Madras High Court
S.Palanisamy Gounder vs A.Kappana Gounder ..1St on 27 January, 2021
S.A.No.1595 of 2000
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.01.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.1595 of 2000
S.Palanisamy Gounder ..Appellant/1st Respondent/
1st Defendant
Vs.
1.A.Kappana Gounder ..1st Respondent /Appellant/Plaintiff
2.Malliah Gounder
3.Lakshmanamurthy ..Respondents 2 &3 / Respondents 2 & 3
/Defendants 2 & 3
PRAYER : Second Appeal filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree in A.S. No.45 of 1992 on
the file of the dated 30.08.1993, confirming the Judgment and Decree in
O.S.No.520 of 1982 dated 20.12.1991, on the file of the Subordinate
Court, Periyakulam, District Munsif Court, Uthamapalayam.
1/10
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S.A.No.1595 of 2000
For Appellant : Mr.R.Suriyanarayanan
For R-2 : No Appearance
For R-1 & R-3 : Dismissed vide court order,
dated 13.11.2019
JUDGMENT
Aggrieved over the reversal finding of the First Appellate
Court, the present Second Appeal has been filed.
2.The parties are arrayed in the Second Appeal, as per their
own ranking before the Trial Court.
3.The brief facts leading to the filing of the suit are as
follows:
The suit property originally belonged to one Perumal
Chettiyar. After his death his wife and children have leased out the
property to the Plaintiff and plaintiff is in enjoyment of the property for
more than 7 years and cultivating the lands. When the wife of the
Perumal Chettiyar died, the third defendant and others, the children of
the said Valliammal required to hand over the possession to them. As
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S.A.No.1595 of 2000
the plaintiff refused to hand over the possession, the defendants made an
attempt to enter into the property on 10.05.1982. It is also the
contention of the plaintiff that an application for registration of the
tenancy rights was also pending before the Tahsildar in application No.
40 of 82 and hence, the suit for injunction.
4.The defendants 1 and 3 denied that the plaintiff is a
cultivating tenant. It is their contention that the third defendant has sold
his 1/3rd share in favour of the 1st defendant on 04.05.1992. Similarly,
the brothers of the third defendant also conveyed the property to the
second defendant, in respect of their shares much prior to the filing of
the suit. In the alleged application, they have not been made as a party.
They are in possession of the properties. The plaintiff is never in
possession of the property. The second defendant has filed a statement
to the effect that the plaintiff is in enjoyment of the property. Since the
plaintiff is aggrieved to hand over the property purchased by the second
defendant, However, filed the present suit and prayed for dismissal of
the suit.
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S.A.No.1595 of 2000
5. Based on the above pleadings, the Trial Court has framed
as many as two issues. The parties went on trial. On the side of the
plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 and A.2 were
marked. On the side of the defendants, D.W.1 and D.W.2 were
examined and Exs.D.1 to D.6 were marked.
6. Based on the evidence and materials, the Trial Court has
found that the plaintiff has not proved his possession in respect of the
suit property as a cultivating tenant and dismissed the suit. The first
Appellate Court has allowed the appeal, mainly on the ground that the
second defendant has admitted the possession of the plaintiff and D.W.1
also admitted in other proceedings about the possession of the plaintiff.
As against the judgment of the first Appellate Court, the present second
appeal is filed.
7.Heard, the learned counsel for the appellant. There is no
representation for the respondents in the last hearing and today also,
there is no representation for the respondents.
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S.A.No.1595 of 2000
8.While admitting the Second Appeal, the following
substantial questions of law have been framed for consideration :-
1) Whether the lower appellate Court's
finding is vitiated by not considering the sale
deed viz., Exs.A.2 dated 04.05.1982 and
Ex.B.6 dated 06.05.1982 ? and
2) Whether the lower appellate Court is right
in considering the oral evidence of P.W.2
Mr.Ramamurthy when the first respondent /
plaintiff himself did not prove his case either
by oral or by documentary evidence ?
9.The learned counsel appearing for the appellant would
submit that the plaintiff claiming as a cultivating tenant, has not proved
that he is a cultivating the property by physical labour and no
documents was also filed to prove his tenancy. The alleged application
filed before the authority also dismissed and reached its finality. Merely
on the basis of D.W.2, who is none other than the son-in-law of the
plaintiff, his possession cannot be presumed, whereas, the first
appellate Court has presumed the possession and granted injunction and
hence, prayed for allowing the second appeal.
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S.A.No.1595 of 2000
10.I have Perused the entire materials.
11. The suit has been laid mainly on the ground that the
plaintiff is a cultivating tenant under One Suruliammal and his children
and he is in possession for more than 7 years. Except Ex.A.1, xerox
copy of the order passed by the Revenue Court, remanding the matter,
no other documents was filed to show that the plaintiff was infact
cultivating the lands continuously as a cultivating tenant. The evidence
of P.W.1 was analysed by the District Munsif, wherein, the plaintiff,
himself has admitted that he has not known the nature of the property in
Survey Number etc., and what was the extent that was in his possession,
is not explained by the plaintiff. When the plaintiff’s claimed to be a
cultivating tenant for more than 7 years, his conduct in deposition
before the Court is not even knowing the extent, area and survey
number in which he is cultivating the land and as such, his contention
that he is in possession of the property for more than seven years, is
highly unbelievable. Besides, no other documents filed to show that he
is in possession of the property, except contending in pleadings. Ex.A.1
would indicate that originally an application has been filed for
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S.A.No.1595 of 2000
registering the plaintiff as a tenant, which appears to be dismissed and
on appeal, the matter has been remanded.
12. Now, it is the submission of the learned counsel for the
appellant that the application filed before the Authority has been
dismissed and has reached its finality and the writ petition filed against
the same was also dismissed. However, no document has been filed.
13.Be that as it may, on the basis of documents filed by the
plaintiff, this Court cannot come to the conclusion that the plaintiff has
proved his possession. D.W.2 is none other than the son-in-law and
therefore, his stand will not help the plaintiff to prove his possession.
The plaintiff has to prove that he is in possession and cultivating the
lands by contributing physical labour or by any members of the family.
But in this case, no iota of evidence was produced by the plaintiff.
14.That view of the matter the lower appellate court
granting injunction, merely, on the basis of evidence of D.W.1 appears
to have given an evidence in the revenue proceedings and appears to
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S.A.No.1595 of 2000
have admitted the possession and swayed away by such admission and
the evidence of D.W.2, who is none other than the son-in-law and
granted permanent injunction. It is to be noted that no previous
proceedings or evidence have been placed before this Court and D.W.1
evidence also indicates that the plaintiff has come to the possession only
on the basis of the interim orders obtained in his favour and that also
has not been considered by the first appellate court.
15. In such view of the matter, the finding of the first
Appellate Court is without proper appreciation of oral and documentary
evidence. The plaintiff claim benefits as a cultivating tenant, but failed
to prove that not only his possession but also the status as cultivating
tenant. Such view of the matter, the judgment of the First Appellate
Court, is not sustainable in the eye of law. Accordingly, the second
appeal is allowed and the judgment of the first appellate court is set
aside and the Trial court order is restored.
16. In the result, the second appeal is allowed and the
Judgment and decree of the First Appellate Court is set aside and the
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S.A.No.1595 of 2000
suit in O.S.No.529 of 1982 is dismissed. However, there shall be no
order as to costs.
27.01.2021.
Internet : Yes/No
Index : Yes/No
rm
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 Court,
Periyakulam.
2.The District Munsif Court,
Uthamapalayam.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1595 of 2000
N.SATHISH KUMAR, J.
rm
Judgment in
S.A.No.1595 of 2000
27.01.2021
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