Madras High Court
Ramalingam vs A/M.Nageswaran Temple on 2 December, 2022
S.A(MD)No.662 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.12.2022
C O R A M
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
S.A(MD)No.662 of 2022 and
CMP(MD)No.9363 of 2022
Ramalingam ...Appellant
Vs.
1.A/M.Nageswaran Temple,
Kumbakonam,
Represented by its Executive Officer,
Office at Temple Premises.
2.The Assistant Commissioner,
HR&CE Office at Nageswaran North,
Street Kumbakonam.
3.The Joint Commissioner,
HR&EC Office at
Patta Mangala Street,
Mayiladuthurai. ... Respondent
PRAYER: Second Appeal is filed under Section 100 of the
Code of Civil Procedure, 1908, to set aside the judgment
and decree of the lower appellate Court dated 25.02.2019
passed in AS.No.AS.No.8 of 2016 on the file of the
Additional District Court (Fast Track Court), Kumbakonam,
reversing the judgment and decree of the trial Court
dated 30.11.2015 passed in OS.No.206 of 2012 on the file
of the Sub Ordinate Judge, Kumbakonam and allow the
second appeal.
For Appellants : Mr.S.Sankar
1/13
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S.A(MD)No.662 of 2022
For Respondent : Mr.V.Chandrasekar
No.1
For Respondent :Mr.N.Ramesh Arumugam
Nos.2 and 3 Government Advocate
JUDGMENT
This second appeal is filed as against the judgment
and decree dated 25.02.2019 passed in AS.No.8 of 2016 by
the learned Additional District Judge (Fast Track Court),
Kumbakonam reversing the judgment and decree dated
30.11.2015 passed in OS.No.206 of 2012 by the learned
Sub Judge, Kumbakonam.
2.This appellant/ plaintiff filed the suit in
OS.No.206 of 2012 against respondents for relief of
permanent injunction, not to evict him except under due
process of law. The suit was decreed by the Principal
Sub Court, Kumbakonam on 30.11.2015. As against the
judgement and decree passed in OS.No.206 of 2012,
the respondent has filed an appeal before the Additional
District Court, Kumbakonam in AS.No.8 of 2016, which was
allowed reversing judgment and decree passed by the trial
court. Challenging the same, the plaintiff has filed this
appeal on the following substantial questions of law:
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S.A(MD)No.662 of 2022
i.Whether the findings of the court below against
section 107 of the Indian Evidence Act with regard to the
admissions given by the respondents tenable?
ii.Whether the findings of the court below that
respondent is not a tenant and he is not in possession
without considering pleadings, written statement, when
the respondent has not denied in specific terms that
there is no landlord-tenant relationship and also after
admitting the possession of the appellant is tenable?
iii. Whether the court below relying on the Ex.B1
appellate order passed in the tenancy, which was obtained
behind the back of the appellant as basis for allowing
the appeal, as no possession is with the appellant is
illegal?
iv.Whether the court below is correct in relying
upon the appellate order produced by the respondents,
when appellant has categorically stated in the plaint of
the year 2012 that the respondents have not filed any
appeal, which was also not denied by the respondents in
the written statement still 2014 and later after
obtaining and ex-party order by filing with delay of 1682
days reversing the tenancy right granted to the appellant
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S.A(MD)No.662 of 2022
and then filing additional written statement amounts to
abusing the process of the court?
v.Whether the fasil revenue records could be used
against the appellant when the respondents themselves
have admitted that the appellant is in possession of the
suit property for allowing the appeal in favour of the
respondents? and
vi.Whether respondents are bound to follow the due
process of law in evicting the appellant as contemplated
under section 78 of the Tamil Nadu Hindu Religious and
Charitable and Endowments Act?
3.The learned counsel for the appellant submits that
the appellant is a cultivating tenant of the land
belonging to the temple. Since the land was originally
leased to one Ramamurthy as tenant, his name is also
registered in RTR register. After the death of Ramamurthy
the tenancy was transferred to his wife Vasanthakumari
and her name was also entered in the RTR register.
Vasanthakumari was not able to cultivate the land and
therefore she has leased out the property to this
appellant and thereafter he is cultivating the land.
He also filed an application in P.No.49 of 2006 before
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S.A(MD)No.662 of 2022
the Revenue Authority and in the revenue records his name
is recorded as tenant and his name is also recorded in
the RTR register. The respondent did not record his name
even after the orders passed in P.No.49 of 2006.
Therefore he filed above suit for injunction restraining
the respondents from evicting without following due
process of law. The trial court considering the available
evidence decreed the suit in favour of the appellant.
However the appellate court reversed judgement of the
trial court based on the orders of the appellate
authority, who reversed the recorded tenancy in favour of
the appellant.
4.The learned counsel for the appellant submits that
the respondents have admitted the possession of this
appellant in the suit property. Admittedly the appellant
was also recorded by the competent authority revenue
officials in P.No.49 of 2006 as tenant. This order is
said to have been reversed by the appellate authority in
the appeal filed by the respondents and this appeal was
also filed with a delay of 1682 days. According to the
learned counsel for the appellant, the appellate
authority had reversed finding of the Tahsildar by
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S.A(MD)No.662 of 2022
condoning the delay of 1682 days without issuing any
notice to this appellant and without providing any
opportunity to him. This appeal proceedings according to
the learned counsel for the appellant was not stated in
the reply statement of the respondents or anywhere in the
proceeding in CMA.26 of 2014 or before the trial court.
The delay was condoned by the Special Deputy Collector
without any notice and on the same day, he also allowed
the appeal. Even though tenancy recorded by the Tahsildar
is set aside by the appellate authority, as on the date
of filing of the suit, the appellant was a tenant of the
respondent and he was also recorded as tenant and
therefore the appellate court ought to have recognised
his possession and ought not to have non-suited the
plaint and when the possession is admitted then he has to
be evicted in the manner known to law by filing necessary
application under Section 78 of HR&CE Act.
5.Caveator / respondents have entered appearance and
the learned Counsel for the respondent No.1 has made his
submission with the permission of this Court in the
admission stage itself.
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S.A(MD)No.662 of 2022
6.The learned Counsel for the respondent No.1 by
referring the plaint submits that the petitioner's plaint
itself would disclose that he is not a cultivating tenant
and the relevant portion is extracted as under:
“3.The property detailed hereunder and
hereinafter referred to as suit property
belonging to the 1st defendant temple. The
suit property is situated at Thanjavur
district, Kumbakonam Talku, Ullur Village
bearing RS.No.131/4 extent 0.32 cents, RS.No.
135/2 extent 2.13 acres, RS.No.135/4 extent
0.50cents, RS.No.135/5 extent 0.08 cents,
RS.No.135/6 1.44 Acres all punja lands and
total extent of the suit properties is 4.47
acres. The house of the plaintiff and
plaintiffs brother, sister houses are
situated in the suit property. Adjoining the
plaintiff's house on the eastern side 1 acre
punja thidal is situated and it is in
possession and enjoyment of the plaintiff.
There is a road available. On the northern
side of the plaintiff house after the road
the rest of the suit property is available.
The plaintiff is the cultivating tenant of
the suit properties contributing his own
physical labour and that of his family
members and with the help of servants. The
plaintiff is cleaning the suit property then
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S.A(MD)No.662 of 2022
and there. Earlier one Ramamurthy was the
tenant, his name entered in the RTR register.
The order was passed in P.No.54 of 1994 by
concerned Tahsildar Kumbakonam. The original
of the order is filed herewith. The 1st
defendant was party in the proceedings.
Due to shortage and scarcity of water,
the lands now turned Tharisu and the
plaintiff is in possession and enjoyment of
the same. The plaintiff has sent the rent to
the defendant No.1 through DD but for reasons
best known to the 1st defendant the DDs were
returned for no fault of the plaintiff.”
7.The learned Counsel further submits that one
Ramamurthy was the original tenant and after his death
his wife one Vasanthakumari was recorded as tenant.
Vasanthakumari by expressing that she cannot cultivate
the land, returned the properties to the temple.
The appellant is claiming that he is a sub-tenant of
Vasanthakumari and the sub tenant can also be treated as
tenant under the Tamil Nadu Agricultural Lands Record of
Tenancy Rights Act, 1969.
8.According to the respondents the subject lands are
the properties of the temple. It can be governed only by
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S.A(MD)No.662 of 2022
the Tamil Nadu Public Trusts (Regulation of
Administration of Agricultural) Lands Act, 1961 and as
per Section 21 of the Act, there must be an agreement in
writing and therefore, the appellant is not entitled to
seek any remedy under the Tamil Nadu Agricultural Lands
Record of Tenancy Rights Act, 1969. He further submits
that the tenants means a person, who contributes his own
physical labour or that of any other member of his family
in the cultivation of the land under a tenancy agreement,
express or implied;
9.Admittedly there is no cultivation in the land as
per the appellant's averments in the plaint itself.
Further, the appellant / plaintiff has not filed any
proof that he is cultivating the land or paid any rent to
the respondents. Not even any adangal has been filed or
marked to prove his possession of the suit schedule
property. The appellant / plaintiff has sought for
injunction that he has been in possession of the
property. Mere possession is not sufficient for grant of
injunction and he must establish that he has been in
lawful possession.
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S.A(MD)No.662 of 2022
10.This Court considered the rival submissions and
perused the materials placed on record.
11.The appellants claims that he was a sub tenant of
one Vasanthakumari to the property of the respondent
temple. The appellant was originally declared as
cultivating tenant by the Recording Officer in P.No.49 of
2006. It was subsequently set aside by the appellate
authority. The appellant claims that the appeal was
entertained by the appellate authority with a delay of
1682 days and without providing any opportunity and also
on the same day the delay was condoned. If the appellant
is having any grievance with regard to the orders of the
appellate authority in deciding his tenancy right, the
appellant has to challenge the orders of the appellate
authority in the manner known to law.
12.The temple properties are governed by the
provisions of the Tamil Nadu Public Trusts (Regulation of
Administration of Agricultural) Lands Act, 1961. Even as
per the Tamil Nadu Agricultural Lands Record of Tenancy
Rights Act, 1969, 'tenant' means, a person, who
contributes his own physical labour or that of his family
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S.A(MD)No.662 of 2022
member in the cultivation of land under tenancy agreement
express or implied. Cultivation is defined as use of land
for the purpose of agricultural or horticulture.
The appellant claims that he is a sub tenant of one
Vasanthakumari. The respondents claim that Vasanthakumari
already handed over the property, then she is not in
possession of the cultivating lands. Vasanthakumari was
not examined as witness in the suit. Even according to
the appellant, there is no water and there is no
cultivation, he has put up some construction and has been
residing in that property. There is no proof that the
appellant has obtained any permission from the temple
authorities to put up any construction and admittedly the
appellant has not paid any rent to the temple authorities
also.
13.In view of the admissions of the plaintiff that
there is no cultivation, this appellant is not having any
document to show that there was any agreement between the
respondent temple and himself that he is a sub-lessee of
Vasanthakumari. Vasanthakumari has given letter to the
temple that she had already handed over the property,
the order which he had obtained in P.No.49 of 2006 was
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S.A(MD)No.662 of 2022
also set aside by the appellate authority. The appellant
is not having any proof that he has ever cultivated the
land or he has paid any rent or there was any agreement
with the temple. Therefore this Court is not inclined to
entertain this second appeal on the substantial questions
of law raised in this appeal.
14.In the result, this second appeal is dismissed.
No costs. Consequently connected miscellaneous petition
also stands dismissed.
02.12.2022
dsk
To
1.The Additional District Judge,
(Fast Track Court),
Kumbakonam.
2.The Sub Ordinate Judge,
Kumbakonam.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.662 of 2022
B.PUGALENDHI., J
dsk
JUDGMENT MADE IN
S.A(MD)No.662 of 2022
02.12.2022
https://www.mhc.tn.gov.in/judis
