Arumugam and Another vs Sri. Dharmapuram Mutt

Raju, J.—The above second appeal has been filed against the judgment and decree of the learned Subordinate Judge, Mayiladuthurai

reversing the judgment and decree of the learned District Munsif, Strkali dated 27.11.1980 in O.S. No. 95 of 1977.

The suit O.S. No. 95 of 1977 was filed by the respondent Mutt praying for permanent injunction against the defendants from interfering with the

peaceful possession and enjoyment of the suit, properties by the plaintiff, and in the alternative if it is found by the Court that the plaintiff was not in

possession on the date of the suit for recovery of possession. The claim of the plaintiff in substance was that the suit properties have not been

leased out to anyone and the defendants were not in possession of the suit properties as tenants much less cultivating tenants. The defendants have

filed a written statement and it was contended that the suit properties have been let out to the first defendant''s father for planting and rearing fruit

bearing trees and also cultivation of dry crops, that the first defendant''s father had planted and raised tamarind and mango trees besides chillies

and other Vegetable crops and has been taking the profits for himself, that the tenancy started in the year 1935 and the rent was fixed at Rs. 6/-

per annum and that the rent was being paid by serving the mutt works in the suit village and the same was never paid in cash till the death of the

defendant''s father. It is claimed that after the death of the father, the first defendant is continuing in the tenancy by holding over the same. On this

nature of pleadings, the suit was tried and the trial Court merely finding that the defendants were in possession and that they were also cultivating

the suit properties by their own physical labour, came to the conclusion that the first defendant is a cultivating tenant in respect of the suit property

and, therefore, dismissed the suit.

On appeal before the lower appellate Court the learned Subordinate Judge observed that the defendants have nowhere claimed in the written

statement filed that they were contributing their own physical labour and the labour of the members of their family and in the absence of any such

pleadings, it is not known as to on what basis the findings of the trial Court have been arrived at. The lower appellate Court also observed that the

defendants have not chosen to plead the necessary facts and prove their claim to enable them to avail of the protection under Tamil Nadu Act 57

of 1961. The lower appellate court also found that the trial Court came to the conclusion that the first defendant was a tenant on the only ground

that the lands have been in possession of the first defendant and his father for a long time but at the same time the lower appellate Court was not

able to appreciate the said findings of the trial Court in the absence of any entry recording the defendants as tenants in respect of the land in

question in the Record of Tenancy for the village. The lower appellate Court further recorded a positive finding that taking advantage of the fact

that the first defendant worked as he tried to usurp the possession of the land and claimed tenancy rights and that the records produced by the

Mutt Tor having conducted an auction and the troubles created by the tenants cannot be lightly brushed aside. Finally, the lower appellate Court

held that there was absolutely no materials whatever produced to substantiate the claim of tenancy and that therefore the suit was decreed.

Aggrieved, the above second appeal has been filed.

At the time of admitting the appeal, it was felt necessary to consider whether the burden of proof has been wrongly shitted to the appellant to

prove their entitlement for protection under the Tamil Nadu Act 57 of 1961, and whether the lower appellate Court has given detailed reasons for

not accepting the testimony of some of the witnesses examined in the trial Court.

Learned counsel for the appellants in this Court invited my attention to the decisions in Periathambi Goundan Vs. The District Revenue Officer,

Coimbatore and Others, and T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras, and contended that

not only the lower appellate Court has failed to properly apply its mind and give sufficient reasons to reject the evidence of some of the witnesses,

but has committed an error in decreeing the suit in the teeth of the prohibition contained in Section 16-A of the Tamil Nadu Agricultural (Record of

Tenancy Rights) Act, 1969 when it is only the authorities constituted under the said Act who alone are entitled to decide the question of the

landlord and tenancy relationship between parties. Learned counsel for the respondent while adopting the reasoning of the lower appellate Court in

support of his stand contended that the lower appellate Court has given - cogent and convincing reasons for its findings and the trial Court not only

misread the evidence on record but misdirected itself to the issues before it and that at any rate the embargo u/s 16-A of the Act does not have the

effect of ousting the civil Court jurisdiction in its entirety and at all circumstances. In substance it is contended that it cannot be said to be a

complete or total ouster of jurisdiction as understood and clarified by the subsequent decisions by this Court as also the Full Bench relied upon by

the appellants.

Learned Counsel appearing on either side took me at length through the relevant evidence and findings on record in the judgments of the Courts

below to support their respective stand. On a careful consideration of the same. I am of the view that the learned trial Judge has committed a grave

error of law and misdirected himself in not adverting to the proper issues to be decided on the pleadings and the evidence on record. As rightly

pointed out by the lower appellate Court, the defendants have not pleaded in the written statement about the contribution of their own physical

labour an that of the members of their family specifically and such claim was not specifically put in issue for trial and merely because there was

some evidence the Court cannot on its own decide such factual questions of feet in a summary fashion. As a matter of fact, on going through the

judgment of the trial Court and particularly the findings recorded in paragraph 13 on issue No. 2 and additional issue No. l, I am of the view that

the trial Court has committed a grave blunder and patent error of law. Even according to the trial Court and even as per the case pleaded by the

first defendant, he and prior to him, his father was and lands have been in lieu of the services to be rendered. Though the defendants also pleaded

that they enjoyed the suit property on Paguthi basis, curiously they contended that Paguthi was paid by rendering service to the Mutt.

Unfortunately, the trial Court has chosen to believe such a version of the defendants without even appreciating the contradiction in terms underlying

such a plea. Enjoying suit properties on Paguthi basis means paying in lieu of such enjoyment to the landlord a Paguthi or portion of the yield and to

say that such paguthi was paid by rendering service is a travesty of truth. When that be the position, it is rather surprising that the trial Court could

have jumped to the conclusion about the first defendant being a cultivating tenant merely because some of the witnesses examined on the side of

the defendants were able to say that it is the defendants who have been cultivating the suit properties by their own physical labour. Though

cultivation of lands by a person contributing his own physical labour or that of any member of his family in the cultivation on any land belonging to

another is a vital ingredient, the primary requirement that such cultivation should be under a tenancy agreement express or implied cannot be

ignored or given a go-bye. Even a careful scanning through of the Judgment of the trial Court would disclose a conspicuous omission to advert to

this vital condition precedent about the existence of a tenancy agreement express or implied. This having been found lacking in the trial court

judgment by the lower appellate Court, in my view, legitimately and rightly, and having regard to the further admitted fact of the land having been

given as remuneration for the services rendered to the Mutt as it is futile to contend that the appellants can be considered to be a tenant at all leave

alone the claim of being a cultivating tenant in accordance with either the provisions of the Record of tenancy. Act or the provisions of the Tamil

Nadu Act 47 of 1961. In view of the above findings of mine, the plea or objection raised to the judgment and decree of the lower appellate court

based on Section 16-A of the Act also pales into insignificance. Even that apart, the embargo or ouster of jurisdiction u/s 16-A of the Act has been

held to be not absolute in terms under all circumstances. The very Full Bench judgment of this Court in Periathambi goundan vs. District Revenue

Office (FB) (supra) relied upon for the appellant, while considering the ambit, amplitude and extent of interdict imposed by the said section has in

categorical terms declared the position that the controversy as to whether a particular piece of land has been let out for cultivation by a tenant or

not being one constituting the jurisdictional issue cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act

alone since to hold so would amount to permitting statutory authorities to assume jurisdiction erroneously. As a matter of fact, in some of the

subsequent decisions of this Court rendered, taking into account even the ratio of the above Full Bench judgment, it was held that the authorities

under the Act cannot be said to have exclusive jurisdiction to decide the issue as to whether the lands have been let under a tenancy agreement and

the civil Court is not totally precluded from dealing with a claim of a landlord in any and every or all circumstances. In the light of the very case

pleaded, in my view, the question of relationship of landlord and tenant cannot be said to subsist and the lands cannot be said to have been held by

the first defendant or defendants under a tenancy agreement express or implied. In view of the above, the question of applying the provisions

contained in Section 16-A of the Act to the case on hand does not arise at all.

As per the decision of the lower appellate Court on the merits of the claim and the grievance made on the basis of the decision of the Supreme

Court contained in T.D. Gopalan vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras (Supra), I am of the view that

the grievance is not well merited and does not deserve to be countenanced. The Supreme Court has declared while dealing with the duty of an

appellate Court to deal with the reasons given by the trial Court in rejecting the testimony of witnesses that if the trial Court has given cogent and

detailed reasons for not accepting the testimony of the witness, the appellate Court in all fairness to it ought to deal with those reasons before

proceedings to form a contrary opinion about accepting the testimony which has been rejected by the trial Court. As a matter of general principle,

there can be no dispute over the said decision of law. But in my view the lower appellate Court cannot be said to have violated such statement of

law declared by the Supreme Court on the facts and circumstances of the case. Apart from the fact that the lower appellate Court has given cogent

and convincing reasons, it has appreciated the evidence as it ought to and as it also deserve unlike the trial Court and I cannot find any patent error

of law or perversity or approach in the manner of analysis or method of appreciation of the evidence on record by the lower appellate Court.

Consequently, there is no infirmity in the judgment and decree of the lower appellate Court to warrant interfitence in this appeal. The Second

appeal, therefore, fails and shall stand dismissed. No costs.

Learned counsel for appellants represents that his application for recording himself as a tenant under the Act is pending before the authorities.

This judgment shall not preclude the authorities from considering such application and passing orders in accordance with law.