Madras High Court
Chinnaponnu (Died) vs Mamundi ..1St on 18 January, 2021
S.A.(MD)Nos.309 to 311 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD)Nos.309 to 311 of 2006
and
C.M.P.(MD)No.2410 of 2006
S.A.(MD)No.309 of 2006:-
1.Chinnaponnu (died) ...Appellant/Appellant/Plaintiff
2.Parvathi
3.Minor Deepika Rani
4.Minor Sakres Kasilingam ...Appellants
(Appellants 2 to 4 were brought on record ad legal heirs of the sole appellant vide Court
order dated 01.04.2019)
Vs.
1.Mamundi ..1st Respondent/1st Respondent/
1st defendant
2.Pappathi Ammal ..2 Respondent/ 2nd Respondent/
nd
2nd defendant
3.Rajagopal (died) ..3 Respondent/ 3rd Respondent/
rd
3rd defendant
4.Paulraj ..4 Respondent/ 4th Respondent/
th
4th defendant
5.Balasubraminam ..5 Respondent/ 5th Respondent/
th
5th defendant
6.Susila
7.Kalaiselvi
8.Kalaivani
9.Kalaiselvan
10.Sampathkumar
11.Saraswathi
12.Durairaj ..Respondents
(Respondents 6 to 12 were brought on record as legal heirs of the deceased third defendant vide
order dated 01.04.2019)
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S.A.(MD)Nos.309 to 311 of 2006
S.A.(MD)No.310 of 2006:-
1.Chinnaponnu Ammal (died) ..1st Appellant/1st Appellant/2nd defendant
2.Kasi ..2nd Appellant/4th Appellant/5th defendant
3.Koyilambal ..3rd Appellant/5th Appellant/6th defendant
4.Sevandhi ..4th Appellant/6th Appellant/7th defendant
5.Rajkumar @ Kumar ..5th Appellant/7th Appellant/8th defendant
6.Pachaimuthu ..6th Appellant/8th Appellant/9th defendant
7.Sabila @ Sabeetha ..7th Appellant/9thAppellant/10th defendant
8.Maheswari .8thAppellant/10thAppellant/11th defendant
9.Jayaseela @ Chasil .9thAppellant/11thAppellant/12th defendant
10.Jagadheesan ..10thAppellant/12thAppellant/13th defendant
11.Praba ..11thAppellant/13thAppellant/14th defendant
12.Praveen Nath ..12thAppellant/14thAppellant/15th defendant
13.Parvathi
14.Minor Deepika Rani
15.Minor Sakres Kasilingam .. Appellants
(Appellants 13 to 15 were brought on record as legal heirs of the first appellant vide order
dated 01.04.2019)
Vs.
1.Pappathi ammal ..1st Respondent/1st Respondent/
1st Plaintiff
2.Rajagopal (died) ..2 Respondent/ 2nd Respondent/
nd
2nd Plaintiff
3.Balasubramanian ..3 Respondent/ 3rd Respondent/
rd
3rd Plaintiff
4.Balraj ..4 Respondent/ 4th Respondent/
th
1st Defendant
5.Susila
6.Kalaiselvi
7.Kalaivani
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S.A.(MD)Nos.309 to 311 of 2006
8.Kalaiselvan
9.Sampathkumar
10.Saraswathi
11.Durairaj ..Respondents
(Respondents 5 to 11 were brought on record as legal heirs of the second respondent vide order
dated 01.04.2019)
S.A.(MD)No.311 of 2006:-
1.Chinnaponnu Ammal (died) ..1st Appellant/1st Appellant/1st defendant
2.Kasilingam (died) ..2nd Appellant/4th Appellant/4th defendant
3.Koyilambal ..3rd Appellant/5th Appellant/5th defendant
4.Sevandhi ..4th Appellant/6th Appellant/6th defendant
5.Rajkumar ..5th Appellant/7th Appellant/7th defendant
6.Pachaimuthu ..6th Appellant/8th Appellant/8th defendant
7.Sabila ..7th Appellant/9thAppellant/9th defendant
8.Maheswari .8thAppellant/10thAppellant/10th defendant
9.Jayaseela .9thAppellant/11thAppellant/11th defendant
10.Jagadheesan ..10thAppellant/12thAppellant/12th defendant
11.Praba ..11thAppellant/13thAppellant/13th defendant
12.Praveen ..12thAppellant/14thAppellant/14th defendant
13.Parvathi
14.Minor Deepika Rani
15.Minor Sakres Kasilingam .. Appellants
(Appellants 13 to 15 were brought on record as legal heirs of the first appellant vide order
dated 01.04.2019)
Vs.
1.Pappathi ammal ..1st Respondent/1st Respondent/
1st Plaintiff
2.Rajagopal (died) ..2 Respondent/ 2nd Respondent/
nd
2nd Plaintiff
3.D.Balraj ..3 Respondent/ 3rd Respondent/
rd
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S.A.(MD)Nos.309 to 311 of 2006
3rd Plaintiff
4.Balasubramanian ..4 Respondent/ 4th Respondent/
th
4th Plaintiff
5.Susila
6.Kalaiselvi
7.Kalaivani
8.Kalaiselvan
9.Sampathkumar
10.Saraswathi
11.Durairaj ..Respondents
(Respondents 5 to 11 were brought on record as legal heirs of the second respondent vide order
dated 01.04.2019)
COMMON PRAYER: These Second Appeals are filed under Section 100 of
the Civil Procedure Code, against the decree and judgment made in A.S.No.
154, 155 and 156 of 2002 dated 25.02.2005 on the file of the First
Additional Subordinate Judge, Trichirappalli confirming the decree and
judgment made in O.S.No.2094 of 1993, 2111 of 1994 and 373 of 1993,
respectively dated 15.02.2002 on the file of the III Additional District
Munsif, Tiruchirapalli.
For Appellants : Mr.Maria Roseline
(in all appeals)
For R4 and R5 : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.R.Manimaran
For R6 to R12 : Mr.N.G.A.Nataraj
For R1 : No Appearance
(for S.A.(MD)No.309 of 2006)
For R3 to R11 : Mr.N.G.A.Nataraj
(for S.A.(MD)Nos.310 & 311 of 2006)
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S.A.(MD)Nos.309 to 311 of 2006
COMMON JUDGMENT
These three second appeals have been filed as against the
concurrent findings of the Courts below in a common judgment in A.S.No.
154, 155 and 156 of 2002 dated 25.02.2005 confirming the decree and
judgment made in O.S.No.2094 of 1993, 2111 of 1994 and 373 of 1993,
respectively, dated 15.02.2002.
2. For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
3.The brief facts, leading to the filing of this Second Appeal, are as
follows:-
(i) O.S.No.2094 of 1993 was filed by the first appellant in S.A.
(MD)No.309 of 2006 for permanent injunction in respect the property in
Survey Nos.82/10 and 82/11 covering an extent of 1.10 cents in
Somarasampettai Village and in Survey No.80/2 to an extent of 42 cents in
Malliampatti Vilalge. O.S.No.2111 of 1994 was filed by the respondent Nos.
2, 3 and 5 in S.A.(MD)No.309 of 2006 herein for injunction in respect of
the property in Survey No.80/2 to an extent of 42 cents, which is the
second item of property in O.S.No.2094 of 1993. O.S.No.373 of 1993 was
filed by the respondent Nos.2, 3 and 5 S.A.(MD)No.309 of 2006 for recovery
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S.A.(MD)Nos.309 to 311 of 2006
of possession for the entire extent of 1.10 cents in Survey No.82/10 and
82/11.
(ii) It is the case of the plaintiffs in O.S.No.373 of 1993 and 2111 of
1994, who are one and the same, that the entire property belongs to them.
The defendants in the above suits are their close relatives. Due to their
close proximity, when the first plaintiff had intended to execute a Will in
favour of her daughter, the defendants under the pretext of helping the first
plaintiff, suggested that a Will can be executed. Accordingly, by the
suggestion of the defendants, a Will was prepared and the first plaintiff
went to the Registration Office. While executing the Will on 12.03.1991, the
defendants taking advantage of the illiteracy and the age of the first
plaintiff, has also maneuvered to obtain thump impression in the document
stated to be lease deed. The first plaintiff put thump impression in all the
documents on the instructions of the defendants.
(iii) When the matter stood thus, the second defendant in the
month of May, 1992 made an attempt to enter into the property claiming to
be a tenant under the first plaintiff. Only at that time, the first plaintiff
came to know that the defendants under the pretext of preparing a Will,
have got the thump impression in the documents styled as lease deeds
(yearly lease at the rate of Rs.1,500/- per year) and the lease deeds have
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S.A.(MD)Nos.309 to 311 of 2006
been registered for a period of 10 years. Hence, it is the contention that the
first plaintiff never intended to execute any such document and therefore,
filed the above said suits for delivery of possession and for permanent
injunction restraining the defendants 2 to 4 from interfering with the
peaceful possession and enjoyment in respect of entire property to an extent
of 1.10 acres. It is the further contention of the plaintiffs that the so called
lease deed is created and the plaintiff never intended to execute the lease.
In fact there was a mortgage agreement between the plaintiff and one
Mamundi in respect of the land in S.F.No.80/2 to an extent of 0.42 cents for
a sum of Rs.16,000/- and allowed the said Mamundi to be in possession.
(iv) In O.S.No.2094 of 1993, the plaintiff sought permanent
injunction. The second defendant in her written statement denied the
allegations of the plaintiff. The contention of the plaintiff is that lease deeds
have been executed by the defendants voluntarily not as alleged by them in
their plaint in O.S.No.373 of 1993 and the plaintiff is the cultivating tenant.
It is the contention of the plaintiff that based on the above lease deed, she is
in possession of the entire extent of 1.10 cents in Somarasampettai Village.
4. Based on the above pleadings, the following issues were framed
by the trial Court:-
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S.A.(MD)Nos.309 to 311 of 2006
In O.S.No.373 of 1993:-
(1) Whether the plaintiffs are entitled to the relief of recovery of
possession and enjoyment of the suit property from the defendants?
(2)Whether the plaintiffs are entitled for mesne property?
(3) To what other reliefs?
In O.S.No.2111 of 1994:-
(1) Whether the plaintiffs are entitled for the relief of permanent
injunction?
2) To what other reliefs?
In O.S.No.2094 of 1993:-
(1) Whether the plaintiff is the lessee in respect of the suit
property?
(2) Whether the plaintiff is entitled for the relief of permanent
injunction?
(3) To what other reliefs?
5. Based on the above pleadings, though different suits have been
filed as narrated above, evidence was recorded in O.S.No.373 of 1993. On
the side of the plaintiffs, the first plaintiff in O.S.No.2111 of 1994 and 373 of
1993 was examined as P.W.1 and the second plaintiff in O.S.No.2111 of 1994
and 373 of 1993 was examined as P.W.2 and Exs.A1 to A6 were marked and
on the side of the defendants the plaintiff in O.S.No.2094 of 1993 was
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S.A.(MD)Nos.309 to 311 of 2006
examined as D.W.1 and Murugan, Kathalingam and Nagamuthu were
examined as D.W.2 to D.W.4 and Exs.B1 to B4 were marked.
6. The trial Court after framing necessary issues based on the
pleadings of the parties, dismissed the suit in O.S.No.2094 of 1934 filed for
permanent injunction by the first appellant herein and decreed the suit in
O.S.No.373 of 1993 and 2111 of 1994 filed by the respondents herein. The
First Appellate Court has also confirmed the findings of the trial Court.
Aggrieved over the concurrent findings, the present second appeals have
been filed.
7. While admitting the second appeals, the following substantial
questions of law have framed:-
In.S.A.(MD)No.309 of 2006:-
(1) Whether the Courts below are right in coming to the
conclusion that the burden is on the plaintiff, when the second defendant
had categorically admitted the 'Lease' in favour of the plaintiff?
(2) Whether it is open for the second defendant to contend that
the lease deed marked Ex.B2 dated 12.03.1991 is obtained by
misrepresentation without seeking a prayer to set aside the lease deed,
especially when the lease in favour of the appellant is admitted?
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S.A.(MD)Nos.309 to 311 of 2006
In.S.A.(MD)No.310 of 2006:-
(1) Whether the Courts below are right in coming to the
conclusion that the plaintiff is in possession and enjoyment of the suit
property in the absence of proof of surrender of possession?
(2) Whether the Courts below are right in ignoring the lease deed
in the absence of prayer to set aside the same?
In S.A.(MD)No.311 of 2006:-
(1) Whether the Courts below are right in decreeing the suit for
possession, when P.W.1 has categorically admitted that the defendants are
lessees of the property and only when they have not paid the lease rental,
this suit has been filed?
(2) Whether the Courts below are right in decreeing the suit, in
the absence of prayer to set aside the lease deeds dated 12.03.1991?
8. The learned counsel for the plaintiff in O.S.No.2094 of 1993
vehemently contented that the Courts below has wrongly shifted the burden
on her. Admittedly, the lease deed was a registered one and there is a legal
presumption and validity. Besides, the attesting witnesses were also
examined to prove the lease deed. That apart, as per the lease deed, the
plaintiff is in possession of the property. The lease itself is given for
cultivating the lands. Once lease is given for cultivating the lands, the
plaintiff is entitled to all the benefits under the Tamil Nadu Cultivating
Tenants Protection Act, 1955. This aspect was never dealt with by the
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S.A.(MD)Nos.309 to 311 of 2006
Courts below. The evidence of the attesting witness and the other
documents filed by the plaintiff herein clearly prove that the plaintiff is still
in possession as cultivating tenant, which has not been considered by the
trial Court as well as the First Appellate Court. Hence, it is submitted that
the Courts below were erred in dismissing the suit filed by the plaintiff and
decreeing the suit filed by the defendants. Hence, prayed for allowing these
appeals.
9. The learned counsel appearing on behalf of the plaintiffs in
O.S.No.373 of 1993 submitted that the alleged lease deed is a result of
fraud and misrepresentation. It has been considered by the Courts below.
Admittedly, the first defendant is none other than the plaintiff's sister's
daughter. Other defendants are close relative. The first plaintiff is a rustic
villager, illiterate and aged. On 12.03.1991, a Will has been executed. To
execute the Will, when help of the defendants was sought, the first
defendant had maneuvered to obtain thump impression of the first plaintiff
to get the alleged lease deed be registered. The Courts below analyzed the
entire facts and found that the execution of the documents has not been
established. The burden is on the first defendant, who is in active
confidence, and the same has not been discharged. Hence, it is the
contention that the defendants have no right to claim right under the Tamil
Nadu Cultivating Tenants Protection Act, 1955. It is the further contention
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S.A.(MD)Nos.309 to 311 of 2006
that the suit was filed in the year 1993 and witnesses were examined only in
the year 2000. Even till now, no rent whatsoever has been paid to contend
that she is the cultivating tenant. Further, she was not registered as tenant
as per the The Tamil Nadu Agricultural Lands Record Of Tenancy Rights
Act, 1969 (for the sake of brevity it will be referred to as Act 10 of 1969).
Hence, it is the contention that the appeal has no merits and it is liable to
be dismissed.
10. In the light of the above submissions, in addition to the
substantial questions of law, the following additional substantial question of
law is framed:-
Whether the appellants can claim protection
under the Tamil Nadu Act 10 of 1969 namely, The Tamil
Nadu Agricultural Lands Record of Tenancy Rights Act,
1969 in the second appeal stage?
11. As narrated above, it is not in dispute that the suit property
originally owned by the plaintiffs in O.S.No.373 of 1993. Similarly there is
no dispute in the relationship between the parties. The first defendant is the
plaintiff's sister's daughter. The second defendant is her husband and the
third defendant is their son. It is also not in dispute that on the same date
on 12.03.1991, on which the alleged lease deeds namely Exs.B1 and B2
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S.A.(MD)Nos.309 to 311 of 2006
were executed, Ex.B3 Will was also executed by the first plaintiff in favour
of her legal representatives. It is to be noted that on 12.03.1991, three
documents were said to have been executed by the first plaintiff. It is not in
dispute that the first plaintiff in O.S.No.2111 of 1994 and 373 of 1993 is an
illiterate and rustic village lady. The Courts below considered the nature of
evidence, particularly, the attesting witness examined on the side of the
defendant, namely, the plaintiff in O.S.No.2094 of 1993 and has recorded
the finding to the effect that the contents of the deeds have not been read
over to the executant namely, the old lady. The attesting witness has
admitted in his evidence that the contents of the document have not been
read out to the first plaintiff and nature of the document was also not
properly mentioned. Considering the entire evidence, the trial Court has
concluded that the so called lease deeds have not been executed.
12. It is to be noted that the first plaintiff in O.S.No.2111 of 1994
and 373 of 1993 is a old lady, rustic and illiterate widow. When persons like
close relatives wanted to take an advantage of the documents said to have
been executed by such rustic and illiterate villager, the burden of proof is on
the persons, who have taken the benefits of such documents to show that
the transaction is out of good faith. The entire onus lies on the persons,
who have taken advantage of such document executed by an illiterate
women. Good faith of transaction has to be shown by the parties, who take
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S.A.(MD)Nos.309 to 311 of 2006
the benefit of the document executed by the old, illiterate, ailing rustic
villager. Similarly the persons, who are in active confidence are liable to
show that the transaction is bona fide and genuine one. This aspect is
considered by the judgment of the Hon'ble Apex Court in the case of
Krishna Mohan Kul @ Nani Charan Kul and another vs. Pratima Maity and
others [AIR SC 2003 4351]
13. Besides, this Court has also considered other documents. Even
assuming that Exs.B1 and B2 were voluntarily executed, the duration of the
lease only for ten years. Those deeds were executed on 12.03.1991. The
period of ten years was also over by efflux of time stipulated in the said
lease documents. It is the case of the owners of the land that the so called
lessee had not paid the rent at any point of time. Whereas the contention of
the defendants is that they tried to pay the rent and the same has been
refused. such contention cannot be countenanced. Even assuming that the
said contention is true, the normal conduct of the party, who claims to be
statutory tenant, would be to deposit the rent either before the civil Court
or before the revenue Court. Admittedly, no such rents whatsoever has
been paid. Therefore, the contentions that still the appellants have interest
in the property as tenant by holding over cannot be countenanced. Holding
over by the tenant means even after determination of the lease granted to
the lessee or the tenant, the landlord continues to receive the rent and the
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S.A.(MD)Nos.309 to 311 of 2006
tenant is continuing in possession. In such case, it can be said that it is the
case of tenant by holding over. Whereas, in this case, no such rents
whatsoever has been paid till now. Therefore, the appellant cannot be
considered as tenant by holding over at any stretch of imagination and the
possession is nothing but illegal.
14. One more contention of the learned counsel for the appellants
is that the lease deed itself is executed for cultivating the lands. Therefore,
the defendants 1 and 2 in O.S.No.373 of 1993 are the cultivating tenants
and the deeds themselves show that both the defendants 1 and 2 fall within
the definition of the Cultivating Tenant as defined under the Act 25 of 1995
in the Tamil Nadu Cultivating Tenant Protection Act, 1955.
15. Perusal of the entire written statement, it is made clear that
except stating that the appellants are cultivating tenants and they are
entitled to the benefits under the Act, no other pleadings whatsoever had
been made as to the nature of the exercising the said right. The entire
written statement when perused, except denial of the facts, which is in
evasive nature, no specific denial is made.
16. Be that as it may, though the plaintiff in O.S.No.2094 of 1993
claims to be a tenant, no documents whatsoever had been filed before the
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S.A.(MD)Nos.309 to 311 of 2006
trial Court to show that the lands are cultivable and the appellants have the
benefits from the lands. Further, no proof had been filed to show that the
agricultural produce had been sold by plaintiff and her name had been
included in the Tamil Nadu agricultural Lands Records under the Act 10 of
1969. It is to be noted that under Section 4 of the Act 10 of 1969, the
tenants having interest in the land, in which they are cultivating shall make
an application to the Record Officer for inclusion of the said lands in the
approved record of tenancy rights. No such application was made under
Section 4 of the Act 10 of 1969 to contend that her tenancy has been
recognized under the statute. If such right was recognized, the person
became statutorily a tenant. In such case, it is always open to the tenants
to pay the rent regularly. No such rents whatsoever had been paid in this
case.
17. Therefore, This Court is of the view that unless appellants'
name are recorded as tenant under Section 4 of the Act 10 of 1969, they
cannot be considered as cultivating tenant, merely on the basis of some
documents namely, lease deeds said to have been executed in their favour.
Admittedly, those documents also came to be executed as a result of
fiduciary relationship and active confidence as discussed above. Therefore,
merely on the basis of such documents, one cannot claim right as tenant
without registering himself under Section 4 of the Act 10 of 1969.
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S.A.(MD)Nos.309 to 311 of 2006
18. Besides, even under Section 14 of the Tamil Nadu Cultivating
Tenant Protection Act, if really the appellants are stated to be a cultivating
tenant, three copies of the lease deeds ought to have been prepared 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. 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 /Revenue Divisional Officer by the
landlord or his agent within a fortnight of the date on which the cultivating
tenant signs it. This procedure is also not done in this case.
19. All these facts clearly show that the contention of the
appellants that they are the cultivating tenants is nothing but an attempt to
squat on the property forever. Therefore, this Court holds that the finding
of the Courts below does not suffer from any infirmity or irregularity.
Accordingly, all the questions are answered and these Section Appeals are
dismissed. The decree and the judgment made in A.S.No.154, 155 and 156
of 2002 dated 25.02.2005 on the file of the First Additional Subordinate
Judge, Trichirappalli confirming the decree and judgment made in O.S.No.
2094 of 1993, 2111 of 1994 and 373 of 1993, respectively dated 15.02.2002
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S.A.(MD)Nos.309 to 311 of 2006
on the file of the III Additional District Munsif, Tiruchirapalli is hereby
confirmed. No costs. Consequently, connected miscellaneous petition is
also closed.
18.01.2021
Index : Yes/No
Internet : Yes/No
ta
To
1.The First Additional Subordinate Judge, Trichirappalli
2.The III Additional District Munsif, Tiruchirapalli
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)Nos.309 to 311 of 2006
N.SATHISH KUMAR, J.
ta
Judgment made in
S.A.(MD)Nos.309 to 311 of 2006
18.01.2020
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