Palanirajan vs Rajeshwari
2022 Latest Caselaw 6490 Mad

                                                                                            SA.No.67/2022



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 30.03.2022

                                                        CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                        SA.No.67/2022 and CMP.No.1542/2022


                    Palanirajan                                         .. Plaintiff /Appellant /
                                                                          Appellant


                                                             Vs.

                    1.Rajeshwari
                    2.Viswanathan
                    3.Kanakasabai                                      .. Defendants / Respondents /
                                                                          Respondents


                    Prayer:- Second Appeal filed under Section 100 of the Civil Procedure
                    Code against the judgment and decree dated 24.02.2021 passed in
                    A.S.No.01/2015 on the file of the learned Subordinate Judge, Panruti
                    confirming the judgment and decree dated 01.11.2014 passed in
                    O.S.No.89/2006 on the file of the District Munsif Court, Panruti.


                                      For Appellant      :         Mr.S.Kingston Jerold

                                      For Respondents    :         Mr.K.Ravikumar



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                                                                                          SA.No.67/2022




                                                       JUDGMENT

(1) The plaintiff in the suit in O.S.No.89/2006 before the District

Munsif Court, Panruti is the appellant in this appeal.

(2) The appellant filed the suit in O.S.No.89/2006 for a declaration that

the delivery for portion of the suit property in favour of the 1 st

defendant on 24.09.2005 in pursuance of order in E.P.No.106/05

before the Sub Court, Panruti in O.S.No.143/2000 is only a paper

delivery, and for consequential permanent injunction restraining the

defendants in the suit, namely the respondents herein, from

interfering with the peaceful possession and enjoyment of the suit

property till the appellant is lawfully evicted. The suit property is

described as a property having an extent of 1.41 acres in S.No.793 in

Thiruvathigai Village in Panruti, Cuddalore district.

(3) The case of the plaintiff is that the suit property belonged to the 3rd

defendant who had leased out the suit property to the plaintiff under

a Lease Deed dated 15.03.1990. It is admitted that the 3rd defendant

is the father of plaintiff. Though it is contended by the plaintiff that

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the name of plaintiff was recorded as cultivating tenant in the

tenancy records by proceedings in T.R.No.5/2005, the admitted facts

indicate that the property originally belonged to defendants 1 to 3 in

the suit. The 3rd defendant appears to be the younger brother of

defendants 1 and 2 and that they are all the children of one Thiru

Natesa Pillai. The suit property was the property of Thiru Natesa

Pillai. The 1st defendant filed the suit in O.S.No.244/1992 on the file

of the learned Additional Sub Court, Cuddalore against defendants 2

and 3 for partition in respect of the suit property and other

properties. It is also admitted that a preliminary decree for partition

in favour of the 1st defendant in respect of all the suit items was

passed on 03.01.1995. It is admitted that the preliminary decree has

become final as no further appeal had been preferred. It is admitted

that a final decree application was filed in I.A.No.67/1986 before the

District Munsif Court, Panruti. However, the suit was later

transferred and renumbered as O.S.No.143/2000 and the final decree

application was also renumbered as I.A.No.390/4. Based on the final

report of the Advocate Commissioner a final decree was passed on

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01.02.2005. As per the final decree the suit property an extent of 59

cents on the south out of total extent of 1.41 acres was allotted to the

1st defendant. Pursuant to an order of delivery in E.P.No.106/5, the

property was delivered to the 1st defendant. Therefore, the 1st

defendant states that he got delivery of the property pursuant to the

execution. According to the 1st defendant the suit itself is to prevent

the delivery as recorded in the execution proceedings in

E.P.No.106/5. It is admitted that based on the delivery recorded, the

Execution Petition itself was closed on 20.01.2006. It is contended

by the 1st defendant that the present suit had been engineered at the

instance of the 3rd defendant to grab the property which was allotted

and taken possession by the 1st defendant.

(4) The Trial Court after considering the pleading and evidence found

that the plaintiff and 3rd defendant had colluded to create documents

to prevent the 1st defendant from enjoying the property allotted to

her and that pursuant to the final decree proceedings in

O.S.No.143/2000 the plaintiff is not entitled to any relief. A specific

finding was also rendered by the Trial Court that the order passed by

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the Record Officer recording the plaintiff as cultivating tenant is not

binding on the 1st defendant and that the plaintiff has failed to prove

his case as against the 1st defendant.

(5) As against the judgment and decree of the Trial Court dismissing the

suit, the plaintiff preferred an appeal in A.S.No.01/2015 before the

Sub Court, Panruti and the Lower Appellate Court, confirming the

findings of the Trial Court, dismissed the appeal. As against the

concurrent judgments and decrees of the Courts below the above

Second Appeal is preferred.

(6) Learned counsel appearing for the appellant though raised several

questions of law, confined his argument to his contention that the

Court below failed to consider the admission of DW1 who has

admitted the possession of the plaintiff. Learned counsel then

submitted that the Civil Court has no jurisdiction to decide the

question whether the appellant is a cultivating tenant or not. Learned

counsel also submitted that the plaintiff is entitled to a decree for

injunction especially when proved his possession as cultivating

tenant under 3rd defendant.

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(7) This Court is unable to countenance any of the submissions of the

learned counsel appearing for the appellant. First of all, it is

admitted that the suit for partition was filed in the year 1992. It is

admitted that the suit property is the property of defendants 1 to 3

who are the children of late Thiru Natesa Pillai. The 3rd defendant is

the junior most member of the family and has no exclusive title with

respect to any of the properties of the family. The 3rd defendant has

no independent right to deal with the suit property to grant lease in

favour of his own son the plaintiff in the present suit. The Courts

below have specifically found that there is a collusion between the

plaintiff and the 3rd defendant to create a lease. Though it is admitted

that the plaintiff had obtained an order from the Record Officer

recording his name as a cultivating tenant on the basis of the lease

granted by the 3rd defendant, the said proceedings are much after the

preliminary decree had been passed. The lease has been held by the

Courts below as a fraudulent transaction as the document is a result

of collusion between the plaintiff and the 3rd defendant who had

consented before the Record Officer to create a record in favour of

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the plaintiff. When the lease itself is a sham and not binding on

other heirs namely defendants 1 and 2, the plaintiff cannot claim any

right as a cultivating tenant against the 1st defendant.

(8) Before the Trial Court, the 1st defendant was examined as DW1 and

admitted the proceedings of Record Officer but that does not mean

that the 1st defendant has admitted any right in the plaintiff as a

tenant. The admission of DW1 cannot be characterised as an

admission of plaintiff 's possession as a cultivating tenant.

Therefore, the submission of the learned counsel appearing for the

appellant cannot be accepted in view of the factual findings of the

Courts below negativing the status of the plaintiff as a cultivating

tenant. This Court is unable to interfere with the judgments and

decrees. Having regard to the specific findings, the substantial

questions of law raised by the appellant have no substance.

(9) In the result, the Second Appeal is dismissed. Consequently

connected Civil Miscellaneous Petition is closed.

30.03.2022 cda Internet : Yes

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S.S.SUNDAR, J.,

cda

To

1.The Subordinate Judge, Panruti.

2.The District Munsif Court, Panruti.

3.The Section Officer, VR Records, High Court, Chennai.

SA.No.67/2022 and CMP.No.1542/2022

30.03.2022

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