Rajamanikkam v. Abdul Rashid

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.2.2008C O R A MThe Honourable Mr.Justice M.JAICHANDRENS.A.No.1531 of 19991. Rajamanikkam2. Subramaniam3. Palani4. Paramasivam .. AppellantsVersus1. 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 Beevi4. Noorjahan Beevi5. Jeenat Beevi6. Abdul Kalam Azad7. Sadiq Basha8. Samsad Bhanu9. Mohammed Sadiq10.Johur Rahman (Respondents 3 to 10 are brought on recordas 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) .. RespondentsPRAYER: This second appeal has been filed againstthe judgment and decree of the Additional SubCourt, Mayiladuthurai, dated 21.1.1999 in A.S.No.62of 1998, confirming the judgment and decree of theDistrict Munsif Court, Sirkali, dated 7.11.1996, inO.S.No.404 of 1995. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.S.Sounthar For Respondents : Mr.R.MahalingamJ U D G M E N TThis second appeal has been preferred against thejudgment 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 MunsifCourt, Sirkali, dated 7.11.1996, made in O.S.No.404 of 1995. 2. For the sake of convenience, the parties are referredto as they have been arrayed in the original suit. The plaintiffs, who are the respondents in the presentsecond appeal, had filed a suit in O.S.No.404 of 1995, beforethe District Munsif Court, Sirkali, praying for the relief ofpermanent injunction to restrain the defendants and their menfrom interfering with the peaceful possession and enjoyment ofthe suit property by the plaintiff and the alternative reliefof recovery of possession and for mesne profits stating thatthe suit property is a land having an extent of 0.56 cents inR.S.No.259/1,(Now R.S.No.259-1-B), in Koothiyampettai Village,Sirkali Taluk. The suit property had been purchased by thefirst plaintiff by a sale deed, dated 8.9.1971, and since thenit has been in his peaceful possession and enjoyment. Thepatta, chitta and the adangal stand in the first plaintiff'sname bearing patta No.42. 3. The kist for the suit property is being paid in thename of the first plaintiff. The said property is in thepossession of the first plaintiff under pannai cultivation.The second plaintiff has been helping the first plaintiff inthe cultivation of the land. The first defendant is thebrother of Pavadai and Murugaiyan and they have sold the suitproperty in favour of the first plaintiff and since then thefirst defendant has been holding a grudge against the firstplaintiff. Thereafter, the first plaintiff has been makingattempts to encroach upon the suit property. Further, thefirst defendant has been causing trouble to the secondplaintiff, who has been managing the suit properties.Therefore, the plaintiffs have lodged complaints before thepolice. 4. Defendants 2 to 4 are the sons of the first defendant.The defendants have been compelling the first plaintiff togive the suit property to them to cultivate the same, alongwith 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, onthe file of the District Munsif Court, Sirkali, against thebrother of the first defendant and the second plaintiffpraying for the relief of permanent injunction stating that heis a cultivating tenant of the suit property. The said suitwas pending before the District Munsif Court, Sirkali. Eventhough the defendants had no right whatsoever in the suitproperty, they were threatening to take forcible possession ofthe suit property and to carry on cultivation in the saidproperty. In such circumstances, the plaintiffs had filed thesuit 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 statedthat the defendants' father had purchased 0.52 cents of landin the suit survey Number by a sale deed, dated 22.7.1939. Hehad also got 61 cents in the same survey Number as a legalheir. After his death, his sons, namely, pavadai, Natesan,Murugesan and the first defendant had divided the propertyinto four shares and they were in separate enjoyment of thesame. Later Murugesan had sold his share of the property tothe first plaintiff. Similarly, Thanam, wife of Natesan, hadsold her share to the first plaintiff. Since the firstplaintiff had been travelling to foreign countries pursuinghis business activities, he had given his property to thefirst defendant for cultivation by an oral lease. As such, thefirst defendant has been cultivating the said land, along withhis 28 cents of land situated adjacent to the suit propertyby putting up a fence treating the property as one unit. 6. Based on the averments made in the plaint as well asin the written statement, the trial Court had framed thefollowing issues for consideration:-"1. Whether the plaintiffs are inpossession and enjoyment of the suitproperty? Whether the plaintiffs areentitled to get the relief of permanentinjunction?2. Whether the first defendant hasbeen cultivating the suit property as atenant?3. What other reliefs the plaintiffsare 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 torecovery of possession of the suitproperty as an alternative relief?"8. P.W.1 to P.W.3 had been examined as witnesses andExhibits A.1 to A.4 had been marked in the suit, in support ofthe contentions raised by the plaintiffs. On behalf of thedefendants, D.W.1 and D.W.2 had been examined as witnesses andfive documents had been marked as Exhibits B.1 to B.5. 9. Based on the contentions raised on behalf of theparties concerned and in view of the evidence available, thetrial Court had decreed the suit granting the relief ofpermanent injunction restraining the defendants, their men andagents from in any way interfering with the plaintiffs'peaceful possession and enjoyment of the suit property.10. While granting the relief to the plaintiffs, thetrial Court had found that though the first defendant hadclaimed that he has been in enjoyment of the suit property asa tenant for nearly 30 years, there was no proof shown onbehalf of the first defendant to substantiate his claim thathe has been paying the lease amount to the plaintiffs. It wascontended on behalf of the first defendant that it was an orallease by which the first defendant has been in cultivation ofthe suit property. However, during the cross-examination hehas admitted that he is the owner of the suit property andthat he need not pay any lease amount to any person. 11. In view of the contradictory claims and due to thefact that the first defendant had not been in a position toprove that he has been in possession and enjoyment of the suitproperty for nearly 30 years, the trial Court had held thatthe claims made on behalf of the first defendant had not beenproved. The first defendant had also admitted that his namehas not been registered as a cultivating tenant in theconcerned records. Since the first defendant could not provethat he was a cultivating tenant, registered in accordancewith the provisions of The Tamil Nadu Cultivating Tenants Act,1955, it was held that the objections raised on behalf of thefirst defendant that the trial Court does not have thejurisdiction to try the suit cannot be accepted. 12. The trial Court had also found that the secondplaintiff has been cultivating the suit property on behalf ofthe first plaintiff, based on the oral evidence of the VillageAdministrative Officer, Koothiyampettai Village, Sirkali Talukand in view of the adangal, marked as Exhibits A.3, whichshows that the cultivation of the suit property was being donein 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 sufficientlyproved by both the oral and documentary evidence availablebefore the Court.13. Aggrieved by the judgement and decree of the trialCourt, dated 7.11.1996, made in O.S.No.404 of 1995, thedefendants had filed an appeal in A.S.No.62 of 1998, on thefile of the Additional Sub Court, Mayiladuthurai.14. Considering the claims made on behalf of theplaintiffs as well as the defendants and in view of theevidence available, the first appellate Court had framed thefollowing points for consideration:-"1.Whether the plaintiffs are entitledto get the relief of permanent injunctionas prayed for in the plaint?2.Whether the plaintiffs have theright to recovery of possession of the suitproperty from the defendants, as prayed forin the plaint?3.What other reliefs the plaintiffsare entitled to?"15. The first appellate Court had found that there was nodispute with regard to the fact that the first plaintiff isthe owner of the suit property. It was also found that sincethe plaintiffs had not been in possession of the suit propertyon the date of filing of the suit, they had prayed for therelief of recovery of possession by amending the plaint. Sinceboth the plaintiffs are not living in Koothiyampettai Village,Sirkali Taluk, where the suit property is situated, the lowerappellate Court had not accepted the contention of theplaintiffs that they were in possession of the suit propertyat the time of the filing of the suit. On the other hand, fromthe evidence available, the first appellate Court had foundthat the suit property has been in the possession andenjoyment of the defendants prior to the filing of the suit.Therefore, with regard to the first issue, the lower appellateCourt had held that the plaintiffs were not entitled to therelief of permanent injunction as originally prayed for in thesuit. 16. With regard to the second issue, the lower appellateCourt had held that the first defendant had not proved hisclaim that he was cultivating the suit property as acultivating tenant. However, since the suit property was foundto be in the possession of the first defendant in spite of thefact that the first plaintiff is the owner of the saidproperty, 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 thatthey are cultivating the suit land either as a registeredcultivating tenant or by an oral agreement between the firstplaintiff and the first defendant, the lower appellate Courthad not accepted such a contention raised on behalf of thefirst defendant. The first defendant had not been in aposition to show that his name has been registered in thetenancy records as a cultivating tenant in accordance with therelevant provisions of law. 17. Since the first defendant had not attempted toregister his name as a cultivating tenant in spite of hisclaim that he has been cultivating the suit land for more than20 years, pursuant to an oral agreement, the contention raisedon behalf of the first defendant that he has been cultivatingthe suit land as a cultivating tenant cannot be accepted.Further, it was also noted that such a claim has not been madein the written statement filed on behalf of the defendants.The first defendant had also not shown any evidence to provethat he has been paying the lease amount to the plaintiffs.The oral evidence of D.W.2 examined on behalf of thedefendants was found to be insufficient to prove the claim ofthe first defendant that he was a cultivating tenant in thesuit property. Even though the first defendant had initiallyclaimed that he was a cultivating tenant in the suit property,later he had changed his stance to claim that he was inpossession of the suit property as its owner. Therefore, thefirst appellate Court had found that the plaintiffs wereentitled to the relief of recovery of possession of the suitproperty from the defendants. 18. Aggrieved by the judgment and decree of the firstappellate 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 followingsubstantial questions of law:"1. Whether the Courts below arecorrect in negativing the appellants pleaof cultivating tenancy on the ground thathis name is not recorded in RTR records?Whether recording the name in RTR recordsis sine que non for claiming cultivatingtenancy?2. Whether the lower appellate Courtas a final Court of facts erred in notadverting to the oral evidences of DW2 asmandated by Order 41 Rule 31 of C.P.C.? https://hcservices.ecourts.gov.in/hcservices/

3. Whether the non consideration oforal evidences of DW2, PW2 and PW3especially when oral tenancy arrangement ispleaded vitiates the judgment of lowerappellate Court?"20. The learned counsel appearing for the appellants hadcontended that the judgment and decree of the Courts belowwere against law and the weight of the evidence and theprobabilities of the case. The lower appellate Court havingheld that the possession of the suit property was with thedefendants, it ought to have held that they are entitled tothe protection contemplated under the provisions of The TamilNadu Cultivating Tenants Act, 1955. 21. It was also contended that the Courts below had erredin not taking into consideration the report of the AdvocateCommissioner. It had clearly shown that the suit property andthe other properties of the first defendant were being enjoyedby him and that he was cultivating the same. It was alsosubmitted that both the trial Court as well as the firstappellate Court had not sufficiently appreciated the evidencerecorded in the criminal proceedings in C.C.No.7 of 1992, inits proper perspective.22. The learned counsel appearing on behalf of therespondents had submitted that the Courts below had rightlyappreciated the evidence on record and had come to the correctconclusion. Since the lower appellate Court had found that thepossession of the suit property was in the illegal possessionof the defendants as encroachers, it was decreed that theplaintiffs were entitled to the relief of recovery ofpossession of the suit property from the defendants. 23. In view of the rival contentions and on analysing thejudgment and decree of the Courts below, this Court is of theconsidered view that the lower appellate Court was right ingranting the relief of recovery of possession in favour of theplaintiffs, since the first defendant could not showsufficient proof to substantiate his contentions claiming thathe was a cultivating tenant in the suit property. It was alsofound that the defendants were in illegal occupation of thesuit property and that the suit property belonged to the firstplaintiff as its owner. In such circumstances, the appellantsin the second appeal, who were the defendants in the suit,have not shown sufficient cause or reason for this Court tointerfere with the findings of the Courts below. On the otherhand, the plaintiffs have substantiated their claims, both byoral as well as by documentary evidence. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ substantial questions of law arising for consideration areanswered in favour of the respondents in the second appeal andthe second appeal stands dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarlanTo1. 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.8274S.A.No.1531 of 1999AKR[CO]SKY/28/2