Madras High Court
Mohammed Tahir vs Nowshath Ali on 17 December, 2021
S.A.781 & 782 of 1999
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.12.2021
CORAM
THE HON'BLE MRS.JUSTICE J.NISHA BANU
SECOND APPEAL Nos.781 and 782 of 1999
S.A.No.781 of 1999
Mohammed Tahir ..Appellant/Defendant
Vs
Nowshath Ali ..Respondent/Plaintiff
S.A.782 of 1999:-
Mohammed Tahir ... Appellant/
Plaintiff
Vs.
1.Ramu
2.Nowshath Ali ... Respondents
st th
/1 and 4 defendants
Prayer in S.A.No.781 of 1999:- Second Appeal filed under Section 100 CPC
against the judgment and decree of the Principal Sub Judge, Mayiladuthurai
dated 30.04.1996 made in A.S.No.13/95 confirming the judgment and decree of
District Munsif, Mayiladuthurai dated 21.10.1994 made in O.S.No.651/1988.
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S.A.781 & 782 of 1999
Prayer in S.A.782 of 1999:- Second Appeal filed under Section 100 CPC
against the judgment and decree of the Principal Sub Judge, Mayiladuthuri
dated 30.04.1996 made in A.S.No.12/95 confirming the judgment and decree of
the District Munsif, Mayiladuthurai dated 21.10.1994 made in O.S.No.369/88.
For Appellants : Mr.S.Sounthar
For respondents : Mr.A.Muthukumar
COMMON JUDGMENT
Second Appeal No.781 of 1999 is filed by the defendant in
O.S.No.651 of 1988 against the judgment and decree of the Principal Sub
Judge, Mayiladuthurai dated 30.04.1996 made in A.S.No.13/95 confirming the
judgment and decree of District Munsif, Mayiladuthurai, dated 21.10.1994
made in O.S.No.651/1988.
S.A.No.782 of 1999 is filed by the unsuccessful Plaintiff in
O.S.No.369/1988 against the judgment and decree of the Principal Sub Judge,
Mayiladuthuri dated 30.04.1996 made in A.S.No.12/95 confirming the
judgment and decree of the District Munsif, Mayiladuthurai dated 21.10.1994
made in O.S.No.369/88.
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S.A.781 & 782 of 1999
2. On 16.06.1999, this Court, admitted the Second Appeals on the
following substantial questions of law:-
(i) Whether Ex.B.1 is invalid and inoperative by reason of the bar
imposed under the Foreign Exchange Regulation Act?
(ii) Whether the lower courts were justified in rejecting the plea of
tenancy for want of registration ?
3. Second Appeal Nos.781 and 782 of 1999 arise out of the concurrent
judgments passed in O.S.Nos.651 and 369 of 1988 and A.S.Nos.12 and 13 of
1995. The appellant in the above second appeals, is the sole defendant in
O.S.No.651 of 1988, wherein, the plaintiff sought for the relief against this
defendant for permanent injunction restraining the defendant and his men or
agents from in any way causing interference to plaintiff's possession and
enjoyment of the suit properties.
4. In the plaint in O.S.No.651 of 1988, the plaintiff who is represented by
the Power Agent, averred that he is in possession of the 'A' and 'B' schedule
properties. The appellant/defendant is none other than the brother of the
plaintiff. Due to family dispute, division of properties taken place. The
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S.A.781 & 782 of 1999
defendant filed O.S.No.369 of 1988. Stating that the defendant is attempting to
cause interference to plaintiff's possession and enjoyment in the suit properties,
the plaintiff filed the suit for permanent injunction.
5. The appellant/defendant filed written statement stating that the alleged
power deed by the plaintiff in favour of Mr.Abdul Waheed is neither true nor
valid nor the same is operative in India. The plaintiff is not in possession and
enjoyment of the suit 'A' Schedule property.
6. Plaintiff in O.S.No.369 of 1988 is the appellant herein and sought for
the relief of permanent injunction restraining the defendants 1 and 2 in any
manner interfering with the peaceful possession and enjoyment of the suit
property by the plaintiff till he is lawfully evicted by due process of law by
means of a permanent injunction. According to the appellant/plaintiff, the suit
property was under the tenancy arrangement of the first defendant herein with
the 3rd defendant on certain agreement. The plaintiff averred that even though
the document provides that the land is given only for 3 years for cultivation and
the terms of the agreement that if the premium is refunded, the plaintiff should
surrender his right and give up possession of the property, but such a clause is
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S.A.781 & 782 of 1999
invalid and unenforceable as the plaintiff is entitled to benefits of Tamil Nadu
Cultivating Tenant's Protection Act. Therefore, the plaintiff is entitled to
remain in possession until he is duly evicted therefrom by due process of law.
According to the plaintiff, 2nd defendant who is the brother of the plaintiff has
been creating all sorts of troubles and inconvenience and obstructions in the
matter of enjoyment of his family properties. The plaintiff submits that the 1 st
defendant and the 2nd defendant have no right to interfere with the plaintiff's
possession and enjoyment of the suit property. It has been further averred that
pending trial, the 2nd defendant died on 01.04.1993. The 4th defendant is the son
of the 2nd defendant.
7. The trial court, taken both the suits in O.S.Nos.369 of 1988 and 651 of
1988 together for trial. After both sides letting in evidence and after hearing
arguments advanced on both sides, the trial court answered the issues framed
by it. The observation of the trial court is that in O.S.No.651 of 1988, two
division of properties is given, however, the suit was dismissed in respect of 'B'
schedule properties since at the time of arguments, no relief is sought in respect
of 'B' schedule property. The trial court given a finding that Ex.B.1 dated
04.07.1988 is a true document and based on that document, 2 nd defendant
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S.A.781 & 782 of 1999
Abdul Wahid taken possession and after the death of 2nd defendant, 4th
defendant Noushad Ali is in possession, however, the exhibits produced on the
side of the plaintiff in O.S.369 of 1988 are not true and created only for the
purpose of suit and the plaintiff in O.S.No.369 of 1988 was never in possession
of the suit property. The subject property belongs to the 3rd defendant in
O.S.No.369 of 1988 and at the time of filing of the suit, she was not in
possession of the property. The trial court given a specific finding that at the
time of filing of the suit, the plaintiff in O.S.No.369 of 1988 was not in
possession of the suit property and therefore, the relief of injunction cannot be
granted. On such a finding, the trial Judge dismissed the suit. The trial judge
thus held that the plaintiff is not entitled to any relief. The trial court decreed
the suit in favour of the plaintiff in O.S.No.651 of 1988/Power Agent.
8. The appellant herein challenged the above findings in A.S.Nos.12 and
13 of 1995. The first appellate court appreciated the evidence, exhibits put
forth by the parties once again and discussed the findings given by the trial
court and concluded that at no point of time, 'A' schedule property was in
possession of the plaintiff in O.S.No.369 of 1988. Further, the first appellate
court concluded that Ex.B.1 dated 04.07.1988 clearly shows that 'A' schedule
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S.A.781 & 782 of 1999
property was in the possession of 2nd defendant and after the death of 2nd
defendant, 4th defendant was in possession.
9. Admittedly, the suit property is a nanja land of an extent of 33 1/3
cents situated in Kadalangudy village in Mayiladuthurai Taluk and originally it
belongs to the 3rd defendant in O.S.No.369 of 1988 and the suit property was
given for cultivating tenancy. The documents produced before the trial court
would go to clearly show that the plaintiffs in O.S.No.651 of 1988/2nd
defendant is in possession and enjoyment of the said property. The trial court
and the First Appellate court given a clear finding that the appellant
herein/plaintiff in O.S.No.369 of 1988 was not in possession of the suit
property at the time of filing of the suit and only the 2nd and 4th defendants in
O.S.No.369 of 1988/plaintiff in O.S.No.651 of 1988 was in possession and
cultivating the land.
10. The learned Counsel for the appellant contended that the courts below
failed to see that any assignment of agricultural cultivating tenancy right need not be
registered and even otherwise, the said document is admissible in evidence to prove
the collateral purpose of proving possession of appellant. The respondent was in
Foreign shore when alleged transfer of lease in favour of him under Ex.B.1. The
courts below erred in interpreting evidence of D.W.1.
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S.A.781 & 782 of 1999
11. In my considered view, the arguments made by the learned counsel for the
appellant is not convincing. The courts below have perused Ex.B.1 and also
considered the oral and documentary evidence let in by both sides and had come to the
definite conclusion that the appellant is not in possession of the suit property nor a
cultivating tenant. It is also clearly made out that even though the respondent
herein/4th defendant in O.S.369 of 1988 and plaintiff in O.S.651 of 1988 was in
Foreign shore for his work, his family members continued in possession of the suit
property and cultivated the land. In this factual finding, I do not find any infirmity or
error warranting interference. On appreciating both oral and documentary evidence,
the courts below have concurrently held that plaintiff in O.S.No.651 of 1988 is in
possession of the suit property. There is no perversity in the concurrent judgments of
the courts below.
12. The appellant has not proved that he is in possession and enjoyment of the
suit property. Since the plaintiff has failed to do so, two courts below have dismissed
the suit. In view of all the above, in this Second Appeal, the questions of law are
answered against the appellant. The questions raised are only on facts which have
been resolved by the courts below concurrently. The courts below were right in
decreeing the suit in favour of the plaintiff in O.S.No.651 of 1988. Thus, this court do
not find any merit in the Second Appeal.
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S.A.781 & 782 of 1999
13. In the result, the Second Appeal fails and the same is accordingly
dismissed.
17.12.2021
Index:Yes/No
nvsri
To
1.The Principal Sub Judge, Mayiladuthurai.
2.The District Munsif, Mayiladuthurai.
3. The Section Officer,
VR Section,
High Court, Madras.
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S.A.781 & 782 of 1999
J.NISHA BANU, J.
nvsri
SECOND APPEAL Nos.781 and 782 of 1999
17.12.2021
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