Raja Manickam Pillai vs Ramamoorthy
2023 Latest Caselaw 11332 Mad

                                                                                  S.A.No.770 of 2004


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                    Dated : 28.08.2023

                                                        CORAM

                              THE HON'BLE MR.JUSTICE KRISHNAN RAMASAMY

                                                 S.A.No.770 of 2004
                                                        and
                                              C.M.P(MD)No.6003 of 2004

                     1.Raja Manickam Pillai

                     2.Rajamani Ammal                                  ... Appellants/Appellants/
                                                                             Defendants 1&2

                                                              -vs-

                     1.Ramamoorthy
                     2.Dhakashinamoorthy
                     3.Nagarajan                                        ..Respondents/Respondents
                                                                     Plaintiffs 2-3 & 3rd Defendant


                     PRAYER: Second Appeal filed under Section 100 Code of Civil
                     Procedure, against the judgment and decree dated 20.10.2003, passed in
                     A.S.No.79 of 2002 by the II Additional Subordinate Judge, Trichirapalli,
                     in confirming the judgment and decree dated 11.04.2002 passed in
                     O.S.No.2091 of 1994 by the II Additional District Munsif, Trichirapalli.


                                  For Appellants        ... Mr.V.Raghavachary,
                                                           for Mr.S.Ramesh

                                  For Respondents        ... No appearance


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                                                                                     S.A.No.770 of 2004


                                                         JUDGMENT

Being aggrieved and dissatisfied with the judgment and decree

passed by the first appellate Court, the present second appeal came to be

filed by the appellants/defendants.

2.The appellants are the defendants 1 and 2 and the first and

second respondents are the plaintiffs 2 and 3 and the third respondent is

the third defendant in the suit in O.S.No.2091 of 1994. The said suit has

been filed for permanent injunction restraining the defendants from

interfering with the peaceful possession and enjoyment of the property.

3.The case of the plaintiffs is that they are the absolute owners of

the suit properties and they got the said properties under registered

settlement deed dated 21.11.1957. Pursuant to the same, they mutated the

revenue records in their favour and the defendants have no right over the

suit properties. While so, the defendants 2 and 3 were trying to grab the

suit property, at the instigation of the first defendant. Hence, the present

suit has been filed. The defendants have resisted the claim by filing

written statement stating that the defendants 1 and 2 are the cultivating

tenants of the suit properties. Originally, the suit properties were leased

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S.A.No.770 of 2004

out to one Ponnambalam, who is the husband of one Rajamaniammal. In

the suit properties, most of the coconut trees were planted by the said

Ponnambalam. In these circumstances, the said Ponnambalam passed

away and after his death, the defendants 1 and 2 are in possession and

enjoyment of the suit property. Hence, the suit is not maintainable.

4.Before the trial Court, on the side of the plaintiffs, P.W.1 was

examined and Exs.P1 to P11 were marked and on the side of the

defendants, D.W.1 was examined and no document was marked.

5.The trial Court, after framing the issues and after considering the

submissions made by both sides, came to the conclusion that the

defendants are not the cultivating tenants and the plaintiffs are in

possession and enjoyment of the property and decreed the suit.

Aggrieved over the said decree and judgment passed by the trial Court,

the defendants/ the appellants herein preferred an appeal before the first

appellate Court and the first Appellate Court, after considering the

submission made by the parties, confirmed the judgment and decree

passed by the trial Court. Against which, the defendants have preferred

this appeal.

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S.A.No.770 of 2004

6.When the matter came up for hearing on 31.08.2012, this Court

admitted the Second Appeal, on the following substantial questions of

law:

1.When the plaintiffs had admitted that the defendant's father was in occupation of the property and was maintaining the Coconut Thope, should not the Courts below applied the provisions of the Cultivating Tenants Protection Act and dismissed the suit as not maintainable?

2.Whether the Courts below have not ignored the admission of P.W.1 and misconstrued the document under Ex.A10?

7.Today, when the matter is taken up for hearing, the learned

counsel for the appellants is present and none appeared for the

respondents. Since the matter is pending for more than 19 years, this

Court is not inclined to keep the matter pending further and hence, the

appeal is taken up for disposal.

8.According to the appellants/defendants 1 and 2, they are the

cultivating tenants and they have inherited the cultivating tenants right

immediately after the demise of the first appellant's father and thereafter,

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S.A.No.770 of 2004

the subject land was sub-leased to one Nagarajan, who is the third

respondent herein. The learned counsel appearing for the appellants

would submit that the respondents have admitted before the Courts

below that the first appellant's father was in occupation of the suit

properties and they are nothing to do in the subject properties. Further,

he would submit that the document produced before the Court below is

not sufficient to prove the possession of the suit properties. He relied

upon Exs.A8/copy of written statement in O.S.No.1103 of 1990 and

A10/a reply notice of Rajamaniammal and submitted that in Ex.A10, they

have given a reply for the stand that they have taken the possession of the

suit scheduled properties due to the order of injunction granted in some

other suit. The learned counsel would further submit that P.W.1 in his

cross-examination deposed that he has not at all carried out anything,

when the possession was recovered and taken over by the defendants.

Therefore, the appellants are entitled to take possession under Tamil

Nadu Occupants of Kudiyiruppu (Protection from Eviction) Act, 1961

and hence, he prays for allowing the second appeal.

9.Heard the learned counsel appearing for the appellants and

perused the materials available on record.

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S.A.No.770 of 2004

10.It is made clear that the suit properties belonged to the

respondents 1 and 2/plaintiffs and Ex.A1 is the sale deed and Ex.A2 is

the patta issued in favour of the plaintiffs. Exs.A3 to A6 are the kist

receipts paid for the years 1986, 1988, 1991 and 1992 respectively and

all the documents have been marked through P.W.1. However, the

appellants have strongly objected all those documents and contended that

they are the owners of the properties and they are in possession and

enjoyment of the same. But, no documentary evidence has been filed to

substantiate the possession of the properties by the defendants. In

Ex.A10, the appellants/defendants provided reply for the submission

made in the legal notice of the respondents 1 and 2/plaintiffs, wherein

they have expressed that they have taken the possession of the suit

scheduled properties due to the injunction granted by this Court in a

separate suit. However, in which suit injunction was granted and the

particulars of injunction and the suit papers were not produced by the

appellants. He relied upon the submission of P.W.1 where he had not

stated anything when and how the possession was recovered. When the

non-availability of the suit papers, what type of injunction was granted

and since the difficulties faced subsequent to the possession of the

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S.A.No.770 of 2004

appellants, the plaintiffs have filed the present suit stating that the

defendants have made an attempt to disturb the possession of the

plaintiffs.

11.A perusal of exhibits made it clear that the respondents 1 and

2/the plaintiffs are the owners of the suit properties. In the suit properties

coconut trees were grown up. The contention of the plaintiffs was that

only for the purpose of harvesting the coconut, the suit properties were

temporarily leased out, but not cultivating under the Cultivating Tenants

Act, to the father of the first appellant Ponnambalam and for that also, no

documentary evidence has been produced. In the present case, though the

said submission was made by the learned counsel for the appellants, no

documentary evidence have been produced to substantiate their

contention that they are the cultivating tenants. Even the appellants

made a claim that they have inherited the cultivating tenants right, which

has been transferred to the third respondent, for which, no document was

filed. After considering all these aspects and the oral and documentary

evidence, the Courts below passed the judgment and decree in favour of

the plaintiffs.

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S.A.No.770 of 2004

12.In these circumstances, this Court is of the considered view that

the judgment and decree passed by the Courts below need not be

interfered with, when this Court does not find any infirmity in the

findings of the Courts below. Hence, the substantial questions of law are

answered against the appellants and the Second Appeal is liable to be

dismissed. Accordingly, the Second Appeal stands dismissed. No costs.

Consequently, connected miscellaneous petition is closed.

28.08.2023 NCC : Yes/No Index : Yes/No Internet: Yes

Ns

To

1.The Sub Judge, Sivagangai.

2.The District Munsif, Paramakudi.

3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

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S.A.No.770 of 2004

KRISHNAN RAMASAMY,J.

Ns

S.A.No.770 of 2002

28.08.2023

https://www.mhc.tn.gov.in/judis