IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 15.7.2010 Coram THE HONOURABLE MR.JUSTICE M. VENUGOPAL S.A No.1161 of 1995 1.Mohammed Sultan (Died) 2.Ansari 3.Nazeer Ahamed 4.Jainul Arabia 5.Yashhd Ali 6.Inool Jaria 7.Aaritha Begum 8.Asia Mariam ... Appellants/Defendants (Appellants 2 to 8 brought on record as LRs of the deceased sole appellant vide order of Court dated 17.11.2009 made in C.M.P.No.1535 of 2009 in SA.1161/95) vs. 1.ARA Waheed (Died) 2.Latifa Beevi 3.Kamar Jaman 4.Jamal Mohammed 5.Ziauddin 6.Zakir Hussain 7.Iqbal 8.Rabiatul Basraia 9.Zarina Begum 10.Naeer Ali ... Respondents/Plaintiffs (Respondents 2 to 9 and 10 brought on record as LRs of the deceased sole respondent vide order of Court dated 16.04.2010 made in CMP.Nos.1538 of 2009 and 624 of 2010 respectively) This Second Appeal filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 25.4.1995 in A.S.No.5 of 1993 on the file of the Subordinate Judge, Chidambaram preferred against the Judgment and decree dated 28.9.1992 in O.S.No.298 of 1990 on the file of the Learned District Munsif, Chidambaram. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mrs.A.Nilaphar for Mrs.R.Meenal For Respondents : Mr.Antony Jesus JUDGMENT The Appellant/Defendant (during his life time) has filed this Second Appeal as against the judgment and decree dated 25.4.1995 in A.S.No.5 of 1993 on the file of the Learned Subordinate Judge, Chidambaram. 2.Consequent to the death of the Appellant/Defendant, his Legal Representatives have been arrayed as Appellants 2 to 8 and after the death of the Respondent/Plaintiff, his Legal Representatives have been arrayed as Respondents 2 to 9 and 10 in this Second Appeal. 3.The First Appellate Court viz., Learned Subordinate Judge, Chidambaram in his Judgment dated 25.4.1995 in A.S.No.5 of 1993 has among other things observed that 'the Respondent/Plaintiff has been a cultivating tenant and therefore he has paid Land Tax Ex.A.3 to 6 (Receipts) in respect of the suit property and has come to the conclusion that he is entitled to the relief of permanent injunction and resultantly dismissed the appeal without costs.' 4.Earlier, the trial Court, in its judgment in O.S.No.298 of 1990 dated 28.9.1992 has inter-alia observed that 'the Respondent/Plaintiff is in enjoyment of the suit property and as such, has granted the relief of permanent injunction by decreeing the suit and has directed the parties to bear their own costs.' 5.Before the trial Court, on behalf of the Respondent/Plaintiff, witnesses P.W.1 and 2 have been examined and Exs.A.1 to A.13 have been marked. On the side of the Appellant/Defendant (deceased) D.W.1 and 2 have been examined and Exs.B.1 to 4 have been marked. 6.Being dissatisfied with the Judgment and Decree dated 25.4.1995 passed in A.S.No.5 of 1993 on the file of the Learned District Munsif, Chidambaram, the deceased Appellant/Defendant (during his life time) has preferred this Second Appeal before this Court. 7.At the time of admission of this Second Appeal, this Court has framed the following substantial question of law: https://hcservices.ecourts.gov.in/hcservices/ "Whether the Courts below have misconstrued the adduced legal evidence while granting equitable remedy of injunction on the basis of no tenancy agreement?" 8.THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON POINT: According to the learned counsel for the Appellants both the Courts have rendered an erroneous finding that the Respondent/Plaintiff (since deceased) has been continuously in possession without any evidence and further both the Courts have committed an error in relying on the Kist Receipts to prove the possession. 9.It is the further contention of the Learned counsel for the Appellants that both the Courts have not adverted to the evidence of D.W.2 and when the deceased defendant has discharged the 'Bogiyam', then he is entitled to the possession of the property and in earlier proceedings, the Respondent/Plaintiff's (deceased) all claims have been negatived and therefore, he is not entitled to claim any relief in the present suit, but these aspects of the matter have not been adverted to by the Courts below in a proper and real perspective, which has resulted in serious miscarriage of justice and therefore, prays for allowing the Second Appeal to prevent an aberration of justice. 10.In response, the learned counsel for the Respondents 2 to 8 submits that both the Courts have come to a right conclusion after scrutinising the oral and documentary evidence available on record to the effect that the Respondent/Plaintiff (Deceased) cultivated the suit land and paid the Land Tax and have granted the Decree of permanent injunction, which need not be interfered with by this Court. 11.The case of the Respondent/Plaintiff (deceased) is that he is a cultivating tenant in respect of the suit property and other properties of landlord's and that his name has been registered as a cultivating tenant, by the Record of Tenancy Tashildar of Chidambaram and that he is a cultivating tenant in respect of the suit property and as against the order of the Tahsildar, the Appellant/Defendant (deceased) has not filed any appeal and that he is paying Kist in respect of the suit property as a cultivating tenant and therefore, he ought not to be dispossessed from the suit land, except by due process of law and that the Appellant/Defendant (deceased) admitted that he trespassed into the suit property on 8.4.1990, which has been prevented with great difficulty and therefore, the present suit has been filed for the relief of permanent injunction. 12.The stand of the Appellant/Defendant (deceased) is that he is the owner of the suit property and he has mortgaged the same with possession to one Rasool Bivi on 4.6.1971 and three items have been https://hcservices.ecourts.gov.in/hcservices/ mortgaged except the suit item, and the other items have been sold to third parties and therefore, the purchasers are in possession and enjoyment of those properties and from out of the sale proceeds, the Appellant/Defendant (deceased) has discharged the aforementioned usufructuary mortgage on 30.8.1983. 13.The further plea of the Appellant/Defendant (deceased) is that on 9.11.1976, the mortgagee Rasool Bivi assigned the said mortgage to her daughter Hasina Begum and after the assignment, the debt has been discharged on 30.8.1983 and at that time there have been standing crops and hence, Hasina Begum has requested that after harvesting the produced, she will hand over the possession and that the Respondent/Plaintiff (deceased) has agreed to the course and since the said Hasina Begum had not kept her promise, the Appellant/Defendant (deceased) has issued a lawyer's notice on 2.1.1985 demanding the possession and that she has received the notice and has not surrendered the possession of the mortgaged property etc.,. 14.The Appellant/Defendant (deceased) has also projected a plea that he filed a suit in O.S.No.195 of 1985 on the file of the District Munsif, Chidambaram on 2.4.1985 and the same has been decreed on 1.3.1990 and in fact, the Respondent/Plaintiff (deceased) is not at all a tenant and he has never taken lands from the Appellant/Tenant (deceased) for lease and the receipt passed on by Rashool Beevi is not a real document and the Respondent/Plaintiff (deceased) is a big landlord and cannot called himself a tenant, much less a cultivating tenant and so called entries in the Record of Tenancy are not true and the Appellant/Defendant (deceased) has never received any summons or notice from the Tenancy Record Court. 15.The learned counsel for the Appellants urges before this Court that Ex.A.1 Lease Receipt dated 15.3.1972, executed by Rasool Beevi in favour of the Respondent/Plaintiff (deceased) does not show that it has been measured to the suit property and there is no mention of the Survey number and again in Ex.A.2 Certified copy of the preparation of the Record of Tenancy Rights Order is not a Gazette publication and not a final Record of Tenancy and the order passed in the absence of land owner will not bind the Appellants and in fact, the Appellant/Defendant (deceased) preferred a suit in O.S.No.195 of 1985 on the file of the Learned District Munsif, Chidambaram and while the said suit has been pending, the Respondent/Plaintiff (deceased) has filed I.A.No.1034 of 1985 to implead him as a party in the said suit and the said I.A.No.1034 of 1985 has been dismissed on 9.9.1998 and that the Respondent/Plaintiff (deceased) filed Civil Revision Petition No.191 of 1989 before this Court and the said Civil Revision Petition has been dismissed by this Court on 16.2.1989 and his contention as a cultivating tenant has been rejected by this Court and moreover a mere possession is https://hcservices.ecourts.gov.in/hcservices/ different and if at all he is in possession of the suit property he can be protected. 16.It is the further contention of the learned counsel for the Appellants that O.S.No.195 of 1985 filed by the Appellant/Defendant (deceased) has been decreed on 8.4.1990 and to avoid the decree of recovery of possession, the present suit has been filed by the Respondent/Plaintiff (deceased) against his own brother and the fact that the Appellant/Defendant (deceased) is in possession or usufructuary mortgage is in possession has been decided in O.S.No.195 of 1985 and therefore, the Respondent/Plaintiff (deceased) cannot claim to be in possession of the suit property. 17.The learned counsel for the Appellants submits that the First Appellate Court has rightly rejected A.2 document and deposition of Katha Muthu Ex.A.13 and other documents viz., Exs.A.3 to 12, the First Appellate Court has confirmed the Judgment and decree passed by the trial Court relating to the permanent injunction. 18.That apart, it is the contention of the learned counsel for the Appellants that the Tamil Nadu Cultivating Tenants Protection Act, 1955, Section 2(aa) (Definitions) of the said Act speaks of 'Cultivating Tenants' and in fact only a person who contribute his own physical labour or that of any member of the family in the cultivation of any land belonging to another, under tenancy agreement, express or implied can be considered to be a cultivating tenant and the Respondent/Plaintiff (deceased) cannot claim himself as a cultivating tenant at all. 19.The further contention of the learned counsel for the Appellants is that as per Section 3 of Tamil Nadu Agricultural Lands Record of Tenancy Right Act 10 of 1969 in regard to the preparation of Record of Tenancy Rights, a notice should be issued to the Land owner and the Record Officer should conduct enquiry and in the instant case on hand no enquiry has been conducted and in regard to the draft record prepared, any affected party can project an application to the Officer concerned and an enquiry ought to be conducted by the appropriate authority and Ex.A.2 by any means it cannot be construed as a final order and also that the Respondent/Plaintiff (deceased) seeks an injunction against a true owner enjoying the property. 20.The learned counsel has drawn an attention of this Court to paragraph 5 of the Appellate Court judgment in A.S.No.5 of 1993 dated 25.4.1995 and submits that in the written statement of the Appellant/Defendant (deceased) it has mentioned among other things that the mortgage land amount has been decided on 30.8.1983 etc.,. Moreover, the learned counsel refers to the observation made by the https://hcservices.ecourts.gov.in/hcservices/ trial Court in paragraph 9 of its Judgment in O.S.No.298 of 1990 dated 28.9.1992 to the effect that 'the Appellant/Defendant (deceased) has not filed any documents to show that he has directly enjoyed the suit property and indeed the First Appellate Court has granted relief of permanent injunction to the Respondent/Plaintiff (deceased) only on the basis of Ex.A.2 document and in fact, Exs.A.3 to A.5 Kist Receipts have been obtained behind the back of the Appellant/Defendant (deceased) and the same have not been paid by the owner. 21.Added further, the learned counsel for the Appellants contends that Ex.A.2 document is not a final order, more so, mere Kist Receipts paid by the tenant will not confer him title since the Appellant/Tenant (deceased) is not a party to Ex.A.1 receipt, which will not bind him and only Katha Muthu has been exercising physical labour and the First Appellate Court has not taken into account the evidence of Katha Muthu in Ex.A.13 deposition (tendered in O.S.No.623 of 1968). 22.The pith and substance of the contention put forward on the side of the Appellants is that no lease agreement between the Appellant/Defendant (deceased) and the Respondent/Plaintiff (deceased) has been proved or the tenancy agreement has been proved and the Respondent/Plaintiff (deceased) has not measured paddy and even after discharge of mortgage, the Respondent/Plaintiff (deceased) claims right as a cultivating tenant and that both the Courts have not taken into account the suit in O.S.No.195 of 1985 which has been decreed on 8.4.1990. 23.In support of the contention that a person is in wrongful possession of the property is not to be protected against the lawful owner by means of an injunction order, the learned counsel for the Appellants cites the decision of this Court in ALAGI ALAMELU ACHI V. PONNIAH MUDALIAR (1962 (1) MLJ 383) wherein, it is observed as follows: "A person in wrongful possession of property is not entitled to be protected against the lawful owner by an order of injunction. When once a Court finds that a plaintiff's possession of property is wrongful such possession cannot be protected by assistance of Court. The fact that if the lawful owner were to institute a suit, he might possibly fail on the ground that he was not in possession within twelve years of suit, could make no difference and cannot be a justification for the issue of an injunction maintaining the wrongful possession of the plaintiff." https://hcservices.ecourts.gov.in/hcservices/ 24.She also relies on the decision of this Court in SOWRIRAJAN V. SUNDARAM AND OTHERS (1998 (1) CTC 247) wherein it is held that 'All the co-owners not made parties to the proceedings before the Record Tahsildar and the entries made by him are no conclusive and no right can be claimed as cultivating tenant and that no suit property could be filed for relief of injunction against the owners not to interfere with possession till evicted in accordance with law.' 25.Added further, the learned counsel for the Appellants has referred to the observations made by this Court in the aforesaid decision at page 265 and 266 wherein paragraph 39 and 40 which are laid down as follows: "In Chandrasekaran v. Kunju Vanniar and others. AIR 1975 Mad. 227: 1976 (II) MLJ 243 : 88 L.W. 216 (FB), the question for consideration was whether the tenants under the usufructuary, mortgage were entitled to claim the protection granted under the Tamil Nadu Cultivating Tenants Protection Act as against the mortgagor also. The Full Bench observed that the principle that no man could confer upon another a title or right higher than what he himself possessed, would have no validity in the application of the inclusive definition of cultivating tenant, and held that the tenants inducted by mortgagee in possession under the provisions of Transfer of Property Act might conceivably be improved by statutory provisions which might meanwhile come into operation. The Full Bench preferred to restrict its view on the construction of the statutory provisions themselves. In the view that I have taken that the lease by the second respondent in favour of the appellant had not been validly created and that the entries made under Act 10 of 1969 had been fraudulently made, the decisions referred to above and relied on by the learned Counsel for the appellant will not help the case of the appellant." 26.Moreover, the learned counsel for the Appellants in the aforesaid decision at page 267 has relied on paragraph 46 which runs as follows: "The learned counsel relied on Karthivayani Amma V. Govindan. AIR 1980 Ker. 224 and submitted that whatever be the position, the possession of the appellant must be protected. In that case, it was held https://hcservices.ecourts.gov.in/hcservices/ that a person in possession without title could sustain a suit for injunction against the rightful owner preventing him from disturbing his possession. He could be evicted only by due process of law. This decision was followed in smt. Saraladevi v. Shailesh, AIR 1996 Bom.98". 27.Besides the above, the learned counsel for the Appellants also seeks in aid of of the observations made by this Court in the aforesaid decision at page 268 at paragraph 52 wherein, it is mentioned thus: "The learned counsel for the appellant placed reliance on T.S.Krishnamoorthy v. Mercury Chemicals and another. 1997 (1) CTC 507 wherein the Supreme Court has held that the possession of a trespasser also should be protected and he cannot be thrown out except under due process of law. It should be immediately observed that the observation of the Supreme Court in that case was by way of obiter and as has been held by the Kerala High Court in Karthiyavani Amma v. Govindan. AIR 1980 Ker. 224. "Sentences occurring in a judgment have to be read in the proper context. It may not be correct to say that casual observation in a Supreme Court judgment or even obiter dicta unconnected with the facts of the case under discussion and not laying down any proposition of law have binding force as law declared by the Supreme Court under Article 141 of the Constitution". 28.The learned counsel for Appellants cites the decision of this Court in AVUDAITHANGAMMAL V. SUBRAMANIA THEVAR AND MURUGAIAH THEVAR WITH EIGHT OTHERS (1994 – 1 - L.W. 82) wherein it is held thus: "Entries made by suppressing the real facts without notice to persons interested and the proceedings are not conclusive and the entry in the Record of Tenancy Rights Register did not confer rights as a cultivating tenant on appellant in this case and the Provisions of Act 10 of 1969 are not declaratory of rights as cultivating tenants, but pertain to the preparation of the record." 29.Further, the learned counsel for the Respondents 2 to 8 submits that D.W.1 has categorically admitted in his evidence that firstly, his father has given him 3.67 cents of lands with other lands to him for the purpose of cultivation and later, the https://hcservices.ecourts.gov.in/hcservices/ Respondent/Plaintiff (deceased) has raised crops etc., and that he resides permanently at Nellikuppam and Ex.A.1 Lease Receipt and Exs.A.3 to A.5 Tax Receipts will clearly prove that the Respondent/Plaintiff (deceased) has been in possession of the suit property and Ex.A.1 Lease Receipt also clearly prove the possession of the Respondent/Plaintiff (deceased) and as per Section 16 A of the Tamil Nadu Agricultural Land Record of Tenancy Rights Act 10 of 1969, the Civil Court's jurisdiction is barred in respect of any matter, which the Record Officer etc., has been empowered under the Act to determine the same and as per Section 3(8) of the aforesaid Act, the Record Officer can pass appropriate Orders and Section 3 of the Act speaks of preparation of Record of Tenancy Rights and since the Respondent/Plaintiff (deceased) has not been a trespasser and has been in legal possession of the suit property (during his life time) the relief of permanent injunction granted by both the Courts are a valid and proper one in the eye of Law. 30.The Suit O.S.No.195 of 1985 on the file of the District Munsif Court, Chidambaram is between one A.R.Mohammed Sultan (Plaintiff therein) and Defendant Hasina Begum. Admittedly, the Respondent/Plaintiff (deceased) is not a party to the Decree in O.S.No.195 of 1985. The Civil Revision Petition No.191 of 1989 filed by the deceased/Plaintiff as a third party petitioner has been dismissed by this Court on 16.2.1989 inter-alia observing that, if any attempt to take possession by the mortgagor, alleged the landlord of the petitioner is made then, there will be a right for the petitioner to take such steps as are allowed in Law. 31.At this juncture, a perusal of Ex.B.1 Certified copy of the suit register in O.S.No.621 of 1998 on the file of District Munsif, Chidambaram shows that the Respondent/Plaintiff (deceased)in O.S.No.298 of 1990 has figured as a tenant in the said suit which has been filed by A.R.Naina Mohammed for the relief of declaration of Plaintiff's title to the suit properties and for recovery of Rs.2449.43, for means profit and for costs. The said suit has been decreed holding that the Plaintiff therein is entitled to the suit property etc., In the said Ex.B.1 document it is mentioned that the First Appeal A.S.No.52 of 1972 has been preferred on the file of the Subordinate Judge, Chidambaram and the same has been allowed and the decree of the trial Court has been set aside and the decree has been passed to the effect that the Appellant/Plaintiff is declared entitled to the suit properties described in the decree of the trial Court etc., 32.Ex.B.2 is the Certified copy of the Suit Register in O.S.No.622 of 1968 filed by one Habiba Bivi against one Abdul Waheed viz., the Plaintiff in O.S.No.298 of 1990 on the file of the District Munsif, Chidambaram. The said suit has been decreed on 31.3.1972 holding that the plaintiff therein is declared entitled to the suit https://hcservices.ecourts.gov.in/hcservices/ property etc., and the first appeal, A.S.No.53 of 1972 has been preferred by the concerned on the file of the Subordinate Judge, Chidambamram and the said appeal has been allowed holding that the Appellant/Plaintiff is hereby declared entitled to the suit properties described in the decree of the trial Court etc., in Second Appeal No.699 of 1976 on 12.11.1976, the lower Appellate Court decree has been confirmed and that the said Second Appeal has been dismissed. 33.Ex.B.3 is the Certified copy of the Suit Register in O.S.No.623 of 1968 on the file of the District Munsif, Chidambaram. In that one Abdul Rahim has figured as Plaintiff and the Defendant is one Abdul Zaheed Saheb. The said suit has been decreed on 31.3.1972 after full trial and that the Plaintiff has been declared entitled to the suit property etc., and further, the Plaintiff's claim for possession has been dismissed. However, in A.S.No.165 of 1972 on file of the Learned Subordinate Judge, Chidambaram, the appeal has been allowed and decree of the trial Court has been set aside and it is held that the Appellant/Defendant has been declared entitled to the suit properties described in the decree of the trial Court. 34.Ex.B.4 is the Certified copy of the Suit Register in O.S.No.692 of 1968. In that one Hathija Bivi has figured as Plaintiff and Abdul Zaheed has figured as Defendant. The said suit on 31.3.1972 has been decreed after full trial holding that the Plaintiff is declared entitled to the suit property etc. In A.S.No.54 of 1972 on the file of the Learned Subordinate Judge, Chidambaram, the appeal has been allowed and the decree of the trial Court has been set aside and further, it is decreed that the Appellant/Plaintiff is declared entitled to the suit properties described in the decree of the trial Court etc. 35.Eventhough Ex.A.2 is said to be a preparation of Record of Tenancy Rights and it is not a final one yet a perusal of the same indicates that the name of the Respondent/Plaintiff (deceased) has been mentioned as a person cultivates the land. Ex.A.2 is said to be a true copy obtained from the Court which has been marked earlier as Ex.A.1 in I.A.No.148 of 1977 in O.S.No.621 of 1968 produced on 12.4.1977 etc.,. In fact entry made in the Record of Tenancy presumed to be true and correct until the contrary is established. Otherwise, the particulars in the Record of Tenancy can be altered only in the manner specified under the Act. 36.In the instant case on hand, it is candidly clear from Ex.A.13 deposition of one Katha Muthu tendered in O.S.No.623 of 1968 on the file of the Learned District Munsif, Chidambaram that on 15.3.1972 he has taken paddy to Rashool Beevi and for handing over 17.5 bags of paddy, they have obtained Receipt etc., and at that time, the Defendant therein has come along with him and obtained the receipt (namely the Plaintiff in the present suit). https://hcservices.ecourts.gov.in/hcservices/ 37.Just because Katha Muthu has expired and since his deposition Ex.A.13 in Court proceedings assumes significance and the said deposition of Katha Muthu cannot be brushed aside on any score in the considered opinion of this Court. Suffice it for