Anandam (Died) vs Mr.N.Sivasubramaniam (Died)
2021 Latest Caselaw 4032 Mad

                                                                       S.A.Nos.889/1999 & 1946/2000

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATE: 17.02.2021

                                                    CORAM:

                           THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                      S.A.Nos.889 of 1999 and 1946 of 2000

                 1.Anandam (Died)
                 2.Mrs.Gunavathi
                 3.A.Wilson
                 4.A.Shakila
                 5.A.Balan
                 6.Suguna
                 7.Gopi
                 8.Kalpana
                 9.Subaanandam
                   (Appellants 2 to 9 are brought on record as the
                   LRs of deceased sole appellant vide Court order
                   dated 03.10.2016 made in C.M.P.(MD)Nos.
                   7319 to 7321 of 2016 and order dated 27.09.2016
                   made in C.M.P.7870 to 7872/2016 respectively)        ... Plaintiffs/respondents/

Appellants in both S.As.

Vs.

1.Mr.N.Sivasubramaniam (Died)

2.S.Saraswathi

3.S.Narayanasivakumar (Respondents 2 and 3 are brought on record as the

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

LRs of deceased sole respondent vide Court order dated 03.10.2016 made in C.M.P.(MD)Nos.

7322 to 7324 of 2016 and order dated 27.09.2016 made in C.M.P.7873 to 7875/2016 respectively) ..Defendants/Appellants/ Respondents in both S.As.

PRAYER in S.A.No.889 of 1999: Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.9/93 dated 24.09.1998 on the file of the Sub-Court, Tuticorin, reversing the judgment and decree made in O.S.No.569 of 1991 dated 28.07.1992 on the file of the Addl. District Munsif Court, Tuticorin.

PRAYER in S.A.No.1946 of 2000: Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.23 of 2000 on the file of Additional District Judge and Chief Judicial Magistrate, Tuticorin dated 20.07.2000 confirming the judgment and decree passed in O.S.No.167 of 1997 on the file of the Principal District Munsif Court, Thiruchendur, dated 23.08.1999.

For Appellants : Mr.S.Ramesh for M/s.V.Rahavachari (In both S.As) For Respondents : Mr.M.P.Senthil, for R2 & R3 (In Both S.As) R1-Died

COMMON JUDGMENT

Aggrieved over the decree and judgment of the first appellate Court

reversing the decree granted by the trial Court for permanent injunction, S.A.No.

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

889 of 1999 is filed, whereas the S.A.No.1946 of 2000 is filed as against the

concurrent finding of the trial Court dismissing the suit.

2. The brief facts leading to the filing of the Second Appeal No.889 of

1999 are as follows:

The suit property originally belonged to one Chelladurai Nadar and he

has mortgaged the property to one Sakthivel Marthandam on 03.03.1972. Again

the said Chelladurai Nadar has made over the mortgage to the said Sakthivel

Marthandam on 19.08.1974. Thereafter, the said Sakthivel Marthandam was in

possession and enjoyment of the property. The said mortgagee has leased out the

property in favour of the plaintiff to cultivate the lands by raising shadow crops at

the rate of Rs.425/- per year. The plaintiff has also registered his name as a

cultivating tenant before the authority on 06.08.1983 and is continuing in

possession of the property as a tenant. The defendant has purchased the suit

property on 13.08.1982 and in the front side of the suit property, there are three

shops situate, bearing Door Nos.74, 75 and 76. The plaintiff is also running a

shop in Door No.74. The defendants has filed an application to evict the tenancy

in respect of Door Nos.74, 75 and 76. The defendant has tried to evict the plaintiff

from the suit property. Hence, the suit.

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

3. Denying the allegations in the plaint, it is the contention of the

defendant that the suit has been filed without impleading all the tenants in the suit

property. The alleged lease by the mortgagee is also denied and infact, the

mortgage was made over to one Indirani, W/o. Sakthivel Marthandam and she was

in possession of the property. The alleged registration is not valid in the eye of

law. The plaintiff was never doing cultivation in the property in question. The

other tenants are not impleaded in the suit. The defendant infact, is in possession

of 19 cents and only in order to delay the eviction proceedings, this suit has been

filed. Hence, prayed for dismissal of the suit.

4. Based on the above pleadings, the trial Court framed the following

issues:

1. Whether the lease hold right obtained by the plaintiff in respect of the suit property is valid?

2. Whether the defendant has any right to led in the entire suit property in lease?

3. Whether the suit is bad for non-joinder of necessary parties/owners of the suit property?

4.To what other reliefs, the plaintiff is entitled to?

5. Whether the plaintiff is entitled to get the relief of injunction?

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

5. Before the trial Court, on the side of the plaintiff, he himself was

examined as P.W.1 and Ex.A1 to A7 were marked. On the side of the defendant,

he himself was examined as D.W.1 and one document was marked as Ex.B1. On

behalf of the Court, Ex.C1 and C2 were marked.

6. The trial Court, after considering the entire materials, has decreed the

suit taking note of the registration made under the 'Tamil Nadu Agricultural Lands

Record of Tenancy Rights Act, 1969 (Act 10 of 1969)' [hereinafter referred to as

'Act 10 of 1969'] and granted injunction. The first appellate Court, however, found

that the plaintiff is not entitled to any injunction and the entry made under Act 10

of 1969, has been obtained behind the back of the owner of the property. Hence,

dismissed the suit filed for permanent injunction. As against the judgment and

decree of the first appellate Court, S.A.No.889 of 1999 has been filed.

7. The brief facts leading to the filing of S.A.No.1946 of 2000 are as

follows:

The plaintiff, who claims that he is cultivating the lands and has a right

of easement through the second schedule of property, has filed a suit for

declaration to declare the easement right over the second schedule of property.

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

8. The defendant, denying the allegations made in the plaint, prayed for

dismissal of the suit.

9. Based on the above pleadings, the Trial Court has framed the

following issues:

1. Whether the plaintiff has any right to enjoy the half portion of the suit property?

2. Whether the plaintiff is entitled to get the relief of declaration and permanent injunction in respect of second schedule of property?

3. Whether the defendant is entitled for any order towards costs?

4. To what other relief, the plaintiff is entitled to?

10. Before the trial Court, on the side of the plaintiff, P.W.1 to P.W.3

were examined and Ex.A1 to Ex.A8 were marked. On the side of the defendant,

he himself was examined as D.W.1 and Ex.B1 to Ex.B8 were marked.

11. The trial Court, after considering the materials available on record,

dismissed the suit. As against the same, A.S.No.23 of 2000 has been filed. The

first appellate Court has also dismissed the appeal. As against the concurrent

finding of both the Courts below S.A.No.1946 of 2000 is filed.

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

12. While admitting the Second Appeal in S.A.No.889 of 1999, the

following substantial question of law has been framed:

'Whether the Lower Appellate Court was right in going into the question whether recording of the name of the appellant/plaintiff as a cultivating tenant was legal or not in view of the bar under Section 16-A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969?

13. While admitting the Second Appeal in S.A.No.1946 of 2000, the

following substantial question of law has been framed:

'In view of the fact that as on date, the plaintiff has an order in his favour in respect of the land covered under schedule 3 of the plaint under the provisions of Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969, can the defendant be compelled in law relying upon the definition of 'land' under Section 2 of the Tamil Nadu Cultivating Tenants Protection Act to provide a right of way to the plaintiff to reach is leasehold land through the property descirbed in schedule 2 of the plaint?

14. The learned counsel appearing for the appellants submitted that

Ex.A1 and Ex.A2 filed in S.A.No.889 of 1999 clearly shows that the suit property

was mortgaged in favour of one Sakthivel Marthandam and he is in possession of

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

the property by cultivating the same. The said mortgagee has leased out the

property in favour of the plaintiff. The plaintiff is cultivating the same by raising

shadow crops and he has also filed an application to record his name as a tenant

under Act 10 of 1969. Ex.A4, proceedings of the Tahsildar clearly shows that the

mortgagee was shown as a respondent and after due enquiry, the name of the

plaintiff has been recorded as a tenant. Hence, it is the contention of the learned

counsel appearing for the appellants that once the name of a person entered in the

Register as per Act 10 of 1969, there will be a presumption as to the correctness of

the entries made in the Register and therefore, the Civil Court cannot go into the

question with regard to the entries and correctness of the entries made under Act

10 of 1969. Hence, it is his contention that the trial Court, after analysing the

entire the documents, granted injunction, whereas, the first appellate Court,

disbelieved the entry. Going to the validity of the entries is beyond the jurisdiction

of the first appellate Court. Hence, it is his contention that the Civil Court ought

not to have decided the validity of the entries. Admittedly, challenging the

proceedings of the Tahsildar, Thiruchendur, appeals have also been filed by the

respondents and a Writ Petition has also been filed and the same got dismissed. In

such view of the matter, the first appellate Court had non-suited the plaintiff on the

ground that the entries have been obtained fraudulently and the same cannot be

sustained in the eye of Law.

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

15. It is the further contention of the learned counsel appearing for the

appellants that there is no evidence to show that the mortgaged money has been

discharged and the property has been redeemed. Hence, it is the contention of the

learned counsel appearing for the appellants that the judgment of the first appellate

Court is not based on proper appreciation of evidence and Law. It is his further

contention that now they have been forcibly dispossessed from the property and

the application filed for mandatory injunction was also dismissed by the first

appellate Court. Hence, it his submission that the trial Court judgment be

restored. It is his further submission that the second suit with regard to the

claiming of easement right is always subject to the result of the first suit, which is

filed for permanent injunction.

16. The learned counsel appearing for the respondents submitted that the

appellants having suffered a decree for eviction in a previous round of litigation in

respect of the building which is just adjacent to the present suit properties,

manipulated the entries with the connivance of the mortgagee and filed the present

suits by indirect method. The eviction order passed against him in the previous

occasion in R.C.O.P.No.25 of 1983, have reached its finality and the SLP, filed as

against the same, was also dismissed. Only in order to prevent the execution, the

present suits have been filed. Hence, it is the contention of the respondents that

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

even during the pendency of the suit, the earlier order of the Rent Controller has

been put into execution and the plaintiff has been evicted from the premises. It is

the further contention of the learned counsel appearing for the respondents that the

presents suits are nothing, but mere an attempt to thwart the Rent Controller

proceedings. Therefore, merely on the basis of the entries, which was obtained

behind the back of the owner deceptively cannot give any right and liability under

the Law. The presumption under Law cannot be attached to Ex.A4, since such

entries are not based on a proper enquiry and are not genuine entries. The

presumption of such entry can be drawn only as against the genuine entries and

not against the entries obtained deceptively. Hence, prays for dismissal of the

appeals. In support of his submission, he relied upon the following judgments:

1. A.V.Papayya Sastry and others Vs. Government of A.P and others

reported in (2007) AIR (SC) 1546; and

2. Jayarama Naidu Vs. Meenakshi Ammal and another reported in

1999 (1) CTC 566.

17. From the materials placed, it is seen that the plaintiff was inducted

as a lessee by the mortgagee in respect of 48 cents of the land. It is an undisputed

fact that one of the building, adjacent to the present suit properties, was in

possession of the plaintiff and eviction proceedings has also been taken, which has

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

reached its finality. It is not disputed by both sides that the possession was taken

pursuant to the Rent Control proceedings, during the pendency of the appeal

before the first appellate Court. Be that as it may, it is the main contention of the

plaintiff that he is a cultivating tenant. The original owner of the property has

mortgaged the property to one Sakthivel Marthandam and the said Sakthivel

Marthandam, said to have leased out the property in favour of the plaintiff. On

perusal of Ex.A1 and Ex.A2, the mortgage deeds, makes it very clear that what

was mortgaged in favour of Sakthivel Marthandam is only a house site. Recital in

those documents makes it very clear that the subject matter of the mortgage was

only a vacant house site. Therefore, using the above lands for agricultural or

horticulture is highly improbable. It is not the case of the plaintiff that the original

owner has inducted him in to possession of the property. The contention is that he

was in possession as a lessee only through the mortgagee. When the mortgage

itself in respect of a vacant house site, the mortgagee again transferring the interest

in the immovable property to a lessee highly improbable. However, the alleged

lease deed between the mortgagee and the plaintiff has not seen the light of the

day.

18. In the proceedings of the Tahsildar in T.R.No.5 of 1981, dated

06.08.1983, which was marked as Ex.A4, the name of the plaintiff has been

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

recorded as a tenant. It is curious to note that the respondent in the above

proceedings is none other than the original mortgagee. The title owner has not

been shown as a respondent. It is also to be noted that as on the date of alleged

entry, the original mortgagee has already assigned the mortgage in favour of his

wife Indirani. It is also admitted by both parties. When a person had no interest in

the immovable property, then the transferring of his right in favour of the lessee is

highly improbable. Though the authorities under Act 10 of 1969 alone are

competent to make such entries, merely because such entries are made at the

behest of some body without proper enquiry or without hearing the original

owners, such entries cannot be presumed to be genuine. The object of the Act as

envisaged under Section 15 of Act 10 of 1969 is only in respect of genuine entries

made as per Law and not to the entries made deceptively and behind the back of a

person, who had no right or interest in the immovable properties. Therefore, it

cannot be said that the powers of Civil Courts are totally ousted, merely because

the entries are made under Act 10 of 1969. When there is no relationship of

landlord and tenants between the owner and the so called person, who gain such

entry, the power of Civil Courts cannot be ousted merely on the basis of the entries

recorded under the Act 10 of 1969, which is also without any proper enquiry and

such entries were deceptively made. It is also relevant to note that the respondent

herein had purchased the property through Ex.A3, dated 13.08.1982. The plaintiff

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

is not a stranger and already there were proceedings between the defendant and the

plaintiff and eviction proceedings were continued by the respondents herein,

which resulted in eviction of the plaintiff.

19. Therefore, having known that the respondent has become the owner

of the property, as early as on 13.08.1982, registering his name as a tenant in the

year 1983 i.e., on 06.08.1983, makes it very clear that such entries are nothing but

a result of the fraud and deception by suppressing material facts. Instead of

showing the name of the original owner as respondent showing the name of the

mortgagee as respondent when he has already assigned the right in favour of his

wife Indirani and obtaining entries, in the view of the Court is nothing, but by

playing fraud on the authorities. Therefore, no presumption can be attached or

drawn to such entries. Therefore, the Civil Court is powerless to go into the fraud

committed and deception played, while obtaining such entries under the Act 10 of

1969. It is also now admitted that the plaintiff is also not in possession of the

property. Though it is contended by the appellants that they were forcibly

dispossessed, it is to be noted that in the previous litigations, he was evicted from

the building occupied by him, which is just adjacent to the present properties.

20. In such view of the matter, this Court is of the view that merely on

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the basis of Ex.A4 proceedings, one cannot claim right as a cultivating tenant.

Except, Ex.A4, there are no other materials available to show that lands were

under cultivation continuously. In such view of the matter, the judgment of the

first appellate Court does not require any interference. Accordingly, the questions

of law are answered against the appellants.

21. In the result, S.A.No.889 of 1999 is dismissed.

22. In so far as S.A.No.1946 of 2000 is concerned, admittedly, both the

Courts below have found that the plaintiff is not entitled to any relief, as the

plaintiff has failed to establish that he is a cultivating tenant and entries are made

deceptively and therefore, claiming easement right over the second schedule of

property does not arise at all. Accordingly, the findings of both the Courts below

in that aspect also stands confirmed. Accordingly, S.A.No.1946 of 2000 also

stands dismissed. No costs.

17.02.2021

Index : Yes/No Internet : Yes/No vsm

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

To

1.The Subordinate Judge, Tuticorin.

2.The Addl. District Munsif, Tuticorin.

3.The Additional District Judge and Chief Judicial Magistrate, Tuticorin.

4. The Principal District Munsif Court, Thiruchendur,

5 .The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

http://www.judis.nic.in S.A.Nos.889/1999 & 1946/2000

N.SATHISH KUMAR, J.

vsm

S.A.Nos.889 of 1999 and 1946 of 2000

17.02.2021

http://www.judis.nic.in