M. Chinnathambi alias Muthiah vs Ponnathal (died), Prabavathy, Manoj Kumar and Ajay Pandi

G.M. Akbar Ali, J.—The first defendant is the appellant. The appeal is preferred against the judgment and decree, dated 21.02.2005 made

in A.S. No. 102 of 2001, on the file of the learned I Additional Sub Judge, Madurai, confirming the judgment and decree, dated 23.02.2001,

made in O.S. No. 350 of 1993, on the file of the learned District Munsif, Madurai Taluk, Madurai.

The brief facts of the case are as follows:

The suit properties belonged to the second defendant. The first plaintiff has been cultivating the suit properties, as a cultivating tenant. A lease deed

was executed by the first plaintiff and the second defendant and the first plaintiff was also registered as a cultivating tenant under the Tamil Nadu

Agricultural Record of Tenancy Right Act, (10 of 68). A tenancy patta was issued to the plaintiff and it was published in Gazette. The first plaintiff

was paying rent regularly to the second defendant and the first defendant has no right or title or enjoyment over the suit property and with an

ulterior motive, the first defendant is interfering with the peaceful possession and enjoyment of the suit property of the first plaintiff. Therefore, the

suit is filed for a relief of bare injunction only against the first defendant.

The suit was resisted by the first defendant. The first defendant would submit that he is a cultivating tenant under the second defendant and he

has been paying the rent to the brother of the second defendant. It is a collusive suit by the second defendant and the first plaintiff, in order to evict

the first defendant unlawfully, from the suit property.

Pending the suit, the first plaintiff died and the second plaintiff/wife was brought on record as Legal Representative of the first plaintiff and later

the second defendant had also died and no legal representatives were brought on record.

Based on the above averments and in spite of objection by the first defendant that the relief cannot be granted to the second plaintiff in view of

the definition of the cultivating tenant, the trial Court had found that the plaintiff is in possession of the suit property and has decreed the suit

preventing the first defendant from interfering with the peaceful possession and enjoyment of the suit property.

Aggrieved by the judgment and decree, the first defendant has preferred an appeal in A.S. No. 102/2001 before the learned Additional Sub

Judge, Madurai. Pending the appeal, the second plaintiff has also died and the legal representatives claiming through a Will, were brought on

record as respondents. The first appellate Court has also found that the plaintiffs/respondents were in possession and enjoyment of the property

and has dismissed the appeal. Against which, the present second appeal has been preferred by the first defendant on various grounds, and more

particularly, on the ground that the courts below have failed to appreciate the relief asked for in the suit is that the fist plaintiff is the cultivating

tenant under the second defendant, who died during the pendency of the suit and the suit was proceeded without impleading the legal

representatives of the deceased second defendant and also on the ground that the first plaintiff, who claims to be the cultivating tenant, also died

and his wife cannot claim tenancy right, as she was not physically contributing for the cultivation; and the first appellate Court had failed to

appreciate that originally the plaintiff died and the first respondent, who is not a direct legal heir, claiming injunction and tenancy right by virtue of a

Will of the deceased/second plaintiff and such relief are not available to them.

Mr. V. Sitharanjandas, the learned Counsel appearing for the appellant would submit that originally the suit was filed by one Muthukaruppan

Ambalam claiming that he was the cultivating tenant under the second defendant and during pendency of the suit he died and his wife was brought

on record as the second plaintiff and in spite of the fact that she is not coming under the definition of cultivating tenant, the trial court has granted the

relief of injunction in favour of the plaintiff. The learned Counsel pointed out before the first appellate Court she also died and the present

respondents were brought on record, who are not the direct legal heirs of the original plaintiff. The learned Counsel also pointed out they have

claimed injunction and tenancy right through a Will dated 16.03.1995 and they cannot claim the present right of the original plaintiff and in view

plaintiff''s tenancy right itself was in dispute.

Mr. M.V. Venkataseshan, the learned Counsel for the respondents pointed out that on the date of filing of the suit, the original plaintiff was in

possession and enjoyment of the suit property, as a cultivating tenant and a relief was sought against the present appellant as he was trying to

interfere with the possession. The learned Counsel also pointed out that there was no dispute between the land owners and the cultivating tenants

and after the death of the original plaintiff ,the second plaintiff and after her death, the settlee under the Will has the right to continue in possession

of the suit property and therefore, the courts below have rightly granted the relief of injunction in favour of them.

I have heard the submissions of the learned Counsel on either side and also perused the material available on records.

Admittedly, the suit property belonged to the second defendant, who died pending the suit and the original plaintiff one Muthukaruppan

Ambalam claimed to be in possession of the cultivating tenant under the second defendant. He had also produced lease agreement and also the

record of tenancy and the pata issued for tenancy right. The fact that he was the cultivating tenant was also admitted by the second defendant.

Pending the suit, the sole plaintiff died and the second plaintiff was brought on record as his wife/legal representative. The first defendant, who set

up possession as a cultivating tenant against the second defendant failed to prove that he was in possession and enjoyment of the property as

cultivating tenant and the trial Court had found that the second plaintiff continuous to be in possession of the property and has granted the decree

as prayed for. The first defendant has preferred an appeal and pending the appeal, the second plaintiff had also died. However, the respondents 1

to 3 were brought on record. They claimed rights through a Will dated 16.03.1995.

On admission, this Court has framed the only substantial questions of law is that

Whether the suit is maintainable in view of the Provisions Act 10 of 1969?

Tamil Nadu Cultivating Tenant Protection Act, 1969 ( Act 10 of 1969) defines who is a cultivating tenant and also bars the Civil Court''s

jurisdiction. The contention of the appellant seems to be that after the death of the original plaintiff and also on the death of the land owner, neither

the second plaintiff, who is the wife of the deceased, nor any person claiming tenancy rights through the second plaintiff can not maintain the suit

claiming that they are the cultivating tenant.

The civil Court cannot decide that who is the cultivating tenant. The Record Officer is the competent authority to decide the issue. But, the suit

was filed only for an injunction simpliciter by the original plaintiff, who claimed and proved his possession as a cultivating tenant for the suit

property.

The Full Bench of this Court had an occasion to dealt with a similar matter in Periathambi Goundan Vs. The District Revenue Officer,

Coimbatore and Others, wherein, it has been held as follows:

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.

I am of the considered view that when the original plaintiff filed the suit in the capacity as a cultivating tenant, he filed the same to protect his

possession against the appellant herein. Pending the suit he died and that does not mean that the original plaintiff has surrendered his possession

either to the land owner or to the rival claimant. The present appellant, who is the first defendant in the suit, ought to have proved before the trial

Court or before the first appellate court that the second plaintiff had lost her possession on the death of her husband. The trial Court has rightly

found that the original plaintiff was in possession on the date of filing of the suit and the subsequent legal heirs continue to be in possession and the

possession was lost at any point of time. Therefore, the second plaintiff found to be in continuous possession and the trial Court has granted the

relief of injunction restraining the appellant herein not to interfere with the possession and enjoyment. During the pendency of the first appeal, the

second plaintiff has also died. Again the question whether the legal representative continues to be in possession or lost her possession during the

pendency of the appeal was decided in favour of the plaintiff.

The question before the civil Court is not who is the cultivating tenant for the suit property. As stated earlier, it has to be decided only by the

Record Officer and not by the civil Court. The only question before the Court was, who was in possession of the property at the time of filing of

the suit, whether the present respondents, who claims to be the legal heirs of the original plaintiff continues to be in possession or they have been

lost their possession on the death of either the first plaintiff or the second plaintiff. From the document it is evident that the original plaintiff was in

possession and enjoyment as a cultivating tenant and after his death, his wife was in possession, and thereafter, the possession continues to be with

the present respondents 1 to 3 and in no point of time the appellant was in possession and enjoyment of the property. Therefore, the suit is

maintainable as far as injunction is concerned and the plaintiffs/respondents had proved that they are in possession of the property on the date of

filing of the suit and continues to be in possession and therefore, the courts below are right in granting the relief as prayed for and I have no reason

to interfere with the judgment of the first appellate Court. The question of law is decided accordingly.

In the result, the appeal is dismissed confirming the judgment and decree, dated 21.02.2005, made in A.S. No. 102 of 2001, on the file of the

learned I Additional Sub Judge, Madurai, confirming the judgment and decree, dated 23.02.2001, made in O.S. No. 350 of 1993, on the file of

the learned District Munsif, Madurai Taluk, Madurai. No costs.