K.M. Balasundaram and Another vs Narayanasamy (died) and Another

K. Sampath, J.—The second appeal arises out of O.S.No. 323 of 1987 filed by one Narayanasamy the first respondent herein, before the

District Munsif, Villupuram, for permanent injunction against the appellants herein. The first respondent having died pending the second appeal, his

wife has been brought on record as the second respondent herein.

The plaintiff''s case was as follows:

The suit properties in five different survey numbers of a total extent of 2.97 acres were being cultivated by him by his own physical labour. His

father was cultivating the properties along with him till the father died in the year 1978. The annual lease was 20 bags of paddy for the first crop

and 10 bags of paddy for the second crop in a year if the lands were cultivated for the second crop also. His grandfather was also cultivating the

suit properties as a cultivating tenant from the then owners of the suit properties. For more than 50 years the suit properties were being cultivated

by the plaintiff''s family. While the plaintiff''s father was alive, he was paying the lease to the landlord Ranga Iyer, son of Venkatasubramania Iyer.

After the death of his father, the plaintiff was managing the family and he along with the other members of the family, had been in continuous

possession and enjoyment as cultivating tenant regularly paying the lease to the owner without any default. At the time of filing the suit, the lease for

the first crop for the current year had been paid to Ranga Iyer. The lease paddy was being collected either by Ranga Iyer or by his father

Venkatasubramania Iyer. Except the suit properties, the plaintiff was not cultivating any other property of Ranga Iyer or Venkatasubramania Iyer.

The plaintiff and his predecessors had spent more than Rs. 25,000 for reclamation of the suit properties. While so, the first defendant/first

respondent had been proclaiming in the village that he had purchased the suit properties from Ranga Iyer, that since he was employed in Madras,

his sister, the second defendant/second appellant herein was acting as his agent. The second defendant had the backing of rowdy elements in the

village. The first respondent with his money power and influence was trying to take forcible possession of the suit properties from the plaintiff. On

1.4.1987 acting on the instructions from the first respondent, the second respondent along with rowdy elements in the village, tried to trespass

upon the suit properties. It was under those circumstances, the present suit came to be filed. The plaintiff could not be evicted except by due

process of law.

The first respondent filed a written statement disputing the claim of the plaintiff as cultivating tenant. The plaintiff was never the lessee under the

real owner Ranga Iyer. There is no relationship of landlord and tenant between the plaintiff and Ranga Iyer. Ranga Iyer sold the properties to the

first defendant for valid consideration. The second defendant was the first defendant''s elder sister and as the first defendant was a permanent

resident of Madras, his properties were being managed by the second defendant. It was false to say that she was having the backing of rowdy

elements. Only the plaintiff had the backing of rowdy elements. The first defendant was not interested in taking forcible possession as there was no

necessity for the same and the theory of trespass alleged was equally false. The plaintiff had taken advantage of the absence of the first defendant

from the village and the second defendant being a lady, had filed the suit so as to harass the defendants. The plaintiff had in his credit a number of

criminal convictions. The defendants were Harijans and the plaintiff had got an edge over them since he had a large backing to give trouble as he

liked. The status of the plaintiff as a cultivating tenant was denied and unless and until he proved the same, he was not entitled to any benefit.

Merely filing any petition subsequent to the filing of the suit would not give him any benefit when the status of the initial stage itself had been

questioned. The suit had been filed to drag on the proceedings. The question of evicting the plaintiff under due process of law did not arise since he

was not a tenant. There was no cause of action for the suit.

On the above pleadings, the learned District Munsif, Villupuram, framed the following issues:

(1) Whether the plaintiff is entitled to the relief of permanent injunction?

(2) Whether the suit is maintainable? and

(3) To what other relief the plaintiff is entitled to?

On the side of the plaintiff Exs.A-1 to A-11 were marked. Besides examining himself as P.W.1, the plaintiff examined three witnesses as

P.Ws.2 to 4. On the side of the defendants, Exs.B-1 to B-4 were marked. The first defendant examined himself as D.W.1 and two other

witnesses as D.W.2 and D.W.3. The learned District Munsif, on the oral and documentary evidence found that the case of the plaintiff was that he

was cultivating paddy and paying 20 bags for the first bogam and 10 bags for the second bogam, if raised, to the owner Venkatasubramania Iyer,

but Exs.A-1 to A-8 produced on the side of the plaintiff showed that the plaintiff was cultivating sugarcane in the properties and inasmuch as no

valid explanation had been given by the plaintiff for not mentioning about his raising sugarcane in the suit properties, it could not be said that he was

a cultivating tenant of the suit properties and that in any event, he had not established that on the date of the suit, he was in possession of the

properties. The learned District Munsif further observed that, the oral evidence on either side could not be acted upon. The learned District Munsif

also found that in the documents produced by the plaintiff, only an extent of 2.40 acres was taken care of and there was no explanation as to why

the balance of 57 cents was left out. The learned District Munsif refused to rely on Exs.A-5 and A-8 respectively the notice issued by

Venkatasubramania Iyer to the plaintiff and the accounts furnished by Venkatasubramania Iyer and Ex.A-6 which is the order of South Indian

Sugar Factory, Mundiampakkam, given to the plaintiff for sugar cutting, as, according to the learned District Munsif on the dates Exs.A-5 and A-8

came into existence, there had been a partition between Venkatasubramania Iyer and his son Ranga Iyer and the suit properties had fallen to the

share of Ranga Iyer and Venkatasubramania Iyer had no authority to write or commit himself on behalf of his son Ranga Iyer. The learned District

Munsif held that the plaintiff had not explained as to why after the partition Venkatasubramania Iyer should either correspond or give accounts in

respect of the suit properties. The learned District Munsif discredited Ex.A-9 letter. The plaintiff''s stand that Ex.A-1 indemnity bond had been

signed by Ranga Iyer was also not accepted by the trial Court on the ground that Ranga Iyer had not been examined before the Court. The trial

Court chose to rely on the exhibits marked on the side of the defendants and dismissed the suit by judgment and decree dated 18.4.1988. The

plaintiff filed appeal A.S.No. 54 of 1988 before the Subordinate Judge, Villupuram. The learned Subordinate Judge accepted the oral and

documentary evidence on the side of the plaintiff and found that he had established that he was a cultivating tenant in respect of the suit properties,

that the adangals produced clearly showed him and his father as cultivating tenants, that the plaintiff was the cultivating tenant would be evident

from the letter written by Ranga Iyer''s father Venkatasubramania Iyer, that the plaintiff had supplied sugarcane to Mundiampakkam Sugar Factory

from the suit lands, that he had also raised loans on the security of the sugarcane in the suit properties and that the first defendant had not

established that he was put in possession of the properties pursuant to the sale in his favour. So holding the learned Subordinate Judge by judgment

and decree dated 17.11.1988 reversed the decision of the trial court, accepted the case of the plaintiff and decreed the suit as prayed for. It is as

against this the second appeal has been filed.

At the time of admission the following substantial questions of law were raised for decision in the second appeal:

(1) Whether the suit of the respondent/plaintiff cannot be maintained in view of Section 6-A of the Tamil Nadu Cultivating Tenants Protection Act

14 of 1955 and amended upto date? and

(2) Whether the suit of the respondent/plaintiff is without jurisdiction in view of Section 16-A of the Record of Tenancy Rights Act?

Mr. T.V. Ramanujam, learned senior counsel for Mr. C. Umashankar, learned Counsel for the appellants, submitted that the lower Appellate

Court had not found that the plaintiff was in possession on the date of the suit, that there was no proof that he paid lease for the suit year, that the

suit was bad for non-joinder of Ranga Iyer as a party, that Ex.A-11 relied on by the plaintiff was not in his name, that P.W.3 had not given

particulars regarding enjoyment and that P.W.4 had stated that the property was lying fallow. The learned Senior Counsel further submitted that

the various exhibits relied on by the lower Appellate Court had not been proved and the lower Appellate Court was in error in relying on those

documents.

Per contra, Mr. Sundar, learned Counsel for the second respondent, submitted that the suit was filed on 2.4.1987, that upto 1982 there were

documents that there were prevaricating averments made on behalf of the appellants, that in the civil miscellaneous petition filed in the second

appeal a specific allegation had been made that the plaintiff was never in possession at any point of time, that the first defendant as D.W.1 admitted

that the plaintiff was in possession even in the chief examination and that the defendants had kept back the original sale deed which would show

that the plaintiff was a cultivating tenant. The learned Counsel further submitted that in the proceedings before the Record Officer it had been found

that the plaintiff was a cultivating tenant and that in those circumstances, no exception could be taken to the finding reached by the lower Appellate

Court.

The writ petition W.P.No. 4686 of 1999 has been filed by the first defendant for a certiorari to call for the records pertaining to the passing of

the order dated 25.9.1997 in Na.Ka.B-3/45154/95 by the District Revenue Officer, Villupuram, the second respondent in the writ petition and

under the following circumstances:

The properties of a total extent of 2.97 acres were purchased by the petitioner under a registered sale deed on 31.12.1986. On the date of its

purchase its vendor Ranga Iyer was cultivating the lands on his own. After the purchase of the lands, the patta had been transferred in his name. He

had adangal and chitta in his name. He never left the land to anyone for tenancy. One Narayanasamy, the husband of Umayal, the third respondent

in the writ petition/the second respondent in the second appeal, filed the suit O.S.No. 323 of 1987 for injunction. Having failed, he failed appeal

which was allowed against which the second appeal has been filed. At the time of filing the suit, Narayanasamy filed an application for injunction in

I.A.No. 671 of 1987 and there was temporary injunction granted till 31.12.1987 and the same was not extended thereafter. On the date of filing

of the suit, i.e., on 2.4.1987 Narayanasamy was not in possession of the land. In the first appeal filed by Narayanasamy, there was no interim

order granted. In C.M.P.No. 2743 of 1989 filed along with the second appeal, status quo was ordered on 7.4.1989 and the same was made

absolute on 7.7.1989 and this would show that the writ petitioner was in possession of the land in question. After the filing of the suit,

Narayanasamy filed petition u/s 4(2) of the Tamil Nadu Record of Agricultural Land Act, 1969 (hereinafter referred to as the Act) before the

Record Officer and Revenue Tahsildar, Villupuram, in T.R.No. 3 of 1987. By order dated 30.11.1992 the Tahsildar dismissed the petition.

Narayanaswamy filed appeal in T.R.A.P.No. 9 of 1993 before the Sub Collector, Revenue Court, Cuddalore, which was allowed on 19.4.1995.

Revision against that order was filed before the District Revenue Officer. Villupuram, who dismissed the same by order dated 25.9.1997 against

which the petitioner filed appeal before Commissioner, Land Reforms. By proceedings dated 18.2.1998, the Commissioner, Land Reforms, had

directed the District Revenue Officer to issue a modified order stating that no appeal would lie on his order and an appeal would lie only to the

High Court under Article 227 of the Constitution. The modified order took a long time to be passed by the District Revenue Officer. In the

meantime, Narayanasamy died and his legal representatives were brought on record in S.A.No. 350 of 1989. The third respondent in the writ

petition served a civil miscellaneous petition on the petitioner stating that the order of the Revenue Divisional Officer and the District Revenue

Officer, Villupuram, directing the Tahsildar to record her name in the record as cultivating tenant and it had to be marked in the second appeal as

additional document. Immediately, he rushed to the office of the District Revenue Officer. Villupuram, but there was no response. He then caused

a letter to be issued in March to the District Revenue Officer to issue a modified order as directed by the Commissioner, Land Reforms. There

was a modified order passed on 8.3.1999 and the present writ petition came to be filed.

On merits it is stated in the writ affidavit that the authorities, viz., District Revenue Officer and the Sub Collector, Revenue Court, Cuddalore,

had placed reliance on adangal Ex.A-6 in the name of one Chinnian pertaining to the years 1969, 1970 and 1971, that Narayanasamy did not file

any document to show that after 1969 he was cultivating the lands as cultivating tenant, that inasmuch as he had not produced any document to

show that he was cultivating the lands and that he filed the petition before the Record Officer, it ought not to have held that he was cultivating tenant

and his name ought not to have been recorded in the records as cultivating tenant. Again, after the Civil Court was seized of the matter relating to

the question of possession as well as the question of the said Narayanasamy being a cultivating tenant, the petitioner in the writ petition requested

the authorities to await the verdict of the High Court, but the request was not considered and in fact, the authorities gave finding and interpreted the

order of status quo in favour of Narayanasamy without properly appreciating the basic principles of law. As the order of the District Revenue

Officer was being misused by the third respondent, the present writ petition has been filed.

It is the further case in the writ petition that the matter was subjudice before the Civil Court and the authorities under the Act ought to await for

the decision of the Civil Court in view of the Full Bench decision reported in Periathambi Goundan Vs. The District Revenue Officer, Coimbatore

and Others,

Counters have been filed in the writ petition both by the Government as well as the contesting third respondent supporting the conclusion

reached by the Record Authorities.

It is not necessary to go into details as of now.

Having regard to the elaborate arguments submitted by the learned senior counsel, it has become necessary to refer to the pleadings and

various documents produced in the suit. If necessary the documents produced in the record proceedings will also be referred to.

The specific case of Narayanasamy as plaintiff in the suit is that he was a cultivating tenant in respect of the suit properties along with his father,

that before them his grandfather was a cultivating tenant, that after the death of his father in the year 1978, he was cultivating the land, that the lease

was oral, that as per the terms of the lease the tenants had to give 20 bags of paddy for the first bogam and 10 bags of paddy for the second

bogam. No doubt, it is not mentioned in the plaint that he was raising sugarcane in the suit properties at the time the suit was instituted. The mere

fact that the plaintiff did not mention as to the crops actually raised in the properties or his case in the plaint that the lease arrangement was that the

tenant should give 20 bags and 10 bags for the first and the second bogams would not by itself discredit the case of the plaintiff. That the plaintiff

was raising sugarcane on the approval of the owners would be evident from the various documents filed by the plaintiff in the case. Ex.A-1 is the

letter of guarantee dated 8.6.1981 given by one Arjunan, Kuppusamy and Ranga, Ranga admittedly was the previous owner of the suit properties.

The borrower is shown as the plaintiff Narayanasamy. Under Ex.A-1 the guarantors guaranteed the due performance and observance by the

borrower Narayanasamy of all the terms and conditions relating to the advance of Rs. 5,000 received from United Commercial Bank,

Mundiampakkam. This document is sought to be disputed by the defendants on the ground that it had not been proved and that there was no

reference to any survey numbers in this document. The document had been sent for from U.C.O. Bank, Mundiampakkam, by P.W.1. It was

admitted by consent on 22.7.1987. The objection relating to non-admissibility of Ex.A-1 had not been seriously challenged before the trial Court.

It would appear that the signature of Ranga Iyer found in Ex.A-1 had alone been disputed. The trial Court found fault with the plaintiff for not

examining Ranga Iyer. Ranga Iyer is the first defendant''s vendor. It may incidentally be pointed out that the original sale deed was not produced by

the first defendant which, if it had been produced, besides showing whether there was any recital that Narayanasamy was a cultivating tenant in

respect of the lands in question, would have the signature of the vendor Ranga Iyer. It would have been possible for the Courts below to satisfy

themselves as to the genuineness of the signature of Ranga Iyer in Ex.A-1. It has been held in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and

Others, , that, ""a person in possession of a document if keeps back the document, adverse inference will have to be drawn notwithstanding the fact

that the burden of proof or the onus of proof was not on him."" Inasmuch as the original of Ex.A-9 (copy of sale deed filed by the plaintiff) had not

been produced and inasmuch as Ex.A-1 had been received by him, in my view, it is not open to the first defendant to contend that Ranga Iyer did

not give guarantee. The document had come from proper custody, viz., from UCO Bank. The document had been properly admitted and

necessary inference had been drawn.

The next point on this aspect is as to the contention that this document does not mention the survey numbers. It is not the case of the first

defendant that Ex.A-1 related to some other properties. The specific case in the plaint was that the plaintiff was a cultivating tenant in respect of

certain properties belonging to Ranga Iyer. Unless it is shown by the first defendant that Ex.A-1 related to some other properties, the contention on

behalf of the first defendant cannot be accepted.

The next point relates to Ex.A-2. This is a letter addressed to the UCO Bank, Munidampakkam by the plaintiff on 8.6.1981. In this letter, the

plaintiff has stated as follows:

On the basis of the assurance given by him, the plaintiff wants to be given loan. The survey numbers given are 300/2-A, 303-A1, 2, 3 and 301/2.

The learned senior Counsel took exception to the portion in para (1) already referred to on the word finds a place in Ex.A-2. It is a printed form

furnished by the bank to be executed by the applicants for loan. Applicants for loan may own properties or may be lessees of properties. The

word has not been scored out. That would not mean that the plaintiff claimed ownership to the properties. Suffice it to say that the survey numbers

of the suit properties are given in the said letter for loan. This letter had been sent for from UCO Bank and marked by consent through P.W.1. The

discharge promissory note is also there in the bunch marked as Exs.A-1 and A-2. Ex.A-3 is a short term loan application form duly filled up by the

plaintiff. The suit survey numbers are set out in Ex.A-3. It has been sent for from UCO Bank and marked through P.W.1. In Exs.A-1, A-2 and A-

3 the guarantors'' names are given and the third guarantor is P.V. Rangan son of Venkatasubramania Iyer residing at No. 29, West Hanumar Koil

Street, Villupuram. It is specifically stated that the security is the sugarcane grown in the properties. No doubt, the extent where sugarcane raised is

2.40 acres. This had provoked the learned Senior Counsel to say that there were discrepancies. Apparently, an extent of 57 cents had been left

out. Perhaps no sugarcane was raised in that extent. There is really no discrepancy.

The learned senior counsel also points out that there are blanks in the application for loan Ex.A-3. It is a printed form and some of the queries

have not been answered. However, the material portions such as the name of the applicant, his father''s name, his address and the lands taken on

lease which are relevant are filled up. As early as 1981 the plaintiff had applied to the bank for loan on the security of the sugarcane raised in the

properties. As already noticed, these documents were summoned from the bank and marked by consent. Ex.A-4 is the letter of guarantee to

which reference had already been made. Two persons other than the owner of the properties have signed the document. The fact that the owner of

the properties had not been examined does not in anyway belittle the case of the plaintiff. The owner has sold his properties and it was too much to

expect the owner to come and depose in favour of the plaintiff.

The next document is Ex.A-5 which is a notice dated 9.8.1984 from Venkatasubramania Iyer, father of Ranga Iyer. According to the learned

Senior Counsel, there is no reference to raising of sugarcane in the property in the notice and that the letter had been written by a person, who had

nothing to do with the properties, the properties having been partitioned between him and his son Ranga Iyer and fallen to the share of Ranga Iyer.

The letter is addressed to the plaintiff and his brother Subramanian, sons of late Chinnian. There is reference to non-paying of the lease of 30 bags

to the owner. Apart from that, Venkatasubramania Iyer on his responsibility had got manure/fertilizer for Rs. 605 from K.S. Sivaraman Fertilizer

Shop and in respect of that the plaintiff and his brother had paid only Rs. 250 and the balance of Rs. 355 had been paid by Venkatasubramania

Iyer to Sivaraman and this was due to him. The notice further states that in case the plaintiff and his brother did not make arrangements for

payment of the amount due, it would be necessary to take further proceedings.

Mr. T.V. Ramanujam, learned senior counsel for the appellants/petitioner, submitted that there had been a partition in the family and inasmuch

as the suit properties had been allotted to the share of Rangan, this letter from Venkatasubramania Iyer could not have any probative value. I do

not agree with the said admission. Venkatasubramaniam was the father of Rangan and he had written on behalf of Rangan in which he specifically

mentioned about the arrears of lease. Having regard to the relationship between Venkatasubramaniam and Rangan, the notice can be used as

supporting the case of the plaintiff with regard to the lease set up by him. The next document is Ex.A.6 which is the cutting order from South India

Sugars Ltd., Mundiampakkam. The name of the farmer is given as Narayanasamy, the plaintiff herein. The extent, in respect of which cutting order

was issued, is 2.40 acres. The order requires the farmer''s consent to supply 65 tonnes of sugarcane between 14.5.1982 and 19.5 1982 and

thereafter without express permission, no further supply could be made. The only objection, with regard to Ex.A.6, by the learned Senior Counsel,

is that it does not give the survey number. It has already been noticed that under Ex.A.3 the total extent given is 2.40 acres and one of the

persons/Rangan, who has signed as a guarantor in respect of 2.40 acres is the owner of the properties. Thus, there can be no mistake that the

cutting order related only to the suit properties though an extent of 57 cents is excluded. We find from Ex.A-6 that there was an extension of

period for the supply of sugarcane. Ex.A-7 is also the cutting order for the year 1982-83. Ex.A-8 is the pass book and in Ex.A-8 there are notings

made with regard to the lease amount. Ex.A-9 is a copy of the sale deed by T.V. Rangan in favour of the first defendant. We have already noticed

that the original has been kept back by the first defendant. The case of the plaintiff is that the original of Ex.A-9 has been deliberately kept back by

the first defendant as in the original some recitals had been made with regard to the lease by the owners in favour of the plaintiff and had been

scored out subsequently. In Ex.A-9 there are endorsements made to the effect that certain writings in original of Ex.A-9 had been scored out. This

lends credence to the plaintiff''s stand that only because there were recitals made in the original of Ex.A-9 against the interest of the first defendant,

the original had been kept back. Ex.A-10 relates to some proceedings before the Magistrate, Thirukoilur. There appears to have been some

complaints given against the plaintiff and others before the Sub-Divisional Magistrate, Thirukkoilur about the breach of public tranquility and it is

not very relevant for the purpose on the case on hand. Ex.A-11 is the adangal for faslis 1378-1381. For fasli 1378, the name of

Venkatasubramaniam is shown as the pattadar and Chinnaian as the tenant. For fasli 1379, Ranga is shown as the owner and Chinnaian as the

tenant. For fasli 1379 initials of P.S.V. are written and scored out in four places and the name of Rangan finds a place. The names of Sappaian and

Chinnaian find a place as tenants. For fasli 1380 the name of Rangan finds a place and names of Sappaian and Chinnaian are found. For fasli

1381, Rangan''s name and Chinnaian''s name find a place. Thus, the materials on record clearly point to the plaintiff''s father and after him, the

plaintiff, being in occupation of the properties, as tenant. Ex.B-1 is the Chitta copy for faslis 1387-1395. Though the index gives the date of

issuance of Ex.B-1 as 20.11.1982, it cannot be correct for the simple reason that fasli 1395 corresponds to English year 1984-85 and a perusal of

the original clearly shows that Ex.B-1 is dated 20.4.1987 and not 20.11.1982 as given in the index to the trial Court judgment. Interestingly for

faslis 1390, 1392, 1393 and 1395 Ex.B-2 (Cultivation adangal) has been issued and it shows the name of Rangan. Though the index in the

judgment gives the date as 20.11.1982, for the reason already given, the date can be only 20.4.1987 and not 20.11.1982. it is also significant to

note that in the original of Ex.B-2, the portion showing the year is torn. I have, absolutely, no hesitation in holding that it had been issued only on

20.4.1987. These documents cannot, at all be relied on as they have come into existence after 2.4.1987, the date on which the suit was filed.

Apparently, some obliging revenue officials have given these two documents. Exs.B-4 and B-5 do not advance the case of the defendants. Having

regard to the state of evidence available, the lower Appellate Court has rightly come to the conclusion that the plaintiff''s case was true and he was

entitled to injunction.

Mr. T.V. Ramanujam, learned senior counsel for the appellants, contended that there is no finding by the appellate Court that the plaintiff was

in possession on the date of the suit. It must at once be pointed out that the first defendant has not proved that pursuant to the sale in his favour

possession of the properties was given to him.

In Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, , it has been held by the Supreme Court-

If a thing or a state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may

sometimes, be drawn. The presumption of future continuance is noticed in Illustration (d) to Section 114. In appropriate cases, an inference of the

continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate

Illustration. The rule that the presumption of continuance may operate retrospectively has been recognised both in England and India. This is rule of

evidence by which one can presume the continuity of things backwards. The presumption of continuity weakens with the passage of time. How far

the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances.

In the instant case, the plaintiff has shown his possession in the year 1984-85 and when his possession was sought to be disturbed on the basis

of a sale deed, in favour of the first defendant, he came to the court seeking injunction. No doubt, the civil court cannot declare that a particular

person is a cultivating tenant, but as has been held in Periyathambi Goundan v. The District Revenue Officer, Coimbatore (1980) 2 M.L.J. 89 :

AIR 1980 Mad. 180 by the Full Bench, it is open to the Civil Court while granting injunction to incidentally go into the question whether the person

is a cultivating tenant. The Civil Court has ample jurisdiction to grant. injunction on the basis that a person is a cultivating tenant and by doing that, a

Civil Court is not usurping the powers of the authority constituted under the Record of Tenancy Rights Act (Act 10 of 1969). The plaintiff''s

possession on the date of suit has to be inferred. The ultimate decision by the lower Appellate Court granting injunction in favour of the plaintiff

cannot be taken exception to.

Let us now go into the details of the writ petition. The writ petition has arisen under the following circumstances. The writ petition has been filed

to call for the records pertaining to the passing of the order by the District Revenue Officer, Villupuram. dt. 25.9.1997 in Na.Ka. B-3/45154/95

and quash the same. On 30.11.1992, the Tahsildar, Villupuram, passed an order in T.R.No. 3/87 filed by the plaintiff holding that from fasli 1382

he had not filed any document to show that he was cultivating the lands and therefore he was not entitled to have his name registered as the tenant

under Act 1,0 of 1969. However, on appeal in T.R.A.P.No. 9/93, the Revenue Divisional Officer on 19.4.1995 passed an order setting aside the

order of the Record Tahsildar and remitting the matter for fresh consideration. By the time, the appeal was heard by the Appellate Authority, the

plaintiff had been murdered and his wife, the second respondent herein, had pursued the matter. The Revenue Divisional Officer while setting aside

the order of the Tahsildar, observed that it has been established that the plaintiff Narayanasamy and his father Chinnaian had been cultivating the

properties as tenants for generations, that this was evident from the documents filed and from the finding of the Subordinate Judge in the appeal.

Against the order of the Revenue Divisional Officer, the first defendant filed revision in Na.Ka.B-3/45154/95 before the District Revenue Officer,

Villupuram, who by his order dt. 25.9.1997 confirmed the decision of the Appellate Authority and dismissed the revision. As against that, the first

defendant filed a further revision to the Principal Commissioner and Commissioner of Land Reforms, Chennai. The papers were returned with an

endorsement that the Commissioner had no jurisdiction to entertain the case. Thereafter, the first defendant applied to the District Revenue Officer

for modification of his order to the effect that a revision will lie to the Government and thereafter a revised order was given on 8.3.1999 saying that

the order passed by him was final and if the person was aggrieved, he could file a writ petition under Article 226 of the Constitution in the High

Court.

In the writ petition it is contended that the Tahsildar had found that after fasli 13 82 no document had been produced to the effect that the

plaintiff Narayanasamy had been cultivating the lands and that the revisional authority had omitted to note that the Appellate Authority, namely, the

Revenue Divisional Officer had not acted as per the provisions of the Act and had erroneously passed his decision on surmises and conjectures.

According to the writ petitioner, the plaintiff had not discharged the burden of proof that he was a cultivating tenant in respect of the properties.

A detailed counter has been filed and it is alleged that the plaintiff had filed certain documents in his favour showing that the lands were in his

possession, that the entries in column 6-A of the adangal extracts stood in the name of the plaintiff''s father and possession of the lands was with

the plaintiff''s father all along. When the adangals clearly show that the plaintiff''s father as the cultivating tenant, it would apply to the plaintiff also.

The first defendant had not produced any documentary evidence to show that the lands, at the time of application filed by Narayanasamy for

recording him as a cultivating tenant, were in his actual possession and enjoyment. The District Revenue Officer had given ample opportunity to

both the parties to be heard and then only passed orders and admittedly the first defendant is a practising Doctor at Chennai and he could only be

an absentee landlord. Unless he showed his possession, the decision of the District Revenue Officer confirming the finding of the Revenue

Divisional Officer cannot be taken exception to.

The Appellate Authority, namely, the Revenue Divisional Officer, finds on the materials that the deceased plaintiff was cultivating the lands, that

the first defendant as absentee landlord could not have done direct cultivation, that there were materials to show that the deceased/plaintiff and his

father were cultivating the lands for generations. After holding so, the Revenue Divisional Officer remitted the matter to the Tahsildar for

consideration afresh and passing of a just order. This order has been confirmed by the revisional authority/the District Revenue Officer.

Having regard to the foregoing discussion and my finding that the decision of the lower appellate Court is unexceptionable, the substantial

questions of law raised in the second appeal have to be answered against the appellant and so far as the writ petition is concerned, the order of

remittal by the Revenue Divisional Officer as confirmed by the District Revenue Officer cannot also be taken exception to. Both the second appeal

and the writ petition fail and are dismissed. There will be no order as to costs. Consequently, the writ miscellaneous petition is closed.