to substantiate his defence and he is estopped from denying right of the Appellant as a tenant over the disputed lands, set aside the order passed by the Appellate Authority – Special Deputy Collector and allowed the revision petition. The order of Revisional authority was challenged before the learned single Judge in W.P.No.20562 of 1994. 3. Learned single Judge held that before the 2nd Respondent- Record Officer, Appellant had not produced any document to show that he is the cultivating tenant of Survey No.6/1 and the Appellant had adduced only oral evidence and learned single Judge held that the finding of 2nd Respondent that the Appellant is the cultivating tenant is not based on any evidence. The learned single Judge also pointed out that before the 3rd Respondent - Appellate Authority, the 1st Respondent has produced the kist receipts and patta to show that he is the owner of Survey No.6/1 and that he is in enjoyment of the https://hcservices.ecourts.gov.in/hcservices/ property. Learned single Judge allowed the writ petition and thereby quashed the order of the revisional authority - 4th Respondent, which is the subject matter of challenge in this appeal. 4. Assailing the order of learned single Judge, learned counsel for Appellant submitted that the learned single Judge erred in saying that the Appellant had failed to establish that he is the tenant. It was further submitted that the learned single Judge was not right in disturbing the well considered finding of the two authorities viz., the 2nd Respondent – Record Officer and the 4th Respondent -Revisional Authority. We have heard the Additional Government Pleader appearing for the authorities. 5. In the application in T.R.No.6 of 1994 filed before the Record Officer, the Appellant claimed that he is the cultivating tenant in respect of Ac.0.33 cents of land in S.No.6/1 of Pachaiperumal Patty village. The said application was resisted by the 1st Respondent by filing counter statement. As pointed out by learned single Judge, no documentary evidence was produced before the 2nd Respondent – Record Officer to show that the Appellant is the cultivating tenant. The Appellant has neither produced any documentary evidence such as adangal extract or the register showing payment of rent to the 1st Respondent land owner nor examined the persons like Village Administrative Officer, who is conversant with the land in question to substantiate his claim. As pointed out by the learned single Judge, purely, based on the oral evidence of the Appellant, the Record Officer has recorded the finding that the Appellant is the cultivating tenant. 6. Earlier, Appellant filed T.R.No.8 of 1988 in which he was registered as cultivating tenant in respect of Survey No.9/5 by the order dated 3.4.1989 of Record Officer - 2nd Respondent. The 1st Respondent/landlord filed O.S.No.363 of 1988 for permanent injunction in respect of both survey Nos.9/5 and 6/1. After disposal of T.R.No.8 of 1988 the Appellant filed the petition T.R.No.6 of 1990 on 6.3.1990 to register him as a cultivating tenant for S.No.6/1 – 0.33 Acres on the ground that it was omitted to be included in the earlier application T.R.No.8 of 1988. 7. The averments in the petition read as under: "kDjhuh; Fj;jiff;F rhFgo bra;J tUk; epyj;jpd; tp!;jPuzk; bjhpahjjhy; nkw;go 0/66 brz;l; epyj;jpw;F kl;Lnk Fj;jifjhuh; vd gjpt[ bra;a rK:fk; nfhh;oy; Fg 8-88y; kDjhf;fy; bra;J 3/4/89k; njjp kDjhuuhfpa ehd; rh;nt vz;. 9-5Ys;s Vf; 0/66 brz;l; epyj;jpw;F Fj;jifjhuh; vd;W gjpt[ bra;ag;gl;Ls;sJ/ vjph;kDjhuh; Jiwa{h; o/K/nfhh;l;oy; m/t/vz;/363-88 vd;w tHf;F bjhlh;e;j gpd;dnu kDtpy;fz;l 0/33 brd;l; epy;j;jpw;Fk; nrh;j;J Fj;jifjhuh; vd gjpt[ bra;a https://hcservices.ecourts.gov.in/hcservices/ Fg 8-88y; kDjhf;fy; bra;jnghJ tpLgl;Ls;sJ bjhpatUfpwJ. Mfnt ,k;kD jhf;fy; bra;ag;gLfpwJ.////////////////////** It is thus clear that the Appellant filed petition seeking to register him as a cultivating tenant two years after the filing of the suit - O.S.No.363 of 1988 and about one year after the passing of the order in T.R.No.8 of 1988. 8. Except stating that he is irrigating his lands in S.No.9/5 from the well in S.No.6/1, the Appellant has not produced any document to show that he is cultivating S.No.6/1 by contributing his own physical labour. In the counter filed by the Respondent, the Respondent has categorically denied the case of Appellant that he is the cultivating tenant in S.No.6/1. During enquiry before the Record Officer - 2nd Respondent, the Appellant was elaborately cross examined and a suggestion was put to him denying his tenancy in S.No.6/1. 9. Allowing the Application filed by the Appellant and ordering registration of his name as the cultivating tenant, the Record Officer/2nd Respondent has observed that inspite of opportunity the respondent/landlord has not adduced any evidence. The observation of the 2nd Respondent that the landlord has not adduced any evidence is erroneous. We have perused the records produced by the Special Government Pleader. By perusal of the order sheet maintained by the 2nd Respondent, it is seen that on 22.7.1992, the Appellant was examined. Thereafter the matter was adjourned to 27.7.1992, 3.8.1992 and 10.8.1992 and on those three hearing dates, both the Appellant and the 1st Respondent were present. Again, the matter was adjourned to 17.8.1992, on which date the 1st Respondent appeared for enquiry whereas the Appellant did not appear for enquiry and the matter was adjourned to 21.8.1992. Again, on 21.8.1992, the 1st Respondent/landlord appeared for enquiry whereas the Appellant did not appear for enquiry and thereafter the matter was adjourned to 24.8.1992 for passing order. Inspite of presence of 1st Respondent on number of hearing dates, his evidence was not recorded. As pointed out earlier, on 17.8.1992 and on 21.8.1992 only the Appellant did not appear for enquiry whereas the 1st Respondent was present. While so, the Record Officer - 2nd Respondent was not right in saying that in spite of opportunity, the 1st Respondent has not adduced evidence. 10. While setting aside the order of the Appellate authority, the 4th Respondent – revisional authority observed that the Record Officer has given four adjournments and the 1st Respondent has not produced any documentary or oral evidence during the given time. The revisional authority further observed that "the 1st Respondent had enough opportunity before Record Officer and he had not utilised the opportunity to substantiate his defence" and 1st Respondent is estopped from denying the right of the revision petitioner as a https://hcservices.ecourts.gov.in/hcservices/ tenant over the disputed lands. While observing that inspite of opportunity the 1st Respondent has not adduced evidence, the revision authority does not appear to have looked into the order sheet maintained by the Record Officer. The Revisional authority also does not appear to have kept in view filing of Civil suit by the 1st Respondent. In the order sheet maintained by the 2nd Respondent-Record Officer there is nothing to indicate that the 1st Respondent was not inclined to adduce any evidence. On the other hand, only Appellant did not appear for the enquiry on 17.8.1992 and 21.8.1992. Having elaborately cross examined the Appellant and also pursuing the civil suit it would have been quite improbable for the 1st Respondent to remain silent without adducing any evidence. 11. We have gone through the order of the 2nd Respondent in T.A.No.6 of 1990. The 2nd Respondent has pointed out that in Survey No.9/5 – 66 cents, both wet and dry crops were raised and for survey No.9/5, the irrigation source is the well in Survey No.6/1 and on those reasonings, drew inference that the Appellant is the tenant in respect of S.No.6/1 also. In our considered view, the 2nd Respondent was not right in drawing such inference of tenancy in respect of S.No.6/1, merely because the Appellant was the tenant in respect of Survey No.9/5. 12. The expression "cultivating tenant" has been defined in Section 2(aa) of Tamilnadu Cultivating Tenants Protection Act, which reads as under: "Cultivating tenant: - i) means a person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied; and ii) includes - a) any such person who continues in possession of the land after the determination of the tenancy agreement: (b) the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land: (c) a sub-tenant if he contributes his own physical labour or that of any member of is family in the cultivation of such land; or (d) any such sub-tenant who continues in possession of the land notwithstanding that the person who subject the land to https://hcservices.ecourts.gov.in/hcservices/ such sub-tenant cases to have the right to possession of such land; but (ii) does not include a mere intermediary of his heir." 13. To hold that a person is a cultivating tenant in respect of a land, it means a person, who has contributed his own physical labour or that of any member of his family in the cultivation of any land belonging to another. Even as per the findings of 2nd Respondent -Record Officer, the Appellant has been irrigating his lands in Survey No.9/5 from the well in Survey No.6/1. Absolutely there is no document to show that the Appellant or members of his family has contributed physical labour to claim that they are cultivating tenants. As observed by the learned single Judge, the finding of 2nd Respondent – Record Officer was based on only oral evidence and is not substantiated by any documentary evidence. 14. In 94 (1981) Law weekly 66 (GOVINDARAJA VANNIAR V. THIRUSANGUVANNIAR), after considering the scope of definition in Section 2(aa) of Tamilnadu Cultivating Tenants Protection Act as well as Tamilnadu Record of Tenancy Rights Act, learned single Judge has held that in the absence of evidence as to contribution of physical labour of the tenant or members of his family and as to carrying on basic operations like protecting the trees, pruning them etc., the person/persons cannot be claimed as a cultivating tenant. 15. Admittedly the Appellant is not cultivating S.No.6/1. Even according to the Appellant, he is irrigating his lands in S.No.9/5 from the well in S.No.6/1 without raising any crops in S.No.6/1 and without contributing any physical labour for raising the crops the Appellant cannot claim to be the cultivating tenant in S.No.6/1. The appellant failed to establish that he is a cultivating tenant in respect of the land in question (S.No.6/1). 16. Before the Appellate authority, the 2nd Respondent has produced kist receipts and also patta in respect of Survey No.6/1. The Appellate Authority – Respondent No.3 pointed out that absolutely no documentary evidence was produced by the tenant and that Survey No.6/1 has got no connectivity with Survey No.9/5 for which the Appellant was registered as a cultivating tenant. Based upon documents – kist receipts and patta, the Appellate authority has rightly reversed the finding of the Record Officer. 17. Referring to the order of the Appellate Authority and the kist receipt and patta produced before the Appellate Authority, the learned single Judge rightly set aside the order of 4th Respondent – Revisional authority. We do not find any reason warranting interference with the order of learned single Judge. https://hcservices.ecourts.gov.in/hcservices/ 18. Writ Appeal is bound to fail and accordingly the Writ Appeal is dismissed. However, there is no order as to costs. Consequently, the connected W.A.M.P. is also dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar usk Copy to: 1. The Record Officer/Special Tahsildar (Tenancy Record), Thuraiyur Taluk Trichy District. 2. The Special Deputy Collector (Revenue Court), Lalgudi Trichy District 3.The Additional Collector of Tiruchirappalli Tiruchirappali Tiruchirappalli District. 1 cc To Government Plesader SR.22168 W.A.No.601 of 2002 jrg(co) pmk.12.4.2010. https://hcservices.ecourts.gov.in/hcservices/