Madras High Court
Mariammal vs Syed Ahamed Ibrahim on 27 October, 2021
S.A.(MD)No.361 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
S.A.(MD)No.361 of 2021
and C.M.P.(MD)No.4719 of 2021
1.Mariammal
2.Murugan
... Appellants
Vs.
Mydeen Beevi(Died)
1.Syed Ahamed Ibrahim
2.Baseer Ahamed
3.Syed Sulaiman
4.Syed Alameen
5.Jainab Muneera Banu
6.Syed Samsudeen ... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure, against the Judgment and Decree of the Lower
Appellate Court dated 26.08.2020 passed in A.S.No.5 of 2015 on
the file of the Principal Sub Judge, Tirunelveli confirming the
Judgment and Decree of the Trial Court dated 02.07.2014 passed in
O.S.No.30 of 2011 on the file of the II Additional District Munsif,
Tirunelveli.
For Appellants : Mr.M.Saravanan
for M/S.Ashok Kumaran.C.
1/12
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S.A.(MD)No.361 of 2021
For Respondents : Mr.A.Arumugam,
M/s.Ajmal Associates.
JUDGMENT
This second appeal has been filed against the judgment and
decree dated 26.08.2020 passed in A.S.No.5 of 2015 on the file of
the Principal Sub Judge, Tirunelveli confirming the Judgment and
Decree of the Trial Court dated 02.07.2014 passed in O.S.No.30 of
2011 on the file of the II Additional District Munsif, Tirunelveli.
2.For the sake of convenience, the parties are referred to as
per their status in the Trial Court.
3.The case of the plaintiff is as under:-
3.1.One Mydeen Beevi has filed suit for recovery of
possession and mesne profits. The suit schedule property originally
belonged to one Syed Ibrahim Basha son of Ameerjhon Saibu
having purchased the same through a registered sale deed, dated
01.08.1983. The said Syed Ibrahim Basha executed a registered
power of attorney in favour of one Syed Basheer son late.Syed
Mydeen. The said Syed Basheer, by a sale deed dated 08.12.2004,
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S.A.(MD)No.361 of 2021
sold the property to the above said Mydeen Beevi for a valid
consideration and she was enjoying the property as sole owner and
she had been paying taxes and other gists and she had also made
relevant entries in the revenue registers. While so, the predecessor
in title, namely, Syed Ibrahim Basha had entered into an
unregistered mortgage deed with one Ganapathi son of Arumugam
on 12.06.1998, for a period of five years, after receiving a sum of
Rs.20,000/-. As per the terms of the unregistered mortgage deed,
after the expiry of the mortgage period, the mortgagee has to
receive a sum of Rs.20,000/- and hand over the property to the
mortgagor. After the death of the said Ganapathy, the defendants,
who are his legal heirs, had been cultivating the property and they
have received a sum of Rs.20,000/- on 18.11.2010 from the said
Syed Ibrahim Basha. After the expiry of the mortgage, the
defendants do not have any right to possess the property. On
19.11.2010 when Mydeen Beevi and her legal heirs had gone to
possess the property, the defendants had prevented them to take
possession of the property and thereby the plaintiffs had filed the
suit for recovery of possession and mesne profits.
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S.A.(MD)No.361 of 2021
4.The defendants have filed written statement contenting that
the suit land was owned by one Syed Ibrahim Basha and he entered
into an agreement dated 12.06.1998 with the first defendant's
husband, namely, Ganapathi, who is none other than the father of
the second defendant, for a period of five years. In consideration of
the same, the said Ganapathy paid a sum of Rs.20,000/- on the
understanding that the interest accruing thereon was to be treated
as rent for the tenancy. Since then, the said Ganapathy had been
remaining in possession and enjoyment of the suit land as a
cultivating tenant. As per the covenant, the tenant was entitled to
enjoy the entire yield from the suit land and subsequent to the
demise of the said Ganapathy on 27.03.2002, his tenancy rights
over the suit land passed on to the defendants being his legal heirs.
Since then, the defendants have been cultivating the land. The
owner of the land, namely, Syed Ibrahim Basha Sahib paid a sum of
Rs.20,000/- to the defendants on 18.11.2010 by virtue of their right
as legal heirs of the said Ganapathy and that even after the
repayment of the said amount, the second defendant had been
carrying on cultivation in the said suit land for self and on behalf of
the first defendant. Only after receiving notice from the Court,
they came to know that the plaintiffs had purchased the suit land as
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S.A.(MD)No.361 of 2021
early as on 08.12.2004. The defendants have filed an application in
the prescribed form for entry of their names in the record of
tenancy rights under the provisions of the Tamil Nadu Agricultural
Lands Record of Tenancy Rights Act, 1969. The defendants
claimed that they are in possession of the land as cultivating
tenant, within the meaning of Section 2(aa)(ii)(b) of the Tamil Nadu
Cultivating Tenants Protection Act, 1955 and the jurisdiction of the
civil Court was ousted under Section 6 of the Cultivating Tenants
Protection Act, 1955 and therefore, the trial Court has no
jurisdiction to entertain the suit and the same was not
maintainable.
5.The Trial Court after considering the rival submissions,
framed the following issues:-
1.Whether the plaintiff is entitled for recovery of possession
in respect of the suit property?
2.Whether the plaintiff is entitled to get mesne profit from the
defendants?
3.Whether the suit is barred under Section 6 of the Tamil
Nadu Cultivating Tenants Protection Act, 1955?
4.Whether there is any cause of action to file this suit?
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S.A.(MD)No.361 of 2021
5.To what other relief the plaintiff is entitled?
6.On the side of the plaintiff, the son of the plaintiff was
examined as PW.1 and one Syed Ibrahim Basha was examined as
PW.2 and Ex.A1 to A7 were marked. On the side of the defendants,
the second defendant was examined as DW.1. However, no
document was marked from the side of the defendants.
7.The Trial Court found that the plaintiffs have proved their
case and that the defendants have not proved their status as
cultivating tenant and decreed the suit in favour of the plaintiff and
rejected the claim of the defendants.
8.Against the judgment and decree, the defendants filed an
appeal in A.S.No.5 of 2015 on the file of the Principle Sub Court,
Tirunelveli. Pending appeal the plaintiff died and her legal heirs
were brought on record. In the appeal, the defendants had claimed
that the husband of the first defendant, namely, Ganapathi, had
entered into a lease agreement with the predecessor in title,
namely Syed Ibrahim Basha on 12.06.1998 and had paid a sum of
Rs.20,000/- to him, for which he was granted lease for a period of
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S.A.(MD)No.361 of 2021
five years and based on the lease deed, the said Ganapathy had
been cultivating the land. Though the above said amount was
returned by the owner of the property on 18.11.2010, the
defendants as legal heirs of the said Ganapathi had been cultivating
the property continuously without any interruption.
9.The Appellate Court framed the following points for
determination:-
1.Whether the judgment and decree of the Trial Court has to
be set aside?
2.To what are the other reliefs the appellants are entitled?
10.The Appellate Court, after careful perusal of materials on
record found that the defendants have not proved their case by
letting oral and documentary evidence that they are cultivating
tenantS. The Appellate Court also held that the plaintiff had
proved her case and dismissed the appeal concurring with the
finding of the Trial Court, against which, the present Second
Appeal has been filed.
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S.A.(MD)No.361 of 2021
11.The learned counsel for the appellants/defendants would
submit that though the defendants repaid the lease amount on
18.11.2010, the defendants continued to be in possession and they
were cultivating the property as cultivating tenants. He would
further submit that the second defendant had let in oral and
documentary evidence to prove that he is the cultivating tenant in
respect of the property, however, both the Courts below failed to
consider the same in proper perspective.
12.Per contra, the learned counsel for the respondents would
submit that Ex.A5 is nothing but an unregistered mortgage deed
executed by the predecessor in title by receiving a sum of Rs.
20,000/- from the husband of the first defendant and handing over
the possession of the property, however, subsequently, the amount
was repaid and the mortgage deed was cancelled. He would
further submit that the Trial Court, finding that the defendants
have not produced any proof to show their status as cultivating
tenant as per Section 2(aa) (ii)(b) of the Tamil Nadu Cultivating
Tenants Protection Act, 1955 and no oral and documentary
evidence have been adduced to that effect, had decreed the suit in
favour of the plaintiffs. He would also submit that though the
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S.A.(MD)No.361 of 2021
defendants had claimed that they were continuing as cultivating
tenant for a long time, not even a single piece of paper has been
filed to prove the same and both the Courts below have rightly
come to the conclusion and held that the defendants are not
cultivating tenants.
13.Heard the learned counsel appearing on either side and
perused the materials available on record.
14.The original plaintiff had filed suit for recovery of
possession. The title and ownership of the plaintiff are not
disputed. It is the case of the plaintiff that the defendants had
entered into a mortgage with the predecessor in title and paid a
sum of Rs.20,000/-, which was also subsequently, repaid by the the
predecessor in title. The first defendant has also not denied with
regard to receipt of the money from Syed Ibrahim Basha, the
predecessor in title. Though the defendants have claimed
themselves as cultivating tenants, no oral or documentary evidence
has been adduced by them to prove their case.
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S.A.(MD)No.361 of 2021
15.The Trial Court as well as the Appellate Court finding that
the claim of the defendants had not been proved, decreed the suit
in favour of the plaintiff. In the opinion of this court, the Courts
below have rightly held that the defendants had not proved that
they fall within the definition of cultivating tenants. I do not find
any infirmity or illegality in the judgment and decree passed by
both the Courts below. Further the appellants have not made any
substantial question of law to admit this Second Appeal. The
Hon'ble Apex Court in Kirpa Ram (D) Tr.Lrs. vs Surender Deo Gaur
(2020 Scc OnLine SC 935) has categorically held as under:-
"23. Sub-section (1) of Section 100 of the
Code contemplates that an appeal shall lie to the
High Court if it is satisfied that the case involves a
substantial question of law. The substantial
question of law is required to be precisely stated
in the memorandum of appeal. If the High Court is
satisfied that such substantial question of law is
involved, it is required to formulate that question.
The appeal has to be heard on the question so
formulated. However, the Court has the power to
hear appeal on any other substantial question of
law on satisfaction of the conditions laid down in
the proviso of Section 100 of the Code. Therefore,
if the substantial question of law framed by the
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S.A.(MD)No.361 of 2021
appellants are found to be arising in the case, only
then the High Court is required to formulate the
same for consideration. If no such question arises,
it is not necessary for the High Court to frame any
substantial question of law. The formulation of
substantial question of law or re- formulation of
the same in terms of the proviso arises only if
there are some questions of law and not in the
absence of any substantial question of law. The
High Court is not obliged to frame substantial
question of law, in case, it finds no error in the
findings recorded by the First Appellate Court."
16. In the result, the Second Appeal fails and the same is,
accordingly, dismissed without being admitted. No costs.
Consequently connected miscellaneous petition is closed.
27.10.2021
Index: Yes/No
Internet: Yes/No
gns
To
1.The Principal Sub Court, Tirunelveli.
2.The II Additional District Munsif, Tirunelveli.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.361 of 2021
A.D.JAGADISH CHANDIRA, J.,
gns
S.A.(MD)No.361 of 2021
27.10.2021
https://www.mhc.tn.gov.in/judis/
