Mrs.K.Baby v. D.Chakravarthi & Ors.

Civil Revision Petition is filed against the fair and decretal order, dated 23.11.2004 passed in I.A.No.264 of 2004 in O.S.No.38 of 2003 on the file of the District Munsif, Nannilam, Thiruvarur District. For Petitioner : Mr.T.S.Rajmohan For Respondents : No appearance O R D E R Challenging the validity and correctness of the order dated 23.11.2004 of the District Munsif, Nannilam, made in I.A.No.264 of 2004 in O.S.No. 38 of 2003, the present Civil Revision Petition has been filed. 2. Facts leading to the revision petitioner are follows: Plaintiff is the revision petitioner. She has filed O.S.No.38 of 2003 for perpetual injunction, restraining the defendants/respondents from interfering with her possession of the suit property. According to the plaintiff, she is the tenant with respect to the lands described as Item Nos.1 to 4 of the suit property and sub-tenant in item Nos. 5 to 7 of the suit property, which are wet lands and managed by Sirpuliyur Kirbasamudra Perumal Devasthanam. She had been regular in payment of rent to the temple, as a cultivating tenant in respect of above mentioned items of property. One G.Dakshinamurthy, father of defendants 1 to 5 had been cultivating the lands in items 5 to 7, which were actually sub-leased by first defendant, one of the sons of the said G.Dakshinamoorthi in 2001 to the plaintiff. According to the plaintiff the first defendant has every right to sub-lease items 5 to 7 to her, as the father of the first defendant had executed a Will in favour of the first defendant in respect of the above items of property. As a lawful sub-tenant of items 5 to 7 in the suit property, the plaintiff had been paying the rent in respect of those items. For the reasons not known to the plaintiff, the defendants 2 to 5 have interfered with her possession in respect of items 5 to 7 of the property in question in an unlawful manner. Being the beneficiary of the Tamil Nadu Cultivating Tenants Protection Act, the plaintiff was forced to approach the court below by way of a civil suit for redressal of her grievance.

3. Rebutting the allegations, defendants 2 and 5 have filed a common written statement interalia contending that the documents stated to have been filed by the first defendant in an earlier suit against the second defendant claiming ownership of the suit property were rejected by the court below holding that it is a concocted Will alleged to have been executed by the father of the first defendant in his favour and so he could not claim ownership in respect of the property, adjacent to the temple and the thatched shed house constructed on therein the wet land, by merely producing the documents relating to electricity connection. Having frustrated by the judgement of the Court below, disentitling his ownership in the suit property, the first defendant in connivance with the husband of the plaintiff had again approached the Court below by way of another vexatious suit. That apart, the complaint alleged to have been given by the wife of the first defendant, as desired by the first defendant, against defendants 2 to 5 was also rejected by the Court below.

4. It is further contended by the defendants 2 and 5 in the written statement that actually the 5th defendant inherited his rights in respect of items 5 to 7 of the property, as per the Will executed by Dhakshinamoorthy and since fifth defendant was not a party to the litigation, there was no occasion for the court below to decide the correctness and legality of the will. According to the defendants, the property belongs to Kirubasamudra Perumal temple.

5. The documents, dated 01.07.2001 filed by the plaintiff and the orders of the local body authorities are all fabricated and they were filed by the plaintiff with the help of her close associates only to defraud the real owner. They do not therefore clothe any right on the plaintiff with respect to her claim on the items of property. In compliance of the interim directions given by the Court below, the 5th defendant was not able to make use of items 5 to 7 of the property and there is a possibility of misuse of the order by the plaintiff along with the first defendant, defendants 2 to 5 have filed a separate petition for appointment of an Advocate commissioner and also for a direction to deposit the income derived from those items of property in Court.

6. According to defendants 2 to 5, there is absolutely no necessity for describing items 1 to 4 of the property in the suit, as they do not relate to the present dispute. The original documents showing the lease itself establish the real owner of the scheduled items of property under dispute. The local authorities and the temple authorities also act as per the directions of the plaintiff and the first defendant, which is not legally tenable.

7. While the matter stood thus, the plaintiff took out an application, reiterating the contentions in the suit and prayed for necessary permission to file certain documents in support of her claim regarding her ownership of the property in dispute.

8. Refuting the claims and contentions of the plaintiff/petitioner, the second defendant filed a separate written statement alleging that all the documents sought to be filed by the plaintiff/petitioner cannot at all be acted and relied upon as they are not genuine and fabricated.

9. The Court below rejected the contention of the petitioner on the ground that the documents sought to be produced by the petitioner are not in the prescribed format, as per the provisions of sub-section 4(b)(2) of Tamil Nadu Act 25/1955 and that necessary stamp duty must have been paid by the petitioner to establish her lease-hold rights as sub-tenant in respect of the disputed items of property. Accordingly I.A.No.264 of 2004 files by the petitioner was dismissed by the Court below, against which the present civil rivision petition has been preferred.

10. Learned counsel appearing for the revision petitioner would contend that the document, which is very crucial for establishing the title of the plaintiff in respect of the specified items of property, was not given due consideration by the court below, which had obviously misconstrued the relevant provisions of the Tamil Nadu Cultivating Tenants Production Act. According to learned counsel for the petitioner the letter of assignment dated 25.05.1988 was executed by Late Dakshinamurthy in in favour of his son, the first respondent, who in turn has transferred his leasehold rights in favour of one of his sons and the deed of assignment had already been filed along with the plaint on which no stamp duty need be paid by the assignee. Learned counsel for the revision petitioner drawing my attention to the verdict of the Apex Court in Thaku Kishan Singh V. Arvind Kumar 1994 (6) SCC 591 would urge that it is duty of the Court below to find out whether the possession of a co-owner, who had been using the property for agricultural purpose is lawful or otherwise under the strength and support of the letter of assignment by cogent and convincing evidence,both oral and documentary. The Court below ought to have noticed that the agricultural leases are completely excluded from the operation of the Transfer of Property Act. In such circumstances the order of the Court below suffers from illegality and infirmity and needs interference of this Court.

11. I have given my careful consideration to the entire materials available on record and the contentions of Learned counsel appearing for the revision petitioner. When the matter came up for hearing on many occasions, there was no representation for the respondents and hence this court after hearing the learned counsel appearing for the petitioner and perusing the documents, passes the following orders on the merits of the case.

12. Before adverting to the facts of the case, Section 4-B of the Tamil Nadu Cultivating Tenants Protection Act, 1955 is extracted below: "4-B. Execution of lease:- (1) In the case of every tenancy agreement entered into after coming into force of the Tamil Nadu Cultivating Tenants Protection (Amendment) Act, 1956, between a cultivating tenant and a landlord, a lease deed shall be executed in triplicate in the prescribed form, within a reasonable time after the commencement of such tenancy, specifying the name and description of the cultivating tenant, the name (if any), survey number, description and extent of the land leased out, and the terms of the tenancy; and shall be signed both by the landlord or his agent and by the cultivating tenant. One of the three copies shall be kept by the landlord, one shall be kept by the cultivating tenant and the third shall be caused to be lodged in the Taluk office by the landlord or his agent within a fortnight of the date on which the cultivating tenant signs it: Provided that if the landlord or the cultivating tenant refuses or delays unreasonably to execute the lease deed, it shall be open to the cultivating tenant or the landlord, as the case may be, to lodge the deed in the Taluk Office with a declaration that the other party has refused or delayed unreasonably to execute it. (2) No stamp need be affixed to the lease deed. (3) In the case of any tenancy, if the landlord or his agent or the cultivating tenant refuses to sign or fails to lodge the lease deed in accordance with the provisions of sub-section (1), the Revenue Divisional Officer may impose on the landlord or the cultivating tenant, as the case may be, a penalty which may extent to fifty rupees; and any penalty so imposed may be recovered as if it were an arrear of land revenue."

13. It is the case of the respondents that the lease deed has to be executed by the landlord, namely the Temple, to the tenant, that it shall be signed by both parties in triplicate in the prescribed format and that two copies should be kept in Taluk Office. Admittedly the disputed document is not executed by the landlord in the prescribed format and it is also not stamped and therefore it can be marked subject to objection. The document sought to be marked is only with reference to proof of possession and beyond which, whether the petitioner or the respondent is entitled to the suit property has to be decided by the Court, at the time of trial on appreciation of both oral and documentary evidence and in accordance with law.

14. The lower court rejected the application for reception of additional documents filed by the petitioner/plaintiff on the ground that the documents sought to be produced by the petitioner are not in the prescribed format, as per the provisions of section 4 (b)(2) of Tamil Nadu Act 25/1955 and that necessary stamp duty has not been paid by the petitioner to establish her lease-hold rights as sub- tenant in respect of the disputed items of property. Of course as per Section 4(b)(2) of the TamilNadu Act 25 of 1955, lease agreement in respect of agricultural lands can be executed between the landlord and the tenant in the prescribed format but no stamp is necessary. It is settled law that parties should be permitted liberally to substantiate their case, and the Court can go through the entire facts and come to the conclusion, on evidence. The allegations whether the document is concocted or relevant is subsequent matter of proof in the trial and not at the stage of reception of document. Therefore, in view of the fact that sufficient opportunity has to be given to both parties to substantiate their case, the order passed by the District Munsif, Nannilam, dated 23.11.2004 made in I.A.No.264 of 2004 in O.S.No.38 of 2003, rejecting the reception of the document is set aside and the learned District Munsif, Nannilam is directed to receive the document subject to objection. Further, the respondents are permitted to file their objections by way of additional written statement with regard to the disputed document, if they are advised to do so. Accordingly, the Civil Revision Petition is allowed. No costs. Consequently, the connected C.M.P.No.20905 of 2004 is closed.

27.06.2008 To The District Munsif, Nannilam, Thiruvarur District. S. MANIKUMAR, J. Skm C.R.P.(PD)No.2172 of 2004

27.06.2008