Sivaprakasam v. Ariyalur

records in N.M.No.RTR 3/89 dated 10.12.1991 of the 3rd respondent, confirming the order dated 27.4.88 in his SRP 10/87 of the 2ndrespondent and the order dated 27.5.87 in RTR 1/86 of the 1strespondent and quash the same. For Appellants : Mr.K.Alagirisamy, Senior Counsel for Mr.M.MohanFor Respondents : Mr.D.Sreenivasan, for R1 to R3 Mr.S.Parthasarathy, Senior Counsel for M/s.Sarvabhauman Associates for R4J U D G M E N TThis Writ Appeal has been preferred against the order of thelearned single Judge, made in W.P.No.3896 of 1992 dated 04.08.2000,dismissing the writ petition filed by the petitioners challengingthe order of the third respondent confirmed by the order of thesecond and first respondents.

The brief facts of the case are as follows: According to the appellants (hereinafter referred to aspetitioners), they are the cultivating tenants under DandeeswaranTemple and Varadharaja Perumal Temple and they have beencultivating the lands comprised in Survey Nos.250/4, 250/8, 250/17and 252/2 to an extent of 10.65 cents situate in Sendurai Village, Ariyalur Taluk. When things stand so, the fourth respondent fileda petition in T.R.No.1 of 1986 on the file of the first respondentseeking for an order to initiate legal action against thepetitioners herein to remove their rights over the aforesaid landsthat they had been holding long ago. The said petition waspreferred under Section 5(2) of the Tamil Nadu Agricultural LandsRecord of Tenancy Rights Act, 1969 (Act 10 of 69).

The case of the fourth respondent before the firstrespondent was that the properties originally belonged to the SriSivandandeeswarar and Varadharaja Perumal Temple situate at Sendurai Village, Ariyalur Taluk, Trichy District. Subsequently, they purchased the property through a sale deed dated 12.12.1985after obtaining permission from HR & CE Commissioner. The purchaseof the property was for raising houses for the Government employeesin the said property.

It is the further contention of the fourth respondent thatthe property was left without proper cultivation; the petitionerswere giving troubles to the fourth respondent based on the factthat their names were finding place in the tenancy rights. Hencethe fourth respondent sought the deletion of the petitioners' namefrom the tenancy register.

The petitioners contested the petition. After enquiry, thefirst respondent allowed the petition and ordered deletion of thepetitioners name from the tenancy rights register. https://hcservices.ecourts.gov.in/hcservices/

Aggrieved by the order of the first respondent dated27.05.1987, the petitioners filed R.P.No.10 of 1987 on the file ofthe second respondent who confirmed the order of the firstrespondent and dismissed the petition. Against the said dismissalorder, a revision was preferred before the third respondent inN.M.S.R.D.R.3 of 1989 and the said revision petition was alsodismissed on 10.12.1991, upholding the order passed by the firstrespondent as confirmed by the second respondent. Against theorder of the revision passed by the third respondent, W.P.No.3896of 1992 was filed and the same was dismissed by the learned SingleJudge on 04.08.2000. Against the said order, the present appealhas been preferred.

Heard the learned Senior Counsels for the respectiveparties and perused the materials available on record.

It is not in dispute that the petitioners names werefinding place in the Tenancy Rights Register. The Tenancy Registerwas also published in the gazette notification dated 13.02.1972 inwhich the properties were shown as Item Nos.47, 48, 49 and 50. Theland owner of the property was shown as Sri SivandandeeswararTemple, Sendurai, Sri Varadharaja Perumal Temple, Sendurai. Thepetitioners names and their ancestors names were shown as thetenants. The above said notification would indisputably prove thatthe petitioners were let in possession as cultivating tenants andthat was the reason why their names found place in the gazettenotification dated 13.02.1972 issued by the Special Tahsildar. Thesaid publication was made as per Section 3(5) of the Tamil NaduAgricultural Lands Record of Tenancy Rights Act. Hence there is noquestion with regard to the petitioners' status that they are thecultivating tenants in the said lands.

When the fourth respondent purchased the property, therecould only be a transfer of ownership of property and the status ofthe petitioners remain the same as that of cultivating tenants. The fourth respondent contended before the first respondent byfiling petition in T.R.No.1 of 1986 that they were given possessionof the property by the Devasthanam as per the sale deed and thepetitioners were not in possession of the property. In suchsituation, the burden of proof was cast upon the fourth respondentas per Sections 101 to 104 of the Indian Evidence Act to prove thatthe petitioners were dispossessed according to law and subsequentlythe Devasthanam handed over possession of the land to the fourthrespondent. Mere allegation in the petition that the fourthrespondent was given possession of the property is not sufficient. There should be substantial evidence to prove the said allegation.

It is interesting to note that the fourth respondent didnot make the Devasthanam as a party to the petition filed beforethe first respondent. If the Devasthanam was made as a party, the Devasthanam would have given the details as to whether it deliveredactual and physical possession or symbolic possession of the https://hcservices.ecourts.gov.in/hcservices/ property to the fourth respondent. Hence, the petition filed by thefirst respondent before the second respondent is bad for non-joinder of necessary party.

During the enquiry before the first respondent, two courtwitnesses were examined, namely Temple Executive Officer (C.W.1)and Village Administrative Officer (C.W.2). The important portionsof the evidence of C.W.1 is extracted as follows:-"All the lands belonged to the temple. These had been givenonly for lease. To the lessees of the temple-lands, lease-deedshave been executed. All the aforesaid lands are punja lands. Allthe aforesaid lands could be cultivated only if there is rainfall. To all the lessees, the lease is similar. The lessees had beenremitting Rs.30/- per annum for one acre of land from 1389 faslionwards. But each one of them had remitted in different way. Fora few of them, there is arrears since 1384....If there is arrear, action would be initiated through Revenue Court....In the landsbelonging to Sivandandeeswarar and Varadharaja Perumal Temples, there was no direct cultivation. Out of the 16 respondentsmentioned in the petition, except 1 and 2, the others had beencultivating these lands through others by keeping the right oflease with them....When I took up office as the Executive Officerof the temple, that respondents 3 to 16 are lessees is found inT.C.P. If there was arrear in the temple lease, to remove him, action ought to have been initiated....When the sale was made, inP.15 (letter of the Executive Officer, Sendurai Temple) whilerecommendation was made to the Commissioner of the ReligiousEndowment Department, Chennai.

The important portions of the evidence of the VillageAdministrative Officer (C.W.2) are as follows: "In the aforesaid lands, in 1395,gingely, kambu, maize, ragiwere cultivated. In 1396, the aforesaid lands were leftfallow. ...In S.No.250/4, there are two thatched houses and plantedcoconut seedlings. In the four survey Nos, there are separate https://hcservices.ecourts.gov.in/hcservices/ fences. There is one hand-pump in S.No.250/4 land. This is in thelands that were in the enjoyment of Ramadas and Ramalingam (P4 andP5). For these lands, there is no tax-arrears.... For 250/4, 250/8,there are individual boundaries showing separate enjoyments. In1395 fasli, Marudhanayagam and party had done cultivation. At250/4, Muthusami Mudaliar had put up a cattle-shed. On the easternside of the land under the enjoyment of the VeeramuthuPadayachi...In this, for 250/21, 0.09.5 acre there is patta on Veeramuthu Padayachi. On 250/20' for Balakrishnan and seven others0.10.0 patta has been given....In 1395 fasli, as per the Revenuerecords, there were no three parties. But crop has been harvested. After getting concurrence from the respondents and after holdingenquiry, the patta was not transferred. As per the sale record onperusing the sale record, we have effected patta-transfer....Whenthe respondents had ploughed the land, the police intercepted them. When garbage was deposited on the land, police intercepted them. "

The aforesaid evidence of C.W.1 and C.W.2 would make itvery clear that the petitioners herein had been the lessees of thetemple and they were registered as cultivating tenants as per the Act and they continue to be in possession of the property by doingcultivation. However, they could not do the cultivation because ofthe interference by the police, probably at the instance of thefourth respondent which is a Federation of Government Employees.

If the fourth respondent wanted to evict the petitionersfrom the land, they should have initiated proceedings for evictionunder Section 3(2) of the Tamilnadu Cultivating Tenants ProtectionAct, 1955. Only under those grounds which are mentioned in Section3(2) of the Act, a cultivating tenant can been evicted and not byany other mode. This has been clearly stated by the Hon'ble ApexCourt in the case of Thimmappa Rai v. Ramanna Rai reported in 2007(5) CTC 287. In paragraph 14 of the Judgment it is held as follows: "14. Thus, inter alia a person, who thus, carries on personalcultivation of said land under a tenancy agreement expressed orimplied, including one who continues in land after determination ofthe tenancy agreement in terms of the provisions of the Act, wouldbe a cultivating tenant under the said Act and a landlord isprohibited from evicting him whether in execution of a decree or anorder of a Court or otherwise. "

In an earlier judgment in G.Ponniah Thevar Vs.Nalleyamperumal Pillai and others reported in AIR 1977 SC 244,arising under Tamil Nadu Cultivating Tenants Protection Act, athree Judges Bench of the Hon'ble Apex Court held as follows: "Thus we see that statutory protection from eviction in thisexhaustively comprehensive self contained procedure, may last evenafter the land-lord has filed the prescribed application foreviction after an accrual of his cause of action"Para 6 of the Judgment is extracted as follows:6. There is no doubt whatsoever that the appellant was thelessee whose right to cultivate as a tenant had not been determined https://hcservices.ecourts.gov.in/hcservices/ by anything in the lease or under any statutory provision. Thelearned counsel for the appellant pointed out that even if therehad been a determination of the tenancy under a lease, theappellant would still be a cultivating tenant as defined in the Act, because of the provision of Section 2 (aa) (1)(2)(i) of the Act. Apparently, such a statutory definition of a cultivatingtenant and an exhaustive procedure for his eviction in certaincases only and in no other case, are there so as to carry out thepurpose stated in the preamble as follows: "Where it is necessary to protect cultivating tenant in certainareas in the State of Madras from unjust eviction".

Without resorting to the procedure contemplated under Tamilnadu Cultivating Tenants Protection Act, 1955, it is seen thatthe fourth respondent filed a petition under Section 5(2) of the Tamilnadu Agricultural Lands Record of Tenancy Rights Act, 1969.Section 5 of the Act reads as follows: "5. Modification entries in the approved record of tenancyrights-(1) where any person claims that in respect of any landalready included in the approved record of tenancy rights anymodification is required in respect of the entries in such recordeither by reason of the death of any person or by reason of thetransfer of interest or by reason of any other subsequent change incircumstances, he shall make an application to the record officerfor the modification of the relevant entries in the approved recordof tenancy rights. (2)An application under sub-section (1) shall contain suchparticulars as may be prescribed and shall be accompanied by thedocuments, if any, relied on by the applicant as evidence insupport of his claim. (3) (a) Before passing an order on an application under sub-section (1) the record officer shall follow such procedure as maybe prescribed and shall also give a reasonable opportunity to theparties concerned to make their representations either orally or inwriting. If the record officer decides that any modificationshould be made in respect of the entries in the approved record oftenancy rights he shall pass an order accordingly and shall effectthe modification and make such incidental and consequential changesin the approved record of tenancy rights, as appear to him to benecessary, for giving effect to his order. (b) If the record officer decides that there is no case foreffecting any modification in the entries in the approved record oftenancy rights he shall reject the application. (c) An order under clause (a) or clause (b) shall contain thereasons for such order and shall be communicated to the partiesconcerned in such manner as may be prescribed. " https://hcservices.ecourts.gov.in/hcservices/

A perusal of Section 5 would reveal that the modificationof entries in the approved record of tenancy rights can be made inthe following circumstances: (i) by reason of the death of any person(ii)by reason of the transfer of interest and(iii)by reason of any subsequent changes in circumstances.

In the present case, modification could be done only withregard to transfer of interest that is to say, instead of temple'sname, the fourth respondent's name could be entered as owner ofthe land and nothing could be done beyond that. However, the firstrespondent made an exercise under Section 5(2) of the Act and wentbeyond his jurisdiction and held that the petitioners are notentitled to get the benefits of the Act observing that thepetitioners were not tendering their lease arrears. Moreover, herelied upon the evidence of the fourth respondent and came to theconclusion that the possession was not with the petitioners. Onthe other hand, he referred about the evidence of the petitionersand observed "though the petitioner has stated the possessions hascome to him after the purchase was made, since all the respondents(petitioners in the writ petition) have adduced evidence to theeffect that during 1396 fasli cultivation was not done, it is to beconsidered that at present the enjoyment is not with them".

It is the categorical assertion of C.W.2, the VillageAdministrative Officer, that when the petitioners ploughed theland, the Police stopped them. The petitioners alsostraightforwardly deposed before the first respondent that theycould not cultivate from fasli 1396 onwards because of the Policeaction. Anybody can understand that the action of the Police wasonly at the instance of the fourth respondent, a GovernmentEmployees Federation, who used Police force after purchase of theproperty.

A Government Employee Federation which is supposed to actaccording to Law cannot circumvent the Rule of law by misusing theprovisions of a wrong Act according to its whims and fancies. Thefourth respondent could not have approached the first respondent inthe guise of modification of entries in the approved record oftenancy rights contending that the possession was delivered to itby the Devasthanam pursuant to the sale deed and that it was inpossession of the property and that the petitioners were not inpossession of the property. By filing petition under Section 5 of Tamilnadu Agricultural Lands Record of Tenancy Rights Act, thefourth respondent deliberately avoided invoking the Tamil NaduCultivating Tenancy Protection Act, which gives limited right tothe landlord to evict the cultivating tenant from the lands. It hasbeen held by the Hon'ble Supreme Court in a case under Madrascultivating Tenants Protection Act in G.Ponniah Thevar Vs.Nalleyamperumal Pillai and others reported in AIR 1977 SC 244."These enactments are really meant for the purposes proclaimedby them. The obvious effect of statutory provisions cannot be taken https://hcservices.ecourts.gov.in/hcservices/ away or whittled down by forensic sophistory. Courts should notallow themselves to become tools for defeating clearly expressedstatutory intentions".

Sensing that it may not be successful in its attempt totake the possession of the property under the Tamil NaduCultivating Tenancy Protection Act, the fourth respondent indulgedin indirect way to take possession from the cultivating Tenants(the petitioners) by filing Section 5 petition under the TamilnaduAgricultural Lands Record of Tenancy Rights Act, based on plea ofpossession which is false has to be deprecated and discouraged. Hence the order passed is nothing but improper exercise of the Jurisdiction of the first respondent causing grave miscarriage ofjustice as held by the Hon'ble Supreme Court in Swaran Singh andanother vs State of Punjab and others reported in (1976) 2 SCC 868.

The findings arrived at by the first respondent arecontradictory in nature. At one place, he observed that thepetitioners were not the lessees; in an other place, he observedthat the petitioners had lease arrears to be cleared and they werenot prepared to remit lease arrears till date. In another place, the first respondent observed as follows: "Therefore, for the respondents (the petitioners) who havebeen contesting cases in several courts, without tendering theirlease-arrears, the tenancy protection Act would not give anyprotection. "The aforesaid finding would make it clear that the petitionerswere in possession of lands as cultivating Tenants. In that event, the first respondent ought to have given finding as to how thepetitioners were dispossessed of the lands and as to how the firstrespondent landed in the lands.

A careful examination of the first respondent's orderwould reveal that it is a bundle of contradictions and in fact thefirst respondent went beyond his jurisdiction and gave finding whatwas supposed to be given by the Revenue Divisional Officer underthe Tamil Nadu Cultivating Tenancy Protection Act, 1955. Even asper the first respondent's order, the petitioners possession hadbeen recognised. The first respondent held that the petitionerswere not lessees and they were not entitled to any protection whichis a perverse finding as the same is contrary to evidence availableon record viz Gazette Notification dated 13.02.1972 issued undersection 3(5) of the Tamil Nadu Agricultural Lands Record of TenancyRights Act. 24. The Honourable Supreme Court in State of A.P vsP.V.Hanumantha Rao (Dead) through L.Rs and another reported in(2003) 1O SCC 121 upheld the Judgment of the High Court, whiledealing with a case under the provisions of Andhra Pradesh Landgrabbing (Prohibition) Act, 1982 against the Judgment of the Special Court.

Thus it is very clear that the first Respondent order asconfirmed by the authorities and the Single Judge was based on aclear misunderstanding and utter disregard of the provisions of Lawand against the evidence available on record and liable to be set-aside.

It has been held by 7 Judges Bench of the Hon'ble SupremeCourt in L.ChandraKumar vs Union of India and others reported in(1997) 3 SCC 261, that it is the duty of Superior Courts to overseethat the judicial decisions rendered by the Sub-ordinate Courts and Tribunals do not fall foul of strict standard of legal correctness. In this case, hopelessly, the first respondent who was duty boundto prove his legal possession of the property failed to prove and https://hcservices.ecourts.gov.in/hcservices/ inspite of that the other respondents decreed the firstrespondent's claim and the same is against evidence available onrecord. Hence, the decisions of the lower authorities are to beset aside by this Court.

The functions and jurisdiction of the Record Officer hasbeen stated by the Full Bench of this Hon'ble Court in PeriathambiGoundan v. The District Revenue Officer reported in 93 LW 169,which is extracted as follows: ".. .. .. If, on the other hand, the decision of the controversy isthat the land has not been let for cultivation by a tenant there isno question of there being any tenancy rights in respect of thesaid land and consequently, there is no question of the RecordOfficer ascertaining or determining any further particulars in thisbehalf. Therefore, if such controversy arises, that controversycannot be said to be within the exclusive jurisdiction of theauthorities functioning under the Act, and any determination ofthat controversy by the authorities can be said to be onlyincidental to the assumption of jurisdiction by the authoritiesunder the Act. Subject to this qualification it can be held thatonce the Record Officer or any other authority functioning underthe Act has come to the conclusion that the land has been let forcultivation by a tenant, the matters provided for in S.3(2) have tobe determined by the Record Officer, or other authority functioningunder the Act, and to that extent the jurisdiction of the civilcourt is barred under S.16-A of the Act.37. With particular reference to the facts of this case, as the Record Officer had jurisdiction to decide the name and address ofthe tenant cultivating the land, if there are competing claims bytwo persons that they are cultivating tenants he had necessarily todecide that question. " As per the aforesaid Judgment, the Record Officer has to decide thename and address of the tenant of the cultivating land and if thereare any competiting claims by two persons, the same has to bedecided.

Whereas in this case, the subsequent purchaser only filedthe petition for modification of entries. Without calling upon thefourth respondent to prove as to how it was put in possession ofthe property as per Law by the Devasthanam and it continues to bein possession of the property excluding the possession of thepetitioners. The first respondent gave findings which are based onno evidence. Without appreciating the facts in proper perspectivethe second and third respondents also confirmed the perverse orderof the first respondent and subsequently by the learned singleJudge.

The finding of the learned single Judge that the landswere not cultivated for more than ten years, that the petitionersclaiming tenancy right did not enjoy the property for several yearsand that they did not pay the rent to the temples and that theywere not in possession of the property would not make the fourth https://hcservices.ecourts.gov.in/hcservices/ Respondent to be in possession of the property. These aforesaidfindings only supported the petitioners case that they are thecultivating tenants.

One another aspect is that the petitioners filed varioussuits against the fourth respondent and obtained a decree ofpermanent injunction against them. Even as per the decree andjudgment dated 31.07.1991, obtained by Muthusamy Mudaliar (thefirst petitioner), there was a clear finding with regard to thepossession of the property by the said Muthusamy Mudaliar that theproperty remains with the first petitioner and if the fourthrespondent wanted to take possession of the property, it had toinitiate proceedings for getting possession of the property fromthe said Muthusamy Mudaliar. The Civil Court also clearly foundthat the fourth respondent could have got only symbolic possessionof the lands and not actual physical possession. Hence the plea ofpossession of the lands by the fourth respondent and consequentplea for removal of petitioners name from the Tenancy RightsRegister under Section 5(2) of Tamilnadu Agricultural Lands Recordof Tenancy Rights Act 1969 before the first Respondent is notmaintainable and the first Respondent got no jurisdiction to decidethe issue as the matter required to be decided by the secondRespondent under the relevant provisions of Tamil Nadu cultivatingTenants Protection Act.

At the risk of repetition, this Court reiterates that the https://hcservices.ecourts.gov.in/hcservices/ fourth respondent has to demonstrate by pleading and evidence as tohow the possession of the property was taken from the petitionersas they were the registered cultivating tenant which has beenfortified by the gazette notification dated 13.02.1972. Theauthorities also failed to give reasoning as to how the petitionerswere dispossessed from the property and as to how the possessionhad landed in the hands of the fourth respondent. There was noproper enquiry by the authorities by going into the details of theevidence.

Normally this Court will not venture into finer details ofthe evidence and finding of facts. However, the facts of the casewarranted the said examination. Though finding of facts cannot bereversed in appeal under Article 226 usually, the Court is notpowerless, when the authorities below erroneously assumedjurisdiction which they are not entitled to exercise and gaveerroneous and perverse findings contrary to the evidence availableon record. Moreover the findings given in this are based on noevidence and authorities gave finding on the basis of conjecturesand surmises and they have to be set-aside. Hence this Courtreverses those erroneous decisions of the authorities as confirmedby the Single Judge in the interest of Justice. This Court getssupports for the aforesaid conclusion in Nagendra Nath Bera vsCommissioner of skills Division and Appeals reported in AIR 1958 SC398 wherein it was held by the Apex Court that under Article 226,the power of interference may extend to quashing of impugned orderon the ground of a mistake apparent in the face of the record. Thisis a classic case where the mighty used its powers to get rid offthe possession persons whose rights are protected by a statute. Itis well settled Law that even an encroacher cannot be dispossessedexcept by due process of Law. When that is the position, the fourthRespondent cannot be allowed to contend imaginary possession by itwithout proving as to how the possession of the property was takenfrom the cultivating tenant. The evidence available on record showthat the petitioners continue to be in possession of the disputedlands as "Cultivating Tenants" and the first respondent is not inpossession of the same.