Arumugam vs Navaneetham and Others

R. Mala, J.—The second appeal arises out of the judgment and decree dated 27.01.2005 in A.S. No. 83 of 2004 on the file of the Principal Sub-Court, Mayiladuthurai, confirming the judgment and decree dated 28.04.2004 in O.S. No. 96 of 2002 on the file of the District Munsif Court, Sirkazhi.

The averments made in the plaint are as follows:-

(i) The plaintiff has purchased the suit property on 24.11.1993 and she is the owner of the same. The plaintiff was cultivating the lands and the defendant, who is the plaintiff sister''s husband, was helping the plaintiff in raising crops and she also paid Kists. From 20.03.2002, since the defendant did not desire the plaintiff to cultivate the lands, he threatened the plaintiff and did not allow the plaintiff to carry on the cultivation work in the suit property. The defendant has no right to interfere with the plaintiff''s cultivation work. Therefore, the plaintiff constrained to file a suit for permanent injunction restraining the defendant from interfering with the suit property or as alternative relief sought for recovery of possession of the suit property against the defendant and to surrender possession of the same to the plaintiff with future profits.

The gist and essence of the written statement filed by the defendant are as follows:

(i) The defendant denied the allegations mentioned in the plaint. The defendant is in possession of the suit property as cultivating tenant by way of oral lease agreement. The defendant can claim right under the cultivating Tenants Protection Act. The suit property is not in possession and enjoyment of the plaintiff and therefore, prayed for dismissal of the suit with costs.

The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1 to P.W.3, D.W.1 to D.W.3 and Exs.A1 and A2; Exs.B1 to B8, decreed the suit. Aggrieved against the judgment and decree passed by the trial court, the defendant preferred an appeal in A.S. No. 83 of 2004 on the file of the Principal Sub-Court, Mayiladuthurai.

The learned First Appellate Court has considered the arguments advanced on either side and framed necessary point for consideration and confirmed the Judgment and Decree passed by the Trial Court and dismissed the appeal. Against the Decree and Judgment passed by the first Appellate Court, the present second appeal has been preferred by the defendant/appellant.

At the time of admission, the following substantial questions of law have been framed:

"(i) Whether the lower Appellate Court misconstrued and misappropriated the evidence on record?

(ii) In the absence of any prayer for mesne profits, whether the Courts below erred in granting the relief of mesne profits?"

Challenging the concurrent findings of both the Courts below, learned counsel for the appellant/defendant submits that the suit for alternative prayer for recovery of possession of the suit property is not maintainable and to substantiate his arguments, he relied upon the decision of this Court reported in C.R. Umapathy Vs. D. Sathyanarayana Chettiar . He further submits that the appellant had also filed Ex.B4 Kists receipts, but both the Courts below have not considered the same. Even though the plaintiff/1st respondent is the owner of the suit property, the appellant/defendant is the cultivating tenant and enjoying the property and he cannot be dispossessed by way of decree. Therefore, he prayed for allowing the second appeal.

Resisting the same, learned counsel for the respondents 2 and 3 submits that the appellant is none other than the brother-in-law of the first respondent and he has assisted her in cultivating the lands, but subsequently the appellant disputed the possession of the first respondent. Therefore, the first respondent constrained to file the suit for injunction, alternatively for recovery of possession and the suit was properly assessed and Court fee has been paid. In such circumstances, the suit is maintainable, so the decision relied upon by the learned counsel for the appellant is not applicable to the facts of the present case. He further submits that the appellant is not a tenant in the suit property and he has only assisted the first respondent in raising crops and the amount paid by the plaintiff was utilised by the appellant/defendant and paid the same as Kists. Merely because the appellant/defendant filed Ex.B4 Kists receipts, it will not prove his possession as a tenant. Because the chitta also stands in the name of the first respondent. Both the Courts below have rightly considered the above aspects and therefore, he prayed for dismissal of the second appeal.

Considered the rival submissions made on both sides and perused the materials available on record.

It is seen from the records that the appellant/defendant is none other than the brother-in-law of the first respondent/plaintiff. According to the appellant/defendant, the plaintiff/first respondent is the owner of the suit property and the appellant/defendant is the cultivating tenant. But whereas the first respondent stated that she is the owner of the suit property and the appellant had assisted her in cultivating the lands.

On perusal of the evidence of D.W.1/defendant/appellant, it reveals that appellant has cultivated the suit lands for 11 years and he is a cultivating tenant, but he has no accounts for the same. He fairly conceded that he is not recorded as a cultivating tenant in the Revenue records. In his Cross-examination, he fairly conceded that he does not know that in which year and month, he has taken possession of the suit lands on lease. Further he deposed that at the time of taking lease, one Raman, Raman''s brother Shanmugam and Selvaraj were along with the appellant. The said Selvaraj was also examined as D.W.2.

D.W.2 in his evidence deposed that he is working under the defendant and he is earning daily wages. The motor in the suit land is belonging to the owner of the property. His candid admission is that the defendant''s brothers are having own lands at Nangoor.

Considering the evidence of D.W.1 and D.W.2, I am of the view, no reliance can be placed on Exs.B5 to B7/receipts, because the appellant/defendant has also possessed own lands.

According to the evidence of D.W.3/Vaidyanathan, who is an V.A.O., he deposed that the appellant/defendant has cultivated the suit lands and he also issued chitta and adangal. Ex.B8 chitta was issued by him. In his cross-examination, he deposed that he is not having any record to show that the compensation amount is paid to the appellant. He fairly conceded that the appellant was not recorded as a cultivating tenant. It is pertinent to note that adangal was not filed to show that the appellant/defendant is cultivating the suit property as lessee.

The only point to be decided is that whether the suit is maintainable? Learned counsel for the appellant relied upon the decision of this Court reported in C.R. Umapathy Vs. D. Sathyanarayana Chettiar and submits that the suit is filed for declaration and injunction. An application was filed seeking permission to amend the plaint adding relief of possession. When the prayer for injunction is not sought to be deleted, the prayer for possession cannot be even claimed as an alternative relief. It is appropriate to incorporate para-12, which runs as follows:

"12.....It is needless to say that both the prayers, namely injunction and possession, do not go together, as they are mutually opposite prayers. While considering the pleadings of the parties, it is settled principle that though the defendants can take contradictory pleas, the plaintiffs should be clear in their plea and prayer in the main suit. It is not the case of the plaintiffs that they are in possession and so they seek injunction and in case the Court comes to the conclusion that they are not in possession, alternatively, they are entitled for the relief of possession. On the other hand, it is their case that they have omitted to seek the relief of possession by over-sight. Therefore, the question of considering the relief of possession as an alternative relief also does not arise."

In the above decision, it was specifically mentioned that at the time of filing suit, the plaintiff sought for injunction and in case if the Court comes to the conclusion that they are not in possession, alternatively, they are entitled for the relief of possession. So the argument advanced by the learned counsel for the appellant in this regard does not merit acceptance. In the above decision, the suit was filed for declaration of title and injunction. During pendency of the suit, after commencement of trial, the plaintiffs filed an application seeking for amendment of the plaint to add the relief of possession. In para-14 of the aforesaid decision, it was specifically mentioned that the plaintiffs have not pleaded in spite of due diligence, they could not raise the plea before the commencement of trial. So the Civil Revision Petition was dismissed.

Considering the above decision along with the facts of the present case, at the time of filing suit, the plaintiff can seek the alternative relief. In the case on hand, the plaint has been properly drafted and for alternative relief, Court fee has also been paid. In such circumstances, the suit for alternative relief for recovery of possession of the suit property is maintainable. Both the Courts below after considering oral and documentary evidence have come to the correct conclusion. Once the Court comes to the conclusion that the first respondent/plaintiff is the owner of the suit property or away from the suit property and once she prayed for recovery of possession, she is entitled to mesne profits. Accordingly, the substantial questions of law 1 and 2 are answered against the appellant/defendant.

For the foregoing reasons, the decree and judgment passed by both courts below does not warrant any interference and the same are hereby confirmed. The second appeal is liable to be dismissed and it is hereby dismissed.

In fine,

� Second Appeal is dismissed.

� The decree and judgment passed by both Courts below are hereby confirmed.

� Two months time is granted to the appellant/defendant to deliver the possession of the suit property to the respondents 2 and 3.

� There is no order as to costs.

� Consequently, connected Miscellaneous Petition is closed.