Madras High Court
Amutha vs Raja on 7 March, 2022
S.A.No. 140 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.03.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.140 of 2022
1. Amutha
2. Prabakar
3. Subha
4. Deepa
5. Uma
6. Girupa
7. Mohandoss .. Appellants
Vs.
1. Raja
2. Ramadoss
3. Nithyakalyani
4. Balasubramanian
5. Rajasekar
6. Prakash .. Respondents
Second Appeal filed is under Section 100 of Civil Procedure Code, 1908,
against the judgment and decree dated 20.12.2019 made in A.S. No.29 of 2018
and A.S. No.30 of 2019, on the file of Additional District and Sessions Court,
Mayiladuturai partly allowing and reversing fair and final order dated
16.08.2018 made in E.A. No.77 of 2017 in E.P. No.154 of 2014 in O.S. No.151
of 1994, on the file of Additional Sub Court, Mayiladuthurai.
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S.A.No. 140 of 2022
For Appellants : Mr. H.Kavitha
For Respondents : Mr. A.Muthukumar for R1
JUDGMENT
The appellants are the legal heirs of 8th defendant in the suit in O.S.
No.151 of 1994. The 8th defendant is the petitioner in claim petition filed before
the executing Court in the execution petition filed by the plaintiffs in the suit.
Since the 8th defendant died during pendency of the proceedings, the appellants
have been impleaded as legal heirs of Raja Gopal, the 8th defendant in the suit.
2. Brief facts that are necessary for the disposal of this second appeal are
as follows:
The father of first respondent in this appeal by name Pichumani filed a
suit in O.S. No.151 of 1994 on the file of Sub Court, Myladuthurai, for
partition and separate possession of his 1/2 share. A preliminary decree was
passed on 23.06.1998. A final decree was also passed on 22.11.2014 declaring
the plaintiff's specific share in the property. It is admitted that the decree was
also confirmed by this Court in A.S. No.689 of 1998. Since the plaintiff in the
suit died during pendency of proceedings, the first respondent herein was
impleaded as the legal heir of Pichumani and arrayed as plaintiff in the suit. It
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S.A.No. 140 of 2022
is now admitted before this Court that no further appeal is preferred either
against the judgment in A.S. No.689 of 1998 or as against final decree that was
passed in O.S. No.151 of 1994. When the first respondent filed an execution
petition in E.P. No.154 of 2014 in O.S. No.151 of 1994, the 8th defendant in the
suit filed an application in E.A. No.77 of 2017 under Order 21 Rule 58 (ii)
C.P.C. to cancel the order passed in E.P. No.154 of 2014 in O.S. No.151 of
1994 directing delivery of property on the ground that he is a cultivating tenant.
The application was in respect of 4 items of suit schedule properties which are
described as items 24 to 27 in the suit schedule. It is the specific case of the 8 th
defendant that he was cultivating the land in respect of items 24 to 27 in the
suit schedule and claimed that he was in possession of the land as cultivating
tenant under one Rajamani Iyer in respect of items 1 to 3 (Suit items 24 to 26)
and the fourth item is also under his cultivation. He prayed for cancellation of
delivery order as decree for partition is subject to his tenancy.
3. The application was resisted by the first respondent mainly on the
ground that items 24 to 27 were allotted to the respondents in final decree and
in respect of items 26 and 27 there is no tenancy. As regards items 26 and 27 of
the suit property, it is the positive case of first respondent that they were under
Pannai cultivation. The trial Court found that there is no tenancy agreement in
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S.A.No. 140 of 2022
respect of item 4 namely Item 27 and allowed the application in respect of
items 1 to 3 which are corresponding to item Nos.24 to 26 in the suit. With
regard to item 3, namely item 26, the executing Court, though found that the
appellants were not in possession of the property as cultivating tenant, found
that the appellants are entitled to be in possession of item 26 also.
4. As against the judgment and decree of the trial Court, the second
plaintiff preferred an appeal in A.S. Nos.29 of 2018 and the eighth defendant
filed an appeal in A.S. No.30 of 2018. The lower appellate Court reversed the
findings of the trial Court and dismissed the appeal preferred by the eighth
defendant in A.S. No. 30 of 2018 and partly allowed the appeal in A.S. No.29
of 2018. Aggrieved by the judgment and decree of the Additional District
Court, Myladuthurai, the above second appeal is preferred by the legal heirs of
8th defendant.
5. In the memorandum of grounds of the appeal, the appellants have
raised the following the substantial questions of law:
“ 1. Whether the finding of lower appellate court that except item 1 and
2, the other properties are not in possession of appellants is vitiated by non
consideration of admission of possession by RW1 ?
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S.A.No. 140 of 2022
2. Whether judgment of lower appellate Court is vitiated by non
consideration of material evidence on record namely evidence of P.W.2 and
P.W.3 especially when executing Court relied on the same while holding item 3
is under cultivating tenancy of appellants father ?”
6. Learned counsel for the appellants submitted that the Village
Administrative Officer who was examined on behalf of appellants have
categorically spoken about the enjoyment of the property particularly about
item No.26 and that therefore, the order of lower Court in rejecting claim in
respect of item No.26 is not sustainable. The learned counsel further submitted
that the Courts below failed to consider the evidence of P.W.1 to P.W.3 and
admission of D.W.1 in a proper perspective.
7. Originally, in the suit for partition, plaintiff's 1/2 share is declared by
passing a preliminary decree by judgment and decree dated 23.06.1988.
Though an appeal was filed in A.S. No.689 of 1988, it is admitted that the
appeal was also dismissed. It is brought to the notice of this Court that the
appellants who are the legal heirs of 8th defendant in the suit claim that they are
entitled to be in possession of the property as cultivating tenant. It is to be
noticed that the appellants have claimed right as cultivating tenant only in
respect of items 24 to 26 and not with reference to item 27. Though the
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S.A.No. 140 of 2022
appellants' claim is not disputed with reference to item 24 and 25, the
appellant's enjoyment as cultivating tenant in respect of item 26 and 27 are
specifically held against appellants.
8. The learned counsel for the appellants mainly relied upon the
document which is marked as Ex.P.19 issued by the Village Administrative
Officer. The said document was held to be issued by a retired Village
Administrative Officer. It is to be noted that the Village Administrative Officer,
though is supposed to maintain Adangal for every property within his
jurisdiction, he is not competent to decide anyone's status whether he is a
cultivating tenant or not. The 8th defendant filed Ex.P1 showing that his name is
recorded as a cultivating tenant as per tenancy records in respect of items 24
and 25. No other document of lease is produced to show that the 8 th defendant
was in possession of the property.
9. In the present case, the 8th defendant was a party to the suit. He did
not lay any claim over the properties namely item 26 and 27. However, he has
come forward with a petition under Order 21 Rule 58 C.P.C. claiming tenancy
right as a cultivating tenant in respect of two other properties which was not
even stated to be the property that was given to him by way of lease.
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S.A.No. 140 of 2022
Admittedly the appellants have not produced even a scrap of paper to show that
they are in possession and enjoyment of the property as cultivating tenant in
respect of items 26 and 27. Therefore, the lower appellate Court is right in
concluding that suit items No.26 and 27 cannot be treated as a property which
is in possession of appellants as cultivating tenants. The question whether the
plaintiff was in enjoyment of the property on the date of suit is not relevant
when he filed an application for delivery of property pursuant to a decree for
possession. The appellants are the legal heirs of 8th defendant who is a party to
the suit. Therefore, they are bound by the decree for partition. A person can
request the Court to record symbolic delivery if he is in possession of the
property and if he is able to prove that his right as a cultivating tenant against
land owner is established. When the 8th defendant is unable to prove tenancy
right in respect of items 26 and 27 which are items 3 and 4 in the present
proceedings, the appellants cannot succeed. The lower appellate Court, after
finding that the appellants have not produced any record to prove their right as
cultivating tenant, held that the decree obtained by the first respondent as
against the defendants is executable with respect of items 26 and 27.
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S.A.No. 140 of 2022
10. In view of the specific findings of the lower appellate Court, this
Court is unable to find any irregularity or illegality in the judgment and decree
of the lower appellate Court. As a result, this Second Appeal is dismissed with
costs.
07.03.2022
Index:Yes/No
Speaking order / Non speaking order
bkn
To:
1. The Additional District and Sessions Court, Mayiladuturai.
2. The Additional Sub Court, Mayiladuthurai.
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S.A.No. 140 of 2022
S.S.SUNDAR. J.,
bkn
S.A. No. 140 of 2022
07.03.2022
https://www.mhc.tn.gov.in/judis
