Jayarama Naidu vs Meenakshi Ammal and Another

The plaintiff in O.S.No. 34 of 1981 on the file of the District Munsif Court, Cuddalore is the appellant herein. The plaintiff instituted the said suit

for redemption, recovery of possession and for future mesne profits. The trial Court granted preliminary decree for redemption from the first

defendant and directed the plaintiff to go before the Revenue Court for recovery of possession from the second defendant as the second defendant

has since been recorded as a cultivating tenant. Being aggrieved, the plaintiff preferred A.S. No.3 of 1985 on the file of the District Court,

Cuddalore which was transferred to the file of the Sub Court, Cuddalore and taken on file as A.S.No. 2 of 1985.

The first appellate court confirmed the judgment and decree of the trial court and dismissed the appeal. In other words the plaintiff suit for

redemption had been decreed and the plaintiff prayer for recovery of possession had been negatived with a direction that the plaintiff has to go

before the Revenue Court for recovery of possession as the second defendant is a cultivating tenant. Being aggrieved the present Second Appeal

has been preferred by the plaintiff insofar as the relief of recovery of possession had been negatived.

At the time of admission, the following substantial question of law was framed by this Court:

When the order obtained by the 2nd respondent before the Record Officer being a collusive one and obtained ex parte without making the

plaintiff a party, is the learned Subordinate Judge right in holding that the 2nd respondent is entitled to the benefits of Cultivating Tenants Protection

Act and the Civil Court cannot go into that question ""?

Heard Mrs. N. Krishnaveni, learned counsel appearing for the appellant and Mr.S.K. Rakhunathan for the respondents. For convenience, the

parties will be referred as arrayed before the trial court.

The plaintiff who is a purchaser of equity of redemption under Ex.A.2 dated 26.6.1980 had succeeded in part insofar as the preliminary decree

for redemption has been passed and the said aspect need not be gone into as the respondents have not challenged the decree passed by the courts

below. Admittedly, the suit property was owned by one Sampath who executed under Ex.A.1 dated 27.6.1977 an usufructuary mortgage in

favour of the first defendant for securing repayment of Rs. 2000. The plaintiff who had purchased the equity of redemption under Ex.A.2 on

26.6.1980 caused a notice through his Advocate under Ex.A.3 dated 14.8.1980 seeking redemption and for recovery of possession. The first

defendant had sent a reply Ex.A.4 dated 23.8.1980. Referring to Ex.A.5, proceeding dated 2.3.1981, issued by the Deputy Tahsildar, Cuddalore,

the plaintiff contended that the second defendant was never in possession, nor the second defendant is a cultivating tenant of the suit property.

Thereafter during the year 1983, as seen from Ex.A.6, A.7 and A.8 respectively dated 29.9.1983, 29.9.1983 and 31.3.1981 at the instance of

the second defendant based upon the evidence of the defendants 1 and 2, the Record of Tenancy Tahsildar recorded the second defendant as a

cultivating tenant. Admittedly the proceedings to record the second defendant as a tenant under the Tamil Nadu Agricultural Lands (Record of

Tenancy Rights) Act proceeded behind the back of the plaintiff and as if the first defendant is the Landlord while the second defendant is the tenant

under the first defendant.

The second defendant had put forward a case that he had entered into an agreement of lease on 27.8.1977 under Ex.B.4 with the first

defendant and he had remitted the rents every year as per the endorsement made on Ex.A.4. The second defendant claimed that the suit lands

were leased out to him by the first defendant under Ex.B.4 dated 27.8.1987 and he had been recorded as the cultivating tenant under the first

defendant as seen from Ex.B.6 dated 4.4.1981. The second defendant further sought to rely upon Ex.B.7 dated 13.4.1982, a sugarcane cutting

order issued by the E.I.D. Parry Company in his favour. Ex.B.7 in no way supports the second defendant''s claim as it is silent with respect to

survey field village etc.,

It is fairly stated by the counsel for either side that Ex.A.1 the Usufructuary mortgage deed in no way restricts the power of the mortgage from

leasing out the property to anyone. Ex.A.1 provided that the mortgagor may redeem the property after the expiry of five years commencing with

the month of Chithirai or the month of Aadi. The five years period stipulated in Ex.A.1 came to an end on 26.6.1982.

The plaintiff had purchased the suit property as already mentioned under Ex.A.2 from the said Sampath and the plaintiff had undertaken to

discharge the said Ex.A.1 usufructuary mortgage. Immediately after the purchase of equity of redemption under Ex.A.2 the plaintiff caused the

notice Ex.A.3 on 14.8.1980 within the period of redemption and addressed the first defendant for redemption while offering to pay the amount due

and payable under Ex.A.1 mortgage.

In the reply Ex.A.4 dated 23.8.1980, the first defendant alleged that she had leased out the property to one Velu Padayachi, son of Ramalinga

Padayachi and he is in possession and enjoyment as cultivating tenant, besides claiming that the first defendant is entitled to the well and irrigation

right in well situate in the Bogiam land in respect of the land owned by her on the northern side. The first defendant also disputed the claim of the

plaintiff that he is entitled to the benefits of Tamil Nadu Act 40 of 1979 besides pointing out there is still time for redemption.

The second defendant as seen from Ex.A.5 by an application dated 2.3.1981 applied to the Record of Tenancy Tahsildar to record his name

in respect of the suit property while claiming that he is a tenant since 1977. As seen from Ex.A.6, the second defendant had gone before the

Record of Tenancy Tahsildar and deposed that he had been cultivating the land for the past 3 or 4 years and requested that his name be recorded

as a cultivating tenant in T.R.16 of 1981. As seen from Ex.A.7 the first defendant had gone before the Record of Tenancy Tahsildar and deposed

that she has no objection for the second defendant being recorded as a cultivating tenant in respect of the suit property. Interestingly as disclosed

by Ex.A.7 the first defendant had claimed that her husband was the owner, her husband died 7 or 8 years prior, that for four years the second

defendant is cultivating the land and that she has no objection for the second defendant being recorded as the cultivating tenant. As Ex.A.7 is

relevant and it is essential to extract the very deposition recorded before the Record of Tenancy Tahsildar, a statutory authority. Ex.A.7 reads thus:

Based upon the said statement of the first and second defendants, the Record of Tenancy Tahsildar as seen from Ex.A.8 recorded the name of the

second defendant as a cultivating tenant in respect of the suit property under the first defendant, the self styled landlord.

Even prior to Ex.A.1 mortgage dated 27.6.1977 in respect of the suit property, the first defendant was a lessee as seen from Ex.A.10

commencing from 7th May 1971 onwards in respect of the 2 acres and 10 cents which includes the suit property. It is seen from Ex.A.10 the very

same first defendant had remitted the rent in kind on 12.6.1972, 22.2.1973 and 13.2.1974 as per entries of acknowledgment made on Ex.A.10.

Based upon Ex.A.10 it is being pointed out rightly by the counsel for the appellant that the first defendant who was already a lessee had

advanced money and had obtained the usufructuary mortgage deed Ex.A.1 and it was emphasised that the first defendant was continued in

possession as usufructuary mortgagee and there was no necessity or reason for the first defendant to lease out the property to a third party. Third

aspect is being emphasised by the counsel for the appellant.

The learned counsel for the appellant next relied upon Ex.B.4 produced by the first defendant being the lease deed executed between the first

defendant and the second defendant Ramalinga Padayachi. The lease deed also proceeds on the premises that the first defendant is the owner of

the suit property and it is being leased out on a rent of Rs. 200 per annum to the second defendant. Ex.B.4 contains the endorsements of payment

of rent on 29.8.1978, 1.9.1979 and 4.9.1980. This document Ex. B.4 is being challenged by the plaintiff as one created just to defeat the

plaintiff''s right to recover possession on redemption. There is force in this contention put forward by the counsel for the appellant. Admittedly, the

first defendant is not the owner and her claim that she is the owner of the property is falsified by her admission and by the usufructuary mortgage

deed Ex.A.1.

It is claimed by the second defendant that a lease was granted by the first defendant in his favour for an indefinite period as if he is the owner of

the suit property. Admittedly the first defendant is only an usufructuary mortgagee and not the owner of the property. Further the first defendant

herself was the lessee of the suit property all these years and she had been cultivating the land as a lessee.

The learned counsel for the appellant next pointed out that Ex.B.5, the proceedings of the Record of Tenancy Tahsildar recording the second

defendant as a cultivating tenant under the first defendant is dated 31.3.1981, whereunder it has been stated that the first defendant has no

objection to record the second defendant as a tenant. The said proceedings also proceeds on the premises that the first defendant is the owner,

who had leased out the property to the second defendant.

As rightly pointed out by the counsel for the appellant after issuance of Ex.A.3 notice by the plaintiff on 14.8.1980, an application has been

filed on 2.3.1981 by the second defendant to record his name as a tenant, the first defendant as well as the second defendant had gone before the

Record of Tenancy Tahsildar only on 29.9.1983 and deposed that the second defendant is a tenant under the first defendant, the owner. Based

upon that Ex.A.8, and Ex.B.7 the Record of Tenancy Tahsildar has recorded the name of the second defendant.

The fact that much prior to the filing of the application Ex.B.5 dated 2.3.1981 the plaintiff had by Ex.A.3 notice dated 14.8.1980 sought for

redemption is not disputed. The Record of Tenancy proceeding admittedly proceeded behind the back of the plaintiff and on the basis that the first

defendant is the owner who had leased out the property to the second defendant. The Record of Tenancy Tahsildar had not verified as to who is

the owner of the property from the Permanent Land Register maintained by the Tahsildar. The Record of Tenancy Proceedings Ex.B.5 is

obviously a collusive proceeding and it is contended by the counsel for the appellant that such a collusive proceedings and that too behind the back

of the plaintiff is not binding on the plaintiff nor it would in any manner affect the right to secure possession of the suit property.

It is being contended by the counsel for the appellant that the lease put forward by the second defendant is a collusive one intended to defeat

the plaintiff''s right. There is no doubt that the proceedings Ex.B.5 is a collusive one and it proceeded as if the first defendant is the owner under

whom the second defendant is a lessee and he had no objection for the recording.

It may be that the first defendant may fall under the definition of the Landlord as defined in the Tamil Nadu Cultivating Tenants Protection Act

as a person who is entitled to receive rent. The first defendant admittedly is not the owner. The expression Landlord has been defined in Section

2(e) of the Tamil Nad Cultivating Tenants Protection Act, 1955 and it reads thus:

LANDLORD"" in relation to a holding or part thereof means the person entitled to evict the cultivating tenant from such holding or part.

Whereas Section 2(5) of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 defines the expression ""LAND OWNER"". It

runs thus:

LAND OWNER"" The owner of the land let for cultivation by a tenant and includes the heirs, assignees or legal representatives of such owner or

persons deriving rights through him.

Relying upon this definition, the learned counsel for the appellant rightly contended that the first defendant is not a land owner and the recording

as if the first defendant is the owner is not only collusive but a fraudulent act which would not confer any right on the second defendant.

Mr.S.K. Rakhunathan learned counsel for the contesting respondents while admitting that the first defendant is not the owner sought to sustain

the recording on the basis that the first defendant is a possessory mortgagee as defined in Section 2(6) of the Tamil Nadu Agricultural Lands

Record of Tenancy Rights Act, 1969 and contended that the second defendant is a tenant as defined in Section 2(8) and therefore the record of

tenancy proceedings is in order and valid.

Form - III which has been marked as Ex.A.5, is the application filed by the second defendant before the Record of Tenancy Tahsildar to

record his name. It has been stated by the second defendant that the first defendant is the owner of the land and not as a possessory mortgagee or

an intermediary. The expression intermediary has been defined in Section 2(3) of the Record of Tenancy Rights Act, 1969 and it reads thus:

Intermediary means any person, who not being an owner or a possessory mortgagee has an interest in land by virtue of tenancy agreement and is

entitled by reason of such interest, to the possession thereof but has transferred such possession to others.

But Form-III filed by the second defendant would show that the first defendant claimed himself to be the owner and the very lease deed Ex.

B.4 also would show that the first defendant as owner leased out to the second defendant. In the light of the fact that the proceedings were initiated

behind the back of the plaintiff and after his redemption under Ex.A.3 dated 14.8.1980, obviously the recording is calculated move and a collusive

action on the part of the defendants 1 and 2 with the only object of defeating the plaintiff''s right to recover possession.

The learned counsel for contesting respondents submits that the proceeding is not collusive and even if so, according to the learned counsel for

the defendants it is open to the first defendant to lease out the land even during the pendency of the suit for redemption and even when the doctrine

of lis pendens operates.

The learned counsel for the contesting defendants also contended that the second defendant has a vested right under the Cultivating Tenants

Protection Act which give him the benefit to continue in possession of the same and therefore the plaintiff cannot take recourse to the procedural

law available under the Common Law which will not prevail and the Special rights which the second defendant has secured by reason of the

protective enactment would prevail and has to be worked out liberally and benefically in favour of the cultivating tenant.

It was further contended that the special has to prevail over the general, as the second defendant''s right as a cultivating tenant and the rights

that flow from it have to be given due weight and respect. In this respect the learned counsel for the defendants relied upon the decision of this

Court reported in Ganesa Vanniar v. Vengusamy, 91 L.W. 292.

The learned counsel for the defendants relying upon the said Division Bench Judgment vehemently and in his usual inimitable style contended

that notwithstanding the fact that the lease was granted at a time even when demand was made to redemption or the mortgage suit was pending,

the statutory rights which had been acquired by the second defendant cannot be thwarted and as has been held by the two courts below, the

plaintiff has to go before the Revenue Court and work his remedies under the Tamil Nadu Cultivating Tenants Protection Act, 1955. Mr.V.

Rakhunathan, heavily relied upon the following passage in Ganesa Vanniar v. Vengusamy, 91 L.W. 292:

In those circumstances, therefore, the first defendant cannot project his right under the common law as a purchaser who is entitled to possession

of the properties which are the subject matter of the purchase, free from obstruction and illogically seek for removal of obstruction even by a tenant

who is a cultivating tenant and who has obtained under the special law certain preferential protections and benefits which cannot be lightly rejected.

If, therefore , on the date when the first defendant sought for removal of obstruction under the common law, the plaintiff did have a vested right in

him under the Protection Act which gave him the benefit to continue in possession of the same, then the procedural law available under the

common law cannot prevail, and the special right which the plaintiff has, by reason of the protective enactment, would prevail and has to be

worked out liberally and beneficially in favour of the cultivating tenant. We are afraid, we do not share the view of the learned trial Judge that the

doctrine of lis pendens would eclipse the special vested statutory right in favour of the plaintiff. We have already explained ourselves and given our

reasons as to why such a special right cannot be buttressed or ignored by reason for certain common law rights. As the special has to prevail over

the general, the plaintiff''s right as a cultivating tenant and the rights that flow from it have to be given due weight and respect. The doctrine of lis

pendens is again a mischievous remedy available under the CPC so as to thwart certain dealings between the parties during the pendency of a

particular litigation. But, the principle behind the doctrine cannot do away the vitals of the special benefits conferred on a cultivating tenant by

statute which has sprung from agrarian legislation and which has a specific purpose to serve in our and other States. In this view of the matter, we

are unable to accept that Ex.P. 1 is hit by the doctrine of lis pendens and that the plaintiff is not entitled to project his statutory right successfully as

against the claim of the first defendant under the common law as a purchaser of property in public auction in execution of a mortgage decree.

Mr. Rakhunathan, learned counsel for the contesting defendants also relied upon the judgment of this court reported in Ayyan v. Pechi and

another, 1964 MLJ (I) 274, and contended that the second defendant being cultivating tenant in relation to the suit land is protected against

eviction by or at the instance of his landlord and the protection may also avail him as against his Landlord in turn.

The learned counsel for the appellant referred to the following passage in this judgment and contended that there is no relationship of landlord

and tenant between the plaintiff and the second defendant and if the contention of the second defendant is accepted it would mean that what a

trespasser in the land cannot directly get against the true owner he can achieve by alleged sub-lease namely the second defendant under the first

defendant and get the immunity under the Act, which is not impermissible and such is not the legislative intendment besides it will lead to absurdity

being perpetuated. The following passage is being relied upon by the counsel for appellant.

It will thus be seen that the cultivating tenant is protected against eviction only by or at the instance of his landlord. This protection may avail him as

against his lessor, his landlord, the first defendant, but cannot avail him as against the plaintiff. Between the plaintiff and the appellant there is no

relationship of landlord and tenant. The wisdom underlying this provision can be illustrated by imagining what would happen if the contrary position

contended for by the appellant were to be accepted. If as the learned counsel contends, the appellant is entitled to the benefit of this immunity from

this eviction, it would mean that what a trespasser in the land cannot directly get against the true owner, he can secure to a sub lessee from him by

simply pretending to let out the land to the sub lessee. Surely the law cannot be so absurd as that. The view which I have indicated above has been

taken by no less than three Judges of this Court, Panchapakesa Ayyar, J in CRP. No. 353 of 1957 Ramaswamy J., in Pubbin alias Perumal

Goundan v. Govinda Mudaliar and Rajagopalan J., in Siluvai Fernando v. Pancres Loan. I followed the last two mentioned judgments in my own

judgment in Second Appeal Nos. 541 and 619 of 1960 dated 10th December, 1962.

In Pubbiri v. S. Govinda, AIR 1958 Mad.147 it has been held that a cultivating tenant does not include mere intermediary or his heirs and a

person who is incapable of creating a tenancy and being a mere interloper or trespasser claiming under such person cannot claim the benefit of

Tamil Nadu Act 25 of 1955. It has been held thus:

Therefore, this provision does not in any way conflict with S.3 of the Act XXV of 1955, since all that the Magistrate has to do is to put back the

temple in possession of the properties covered by the certificate. S.3 of the Act XXV of 1955 defines: a cultivating tenant in relation to any land

means a person who carries on personal cultivation on such land under a tenancy agreement, express or implied, and includes a tenant holding over

and heirs of such persons but does not include mere intermediary or his heirs. This assumes that the person under whom the actual cultivator

purports to cultivate is a person capable of creating a tenancy. If on the other hand that person is in law incapable of creating any such tenancy and

is a mere interloper or trespasser, the persons purporting to cultivate under such a person purporting to cultivate under such a person cannot claim

the benefits of Act XXV of 1955. Therefore, mere is no question of any repugnancy or contradiction or overlapping between S.87 of Act XIX of

1951 and Sec. 3 of Act XXV of 1955.

Reliance was also placed on the judgment of this Court reported in Siluvai Fernando v. Pancros Leon, 71 L.W. 461 where Rajagopalan, J.,

held thus:

What the Revenue Divisional Officer had to decide was whether on the evidence on record the respondent was a cultivating tenant as defined by

the Act. All that the respondent alleged in his application was that he executed a rent deed to the petitioner''s wife. There was no allegation that the

petitioner''s wife, as lessor or otherwise, came within the definition of ""landlord"" in S.2(c) of the Act. The Revenue Divisional Officer no doubt

found that the respondent''s case, that he had been cultivating the lands before the petitioner obtained delivery of possession was true. But the

Revenue Divisional Officer failed to consider and he certainly failed to decide who was the ""landlord"" and whether the respondent was a cultivating

tenant. If there was only an agreement between the petitioner''s wife and the respondent, and the petitioner''s wife was not the landlord within the

meaning of S.2(c) of the Act, the question would arise whether the respondent was a cultivating tenant at all as defined by the Act. It was not

disputed that the lands belonged to the petitioner. His title to the lands as against his wife was also established in O.S.No.134 of 1955. The

respondent never pleaded or proved any agreement, express or implied as between him and the petitioner. In such circumstances he could not

claim to be a cultivating tenant who held directly under the petitioner. If the landlord was the petitioner, and on that basis the respondent could not

be the cultivating tenant, and if the petitioner''s wife was not the landlord, any agreement with her would not make the respondent a cultivating

tenant. The Revenue Divisional Officer had to consider, as I said, and decide whether the respondent was a cultivating tenant, and that question

was not considered or decided. That vitiates the order of the Revenue Divisional Officer.

Per Contra, it is being contended by the counsel for the contesting defendants that the first defendant being an usufructuary mortgagee is

entitled to lease out the land to the second defendant and the second defendant would always continue as a cultivating tenant who had been

inducted by the first defendant even after redemption and the right of the second defendant will not in any manner be affected either by redemption

or by a decree for redemption being passed and the tenant under the usufructuary mortgage is well protected by the Tamil Nadu Cultivating

Tenants Protection Act. In the present case it is being contended by the counsel for the respondents that the second defendant had already been

recorded as a cultivating tenant and therefore he is on a stronger ground and the plaintiff/appellant has to seek his remedy before the appropriate

forum for eviction of the cultivating tenant and the civil court has no jurisdiction to evict or dispossess him.

Reliance is placed on the decision of this Court reported in Chandrasekaran Vs. Kunju Vanniar and Others, Veeraswami C.J., speaking for

the Full Bench held that a tenant under usufructurary mortgagee can claim protection against the mortgagor. The Full Bench overruled the earlier

two decisions of this Court in Ganapathi v. Ayyakkannu, 1961 (I) MLJ 217 and Ramaswami Naidu v. Marudaiveera Moopan, 1959 (I) MLJ 25.

The Full Bench analysed the statutory provisions of the Tamil Nadu Cultivating Tenants Protection Act, 1955 and held thus:

To bring about that result, the precedents are that there should have been in the origin a tenancy agreement, express or implied, and under that

agreement, to which the person is a party, he should carry on personal cultivation on the land. If the premises are granted, though the agreement of

tenancy, express or implied, has terminated but the person mentioned in the first part of the definition continues in possession of the land, he will be

a cultivating tenant. The first part of the definition does not specify as between whom and whom the tenancy agreement mentioned is contemplated.

The lease may have been granted by the owner of a usufructuary mortgagee or even a lessee of the land. But the person who carries on personal

cultivation of the land, should derive his right under a tenancy agreement, express or implied, with a person entitled to enter into it who may be any

one of those persons we have just now mentioned as instances. To attract the inclusive definition, the two requisites are determination of a tenancy

agreement and the person, who was within the first part of the definition, continues in possession of the land. If those requisites are satisfied, the

person continuing in possession of the land will be a cultivating tenant. The inclusive definition does not visualize that, after the determination of

tenancy if the person as defined in the first part of the definition continues in possession of the land, he would not be a cultivating tenant unless there

is a contractual relationship, express or implied with his landlord. We say so because a landlord, as noticed supra, is defined not in terms of a

person who let out the land but as a person, entitled to evict the cultivating tenant. No contractual relationship is necessary or is implied for

purposes of the definition. The grounds of eviction which we enumerated above should be understood and related to a landlord as defined and not

in terms of a landlord as contemplated by the Transfer of Property Act. Under the latter Act, a landlord necessarily implies contractual relationship

and there should be a landlord as well as a tenant and as between them, the basis of relationship should be the tenancy agreement. But that will be

so only in respect of the first part of the definition of cultivating tenant. When we take the inclusive definition, it deals with a case of a situation

arising after determination of tenancy, so that the contractual relationship need not exist as the basis for entitling the landlord either to collect rent or

evict. Reading the definitions of cultivating tenant and landlord it is further clear that, in order to be a cultivating tenant for an extended period, the

lessor need not necessarily have the capacity or right to confer it. All that is essential for the inclusive definition to apply is that in the origin of the

tenancy it should have resulted from a tenancy agreement express or implied, and, for purposes of inclusive definition, it does not matter whether

the original lessor is in the picture or not. The test to find out whether a person is a landlord is not that whether there is a direct agreement between

him and the tenant, but whether the person who claims to be the landlord is entitled to evict on the grounds mentioned in the Act, it is in the light of

this position, in our opinion, we have to appreciate the scope and effect of sub section (1) of Section 3. When it speaks of at the instance of his

landlord, it means at the instance of the person entitled to evict the tenant. The word, his, does not make any difference, for the person entitled to

evict him will be his landlord at any given time. The same meaning to the landlord has to be given in clauses (b), (c) and (d) as well of Sub Section

(2) of Sections 3"".

The Judgment of the Full Bench still holds good and is a binding authority.

On the other hand, the learned counsel for the appellant/plaintiff with all enthusiasm points out that the alleged lease by the first defendant in

favour of the second defendant in terms of Ex.B.4 and the recording of the second defendant as a tenant under the first defendant in terms of

Ex.A.1 equivalent to Ex.B.5 being fabricated and a Collusive proceeding with a fraudulent object to defeat the rights of the plaintiff cannot be

pressed into service by the defendants to avoid or defeat the right of the plaintiff to seek redemption and recovery of possession as the second

defendant is not a tenant in reality or actually.

Mere recording of tenancy of the second defendant under the first defendant according to the learned counsel apart form being collusive is of

little consequence as such a recording is non est in law, unenforceable not binding on the plaintiff and confer not an iota of tenancy. According to

the counsel for the appellant/plaintiff a bona fide tenancy under the Usufructuary mortgage is protected by the Tamil Nadu Cultivating Tenants

Protection Act if it is found that the tenant had been inducted by the Usufructurary mortgagee during the currency of the mortgage and before a

demand for redemption being made.

According to the learned counsel for the appellant the record of tenancy rights proceedings being collusive non est and not binding on the

plaintiff. It is further rightly being contended that the second defendant was never a tenant in possession of the suit property and the said documents

are created or fabricated only with a view to defeat the plaintiff''s claim and the very recording is after the demand for redemption and after

institution of the suit. The recording behind the back of the plaintiff and that too as if the first defendant is the owner and the lease by the first

defendant as owner as seen from Ex.B.4 would establish beyond doubt that the said lease deed B.4 and the subsequent proceedings are all

brought up documents with, fraudulent intent to defeat the plaintiff''s claim for possession.

In the reply notice, the first defendant had suggested a different person as the cultivating tenant while in the written statement totally a different

person is sought to be suggested or made out as a tenant with an explanation that the name of the individual has been given incorrectly instead his

father''s name has been set out. This is one of the circumstances which has to weigh with the Court as the conduct of the first defendant and the

collusion between the first and 2nd defendant is apparent and obvious.

The present suit has been instituted on 21.1.1981. Even prior to that on 14.8.1980 under Ex.A.3 the plaintiff caused a legal notice demanding

redemption while offering to pay the mortgage debt due under Ex.A.3. The first defendant had sent a reply on 23.8.1980 under Ex.A.4. Only

thereafter, on 2.3.1981 the second defendant had applied to the Record of Tenancy Tahsildar to record his name while impleading the first

defendant alone as the land owner. The second defendant is very much aware of the ownership of the land and first defendant being a mortgagee.

The defendant 1 and 2 appeared on the same date and supported each other. In fact the first defendant had deposed as seen from Ex.A.7 i.e., she

is the owner of the land for 7 or 8 years, the second defendant is the tenant and he has been paying the rent regularly as a tenant.

Admittedly, the lease deed Ex.B.4 had not been placed before the Tahsildar. In Ex.B.4 also the first defendant claimed that she is the owner

and in that capacity she has leased out the property. A perusal of Ex.B.4 would show that it is not a true or genuine document, but it has been

created subsequently with the object of defeating the plaintiff''s claim for possession. Admittedly neither the plaintiff nor the previous owner

Sampath has been impleaded to the record of tenancy proceedings.

The cumulative effect of these material facts which had taken place after the institution of the suit leads to a conclusion that the proceedings

before the Record of Tenancy Tahsildar is not only collusive but also a fraud played on the said statutory authority. Fraud vitiates the entire

proceedings. Collusion is apparent. The legal position is well settled and a usufructuary mortgagee of an agricultural land is entitled to lease out if

there is no prohibition or stipulation to the contrary in the mortgage deed and a bona fide tenant under the Usufructuary mortgagee could claim the

right as a cultivating tenant even after redemption as has been held by the Full Bench in Chandrasekaran Vs. Kunju Vanniar and Others,

It is well settled and fundamental that fraud and collusion in any proceeding before Court or quasi judicial authorities vitiates the very

proceedings and they are non est and fraud necessarily renders it null and void.

Before further dwelling upon the question relating to collusion and fraud played by the defendants 1 and 2 in the recording of the second

defendant''s name it would be proper to refer to the statutory provisions of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act

1969, (Act X to 1969) hereinafter referred as the Record of Tenancy Rights Act for brevity.

While considering the effect of Section 3 as well as the effect of Section 16-A of the said enactment the Full Bench of this Court laid down that

the Record Officer an Appellate or Revisional authority will have the jurisdiction and the jurisdiction of the Civil Court in respect of any matter

which the Record Officer or the Appellate or Revisional Authority has to determine under the Act stands excluded from the date on which Section

16 (A) was introduced by the Tamil Nadu Act 34 of 1972 i.e., with effect from 27.11.1972. The Full Bench in Periathambi Goundan Vs. The

District Revenue Officer, Coimbatore and Others, considered the ambit and amplitude and the extent of the interdict imposed by Section 16-A of

the Act and held thus:

The next aspect to be considered, is the ascertainment of the ambit, amplitude and the extent of the interdict imposed by S 16-A of the Act, on

the exercise of jurisdiction by a Civil Court. We have already extracted S.16-A. Two things are clear from the language of the section. One is, the

interdict is on the jurisdiction of the matters which by or under the Act have to be determined by the Record Officer, the District Collector or other

Officer or authority empowered by the Act. The section itself does not enumerate as to what those matters are. The second is, the interdict is not

on any particular proceeding in the Civil Court, but only on the exercise of the jurisdiction in respect of matters. Controversies that come before a

court or a tribunal cannot be either pigeonholed or put in straitjackets. They may be of different varieties as well as different standards. For the

purpose of deciding the main controversy, the court or the Tribunal may have incidentally to decide a number of subsidiary questions or

controversies. Therefore, when the section itself does not enumerate the matters in respect of which the jurisdiction of the Civil court is ousted, one

will have to ascertain the said matters, with reference to the other provisions of the Act conferring power or jurisdiction on the authorities

functioning under the Act. Similarly a suit or proceeding in a Civil Court may involve the determination of several matters, some of which may be

within the jurisdiction of the authorities functioning under the Act and some others outside the jurisdiction. In such a case, the suit or proceeding as

such cannot fail unless it is of such a nature that it can be terminated solely on the determination of the matter falling within the jurisdiction of the

authorities functioning under the Act. Since the section itself does not bar the institution of the suit or a proceeding, it is unnecessary to labour the

second aspect any further. We shall now proceed to consider the first aspect of the matter. As far as the first aspect is concerned, as we have

pointed out already, we have to ascertain the matters covered by Sec. 16.A with reference to the other provisions of the Act dealing with the

matters to be determined by the authorities functioning under the Act. Two provisions in the Act which are relevant in this behalf are Section. 3(2)

and Section 14(1), which we have extracted already. Section 3(2) of the Act refers to the particulars which the record, directed to be prepared

under Sub-sec. (1) thereof, should contain, while Sec 14(1) provides for a certified copy of a record being annexed to an application made in

pursuance of the provisions of the enactments enumerated therein. The object of the Act as well as the provisions contained in Section 3(2) makes

it clear that a Record Officer or the appellate or revisional authority has to determine the following matters - (1) the survey number or sub- division

number, extent and local name, if any, of the land let for cultivation by a tenant; (2) the name and address of the land owner; (3) the name and

address of the intermediary, if any; and (4) the name and address of the tenant cultivating the land. It may be prima facie stated that these are the

four matters which are required to be determined by the Record Officer or the appellate or revisional authority under the provisions of the Act.

However, the necessity to determine these questions may occur in the context of different controversies and not purely on a specific dispute with

respect to these particulars alone. Even the determination of the particulars enumerated in S.3(2) cannot be in isolation in respect of any one

particular matter but can only be in the context of preparing the proved record showing the particulars in respect of the land and who is the tenant

and who is the landowner. For instance, the statutory requirement for the preparation of a record under the Act is that the land must have been let

for cultivation by a tenant. A controversy may arise whether the land has been let for cultivation by a tenant at all. The question to be considered is,

whether the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the Act so as to bar the

jurisdiction of the Civil Court under S.16-A. From the language of S.3(2) it cannot be stated that the determination of that controversy is wiihin the

exclusive jurisdiction of the authorities functioning under the Act, though the determination of that controversy is basic and fundamental to the

exercise of the jurisdiction by the Record Officer and the other authorities under the Act. The very object of the Act is to provide for the

preparation and maintenance of record of tenancy rights in respect of agricultural land and therefore if there is no tenancy in respect of a land, there

is no question of any further particulars being determined. This aspect is made clear even from the definition of the expression landowner occurring

in Sec. 2(5) of the Act, because according to the said definition, landowner means the owner of the land let for cultivation by a tenant and includes

the heirs, assignees or legal representatives of such owner or persons deriving rights through him. Consequently, the controversy as to whether a

particular piece of land has been let for cultivation by a tenant or not is one constituting the jurisdictional issue which a record officer has to decide

before he can determine any other matter under the Act. But that controversy cannot be said to be within the exclusive jurisdiction of the authorities

functioning under the Act, because to hold so will enable the statutory authorities to assume jurisdiction by erroneously deciding the jurisdictional

issue. If the controversy arises, the authorities functioning under the Act have necessarily to decide the same, because a decision on that

controversy alone will determine the jurisdiction of the authorities functioning under the Act. If the decision is that the land has been let for

cultivation by a tenant, then the Record Officer will have jurisdiction to determine the further particulars provided for In S.3(2) of the Act. If on the

other hand, the decision of the controversy is that the land has not been let for cultivation by a tenant, there is no question of there being any

tenancy rights in respect of the said land and consequently, there is no question of the Record Officer ascertaining or determining any further

particulars in this behalf. Therefore, if such controversy arises, that controversy cannot be said to be within the exclusive jurisdiction of the

authorities functioning under the Act, and any determination of that controversy by the authorities can be said to be only incidental to the

assumption of jurisdiction by the authorities under the Act. Subject to this qualification, it can be held that once the Record Officer or any other

authority functioning under the Act has come to the conclusion that the land has been let for cultivation by a tenant, the matters provided for in

S.3(2) have to be determined by the Record Officer, or other authority functioning under the Act, and to that extent the jurisdiction of the Civil

Court is barred under S.16 A of the Act.

The very same Full Bench has also considered in detail as to the jurisdiction of the Civil Court vis-a-vis the authorities constituted under Tamil

Nadu Act 10 of 1969, besides holding that Section 16-A did not in any way affect the jurisdiction of the Civil Court in respect of suits or

proceedings validly instituted before the coming into force of the said Section and pending on the date when the said Section came into force.

After the said Full Bench Judgment in Periathambi Goundan Vs. The District Revenue Officer, Coimbatore and Others, a Division Bench of

this Court in 98.L.W. 536 while holding that when the Legislature has constituted an authority conferring jurisdiction for the purpose of determining

questions arising under the enactment, and if that authority has exercised the jurisdiction vested with him and has rendered his determination, and

further more as against the said determination the machinery for further agitation has also been delineated in the Act itself and the general remedy

available by the Legislature and the jurisdiction of the Civil Court having been excluded, it has been held that the jurisdiction of the authority under

the Act namely under Tamil Nadu Act 10 of 1969 is ample enough to determine the controversy relating to the factum of demise, the subject

matter of demise, the existence of relationship landlord and tenant and the propriety, factual and legal of the demise and such other jurisdictional

issues. After referring to the Full Bench decision in Periathambi Goundan Vs. The District Revenue Officer, Coimbatore and Others, Nainar

Sundaram, J. as he then was, speaking for the Division Bench did not rule out the competency or jurisdiction of the Civil Court to test a plea

properly put forth in the lis, held that the order passed by the authority under the Act 10 of 1969 stands vitiated on any ground like fraud, collusion

etc., In that context, the learned Judge held thus:

If a controversy arises on any of the aspects, referred to by me, above, the authority functioning under the Act has also jurisdiction to decide the

same, because a decision over that controversy alone will determine the jurisdiction of the authority functioning under the Act to proceed further to

determine any other matter under the Act, The fact that the controversy over the above aspects were not raised, put in issue and decided by the

authority under the Act is of no legal consequence to whittle down the binding nature of the ultimate order. In such a case also the ultimate decision

with regard to cognizance of tenancy rights by the authority under the Act will govern.

When the authority constituted under the Act has decided the ultimate question under the Act within his jurisdiction and competency and which he

is enjoined to decide in the proceedings under the Act, it is not open to the civil court in a subsequent suit to sit in judgment over the same, as if it is

an appellate authority and render a different decision. As we stated above, we are not called upon to test a plea properly put forth in the list that

the order passed by the authority stands vitiated on any ground like fraud, collusion etc., we do not find any plea and furthermore there is no proof.

In the said circumstances, the order Ex.B.1, passed by the authority under the Act will have to govern until and unless it is set aside by any process

known to law, including the process, if any, available under the Act and that will provide an answer for the first defendant to the action for

possession prosecuted by the second plaintiff. Sustaining this ground put forth by the learned counsel for the first defendant, the appellant herein,

we are obliged to interfere in appeal.

The collusive orders or decrees like in the present case, a claim put forward being fictitious and the contest over it being unreal as the object of

the said according is to confound the third parties and such an order obtained by abuse of process of court by playing fraud on the court had now

become the foundation of the second defendant''s claim to the right of tenancy over the suit property.

In Ramachandra Ganpat Shinde and another Vs. State of Maharashtra and others, , the Apex Court had occasion to consider how a claim is

fictitious or collusive and in that respect it has been held thus:

In Nagubai Ammal v. B. Shama Rao this court held that collusion in judicial proceedings is a secret arrangement between two persons that the

one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. In such a proceeding, the

claim put forward is fictitious, the contest over it is unreal and the decree passed therein is a mere mask having the similitude of a judicial

determination and worn by the parties with the object of confounding third parties. This was reiterated in Rup Chand Gupa v. Raghuvanshi pvt.

Ltd., in which this Court held that the collusion is an improper act done by an improper refraining from doing an act, for a dishonest purpose. In

these two cases this Court set aside the collusive decree obtained by the parties. Collusion, thus, is the foundation to put forward a format of

judicial process and a pretext of contest which in effect is unreal and a face and the decree or order obtained on its basis is a mere mask having

similitude of judicial determination with the object of confounding third parties. The offending order is vitiated by collusion and formed foundation

for election to the committee of the society.

In Asharfi Lal Vs. Smt. Koili (dead) by L.Rs., the Apex court held thus:

The same principle would apply to a judgment of a court in an earlier suit or proceeding. The judgment of a competent court is normally binding

on the parties to the proceeding and it operates as res judicata in a subsequent proceeding between the same parties. An exception to the said rule

is engrafted by Section 44 of the Evidence Act which provides that any party to a suit or other proceeding may show that any judgment, order or

decree which is relevant under Sections 40, 41 and 42 and which has been proved by the adverse party was delivered by a court not competent

to deliver it. or was obtained by fraud or collusion. The effect of the said provision is that a judgment delivered by a court not competent to deliver

it or a judgment which is obtained by fraud or collusion does not operate as res judicata and it is not binding on the parties to the said proceedings.

(See: Beli Ram v. Choudri Mohammed Afzal) A judgment can be avoided in a subsequent proceeding by a party which is able to show that it was

delivered by a court not competent to deliver it or it was obtained by fraud or collusion. Since such a judgment does not operate as res judicata it

is not necessary to institute a proceeding for setting it aside. A party to a proceeding against whom a judgment in an earlier suit is relied can

successfully avoid the said judgment if he can establish in the subsequent proceeding that the said judgment was delivered by a court not competent

to deliver it or that it was obtained by fraud or collusion.

As held by the Supreme Court it is not necessary to seek for a declaration that the earlier proceeding is collusive or fraudulent and on that

score it is not necessary to seek for setting aside the proceeding recording the second defendant as tenant. It is not necessary for the plaintiff to go

before the authorities constituted under the Tamil Nadu Record of Tenancy Rights Act and seek for deletion of the entry.

The difference between fraudulent and collusive transaction has been set out by the Apex Court in Nagubai Ammal and Others Vs. B. Shama

Rao and Others, as hereunder:

Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. ""Collusion in judicial proceedings is a

secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for

some sinister purpose."" (Wharton''s Law Lexicon, 14th Edn., P. 212).

In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the

similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be

fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the court in his favour

and against his opponent by practicing fraud on the court. Such a proceeding is started with a view to injure the opponent, and there can be no

question of its having been initiated as the result of an understanding between the parties. While in collusive proceedings the combat is a mere

sham, in a fraudulent suit it is real and earnest"".

In Gowrishankar and Another Vs. Joshi Amba Shankar Family Trust and Others, the Apex Court held that orders obtained by practicing fraud

upon the Court is a nullity and non est in the eyes of law. In this respect, the Apex Court relied upon its earlier pronouncement in S.P.

Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, wherein it has been held thus:

Fraud avoids all judicial acts, ecclesiastical or temporal"" observed Chief Justice Edward Coke of England about three centuries ago. It is the

settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est. in the eyes of law. Such a

judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior of inferior. It can be

challenged in any court even in collateral proceedings.....

The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an

act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by

another''s loss. It is a cheating intended to get an advantage.....

A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a

vital document in order to gain advantage on the other side then he would be guilty of laying fraud on the court as well as on the opposite part.

As already pointed out recording that the second defendant is a tenant during the pendency of the proceeding is ex facie a collusive proceeding

and the plaintiff not being a party to the said proceeding, is not bound by it. Further the defendants 1 and 2 have played a fraud on the Record

Officer when they represented that the first defendant is the owner and the second defendant is the tenant and they have conveniently suppressed

the material fact namely that the plaintiff''s vendor is the owner and the first defendant is only a mortgagee in possession. It is axiomatic that the

second defendant not being a bona fide tenant cannot claim any right based on his being recorded as a tenant for the above reasons and in the light

of the above pronouncements. Both the defendants were very much aware that the first defendant is not owner at all and he is only a mortgagee.

It may be that the first defendant could lease out validly and bonafidely, as a mortgagee, which is not the case here. If there is a bona fide

letting then the second defendant could be recorded as a tenant, provided the defendants have disclosed that the first defendant is only a

mortgagee in possession and in that capacity he has leased out the land to the second defendant. In this case factually the first defendant was earlier

cultivating and it is not as if she own other extensive lands for cultivation. The entire proceedings before the Record of Tenancy Tahsildar

proceeded as if the first defendant is the owner and in his capacity as owner he has leased out the property to the second defendant. As such no

right could be claimed by the second defendant as a cultivating tenant based upon the proceedings of the Record of Tenancy Rights Tahsildar.

Recently Sampath, J., had occasion to consider an identical situation in Sowrirajan Vs. Sundaram and others, After referring to the judgment of

Ratnam. J., Avudaithangammal v. Subramania Thevar, 1994(1) L.W. 82 and others held that the proceedings under Act 10 of 1969 were not

conclusive in case where the entries were made suppressing the real facts without notice to persons interested and such a recording did not confer

any right as a cultivating tenant. I am in respectful agreement with the view taken by Sampath, J., It has been held thus:

It should also be noticed that Avudaithangammal v. Subramani Thevar and others 1994 (1) L.W. 82 referred to supra also held lhat proceedings

under Act 10 of 1969 were not conclusive in cases where entries were made by suppressing the real facts without notice to persons interested.

Provisions of the Act were not declaratory of rights as cultivating tenants, but pertain only to preparation of records. It was held that entries in the

Record of Tenancy Rights Register did not confer rights as cultivating tenant on the first respondent...""..

In Arumugam and Another Vs. Sri. Dharmapuram Mutt, Raju, J., following the Full Bench held that the jurisdiction of the Civil Court was not

totally ousted to entertain and decide issues as to whether land was under tenancy agreement.

In Avudaithangammal v. Subramania Thevar etc., and others, 1994 (1) L.W. 82 Ratnam, J. as he then was, had considered the effect of

entries made in Tamil Nadu Act 10 of 1969 and while following the decision of the Apex Court reported in Vishwa Vijay Bharati Vs. Fakhrul

Hassan and Others, held that the itself may be attacked as made fraudulently or surreptitiously and fraud and forgery rob a document fall its legal of

effect and cannot found a claim to possessory title. The learned Judge held thus:

Such entries secured by concealing the real state of affairs and without an opportunity to the persons interested to show cause against the making

of entries, cannot at all be considered as conclusive, even for the purpose of Tamil Nadu Act 10 of 1969. In Vishwa Vijay Bharati Vs. Fakhrul

Hassan and Others, the Supreme Court pointed out that while it is irue that entries in the Revenue Record ought generally, to be accepted at their

face value and the Courts should not embark upon an appellate enquiry into their correctness, the presumption of correctness can apply only to

genuine and not fraudulent entries. It was also pointed out that the distinction is fine, but real, in that, one cannot challenge the correctness of what

the entry in the revenue records states, but the entry itself may be attacked as made fraudulently or surreptitiously and fraud and forgery rob a

document fall its legal of effect and cannot found a claim to possessory title. From the manner in which Exs. A.2 to A.5., A. 10 and A.11 have

been brought about, it is obvious that the 9th respondent and his sons have fraudulently secured these entries without disclosing the real state of

affairs and therefore, no reliance can be placed upon the entries. It would also be useful in this connection to refer to the decision in

Balasubramanian v. Shamsu Thalreez, 98 L.W. 536 D.B. where the conclusive nature of the entries was put forth as debarring the Court from

embarking upon an investigation. While generally stating that the civil court cannot undertake such an enquiry, it was pointed out that there are

exceptions to the rule, such as where the orders have been obtained by fraud, collusion, etc.. This decision was rendered with reference to the

entries made under Tamil Nadu Act 10 of 1969. This decision would also enable the Court to ignore the entries under Exs.A.2 to A.5, A.10 and

A.11 as having been fraudulently secured by the 9th respondent in favour of his sons, the 1st. respondents in these Second Appeals, when even

according to the lower appellate Court, there was no lease at all, it is impossible to understand as to how even without a lease in favour of the 1st

respondent/s in these Second Appeals, they came to be recorded as cultivating tenants. On a careful consideration of the circumstances under

which Exs. A.2 to A.5, A. 10 and A. 11 have come into existence, it is obvious that these entries have been procured by suppression of facts and

by the exercise of fraud. Thus, the entries cannot be pressed into service by the 1st respondent/s in these Second Appeals to claim or project

rights against the appellant in respect of the suit properties.

As already pointed out the entries made by the Record of Tenancy Tahsildar behind the back of the real owner and persons interested, the

entries had been secured by collusion and deceitful means as well as by playing fraud on the statutory forum, renders it a nullity and non est. The

view this Court taking is on the facts of the case is supported, by the above cited authorities and the contention of the counsel for the respondents

that the entries are final and that the authorities under Tamil Nadu Act. 10 of 1969 alone could modify the entries and therefore it is for the

appellant to take appropriate proceedings can neither be appreciated nor could be sustained.

The collusion, the fraud and violation of principles of natural justice stares at the respondents. The entries made by the Record of Tenancy

Tahsildar is non est in law and it will not confer any right on the respondents. As already pointed out it has been held that the respondents had not

established the tenancy or possession at any point of time and only after the exchange of notice and pending the proceeding the respondents have

joined together with collusion to defeat the appellant''s claim by playing fraud on the authorities.

The two courts below have failed to consider the above aspect of the matter and have committed serious illegality. This being an illegality it

follows automatically that the appellant is entitled to a decree as prayed for by the appellant.

The question of law is answered in favour of the appellant and against the respondents. The second Appeal is allowed. The judgment and

decree of the two courts below are modified and the suit O.S .No.34 of 1981 on the file of the District Munsif Court, Cuddalore do stand decreed

as prayed for with costs throughout.