Muthu alias Muthuperumal Servai vs Chinna Ponnu and Others

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred against the judgment in A.S. No. 67 of 2001 on the file of the Principal

Subordinate Judge, Madurai, which was preferred against the judgment in O.S. No. 586 of 1991 on the file of the District Munsif, Madurai Taluk.

The plaintiff in O.S. No. 586 of 1991 has filed the suit for redemption of mortgage and recovery of possession and for mesne profits.

According to the plaintiffs, the suit property was allotted to the share of the first plaintiff in the partition held between herself and her brothers

including the defendant, who is her step-brother. The first plaintiff was doing personal cultivation in the suit property. She approached the

defendant for a loan of Rs.10,000/- to meet the agricultural expenses. The first plaintiff executed a registered simple mortgage deed on 5.8.1987

for herself and on behalf of minor plaintiffs 2 to 5, for Rs.10,000/- in favour of the defendant. The agreed rate of interest is 12% p.a. The

redemption period is 3 years. After the transaction, she felt on the same day that it is difficult for her to pay interest every year and hence,

requested the defendant to take possession, cultivate the same and to appropriate the produce realized in lieu of the interest payable to the

mortgage amount. There was an agreement entered into between the first plaintiff and the defendant on 5.8.1987. The defendant is a permissive

occupier and he is entitled to be in possession till the expiry of the period of redemption, the 1st plaintiff offered Rs.10,000/- in cash and requested

the defendant to suffer redemption. The defendant with intent to enrich himself refused to receive the amount and sent a false notice. The 1st

plaintiff received the same and suitably replied on 12.8.1991. Now, the defendants 2 to 5 are majors. In the notice the defendant would mention

that he is in possession of the suit property even prior to 5.8.1987. The plaintiff has deposited Rs.10,000/- towards mortgage money. Hence, the

suit for redemption of mortgage dated 5.8.1987 and for recovery of possession.

In the written statement the defendant would contend that the plaintiff had secured the property in the family partition. The defendant became

tenant of the property under the 1st plaintiff since the date of partition. As per the lease agreement the 1st plaintiff agreed to receive 1/3rd of

produce as rent. Since the plaintiff happens to be the sister of the defendant, they have not insisted for any written agreement or any receipt. The

1st plaintiff has borrowed a sum of Rs.10,000/- from the defendant on 5.8.1987 and agreed to adjust the rent towards interest. Thereafter, the 1st

plaintiff had borrowed another sum of Rs.10,000/- from the defendant in the presence of two witnesses and requested the defendant to adjust the

rent towards interest. The defendant has made improvements at the cost of Rs.10,000/- by leveling the land and made fit for cultivation. The 1st

plaintiff subsequently has taken steps to dispose of the property. The defendant has sent a lawyer notice dated 20.5.1991. the defendant is not

doing any personal cultivation in the suit property. The plaintiffs cannot take advantage of the mortgage deed and the agreement regarding the

interest and thereby denying the tenancy right of the defendant. The defendant has filed T.R. No. 6 of 91 before the Record Officer, Vadipatti to

record his name as cultivating tenant which was allowed and the defendants name has been registered as cultivating tenants in the records of

tenancy rights. The 1st plaintiff is liable to pay a sum of Rs.20,000/- as loan amount and Rs.10,000/- towards improvement made in the suit

property. All the improvements have been made only with the knowledge and permission of the 1st plaintiff. The 1st plaintiff is not entitled to the

relief of redemption of mortgage unless the entire amount of Rs.20,000/- is paid to him. The plaintiff is not entitled to recovery of possession as the

defendant is in possession of the suit property as cultivating tenant. The 1st plaintiff is not entitled to mesne profits as she can claim 1/3rd waram

after the redemption of mortgage as the defendant is in possession of the suit property as cultivating tenant. The suit as framed is not maintainable

and the same is liable to be dismissed.

On the above pleadings the learned trial judge has framed four issues and one additional issue for trial. Before the trial Court, the first plaintiff

has examined herself as P.W.1 and exhibited Ex.A.1 to Ex.A.4. The defendant has examined himself as D.W.1 and exhibited Ex.B.1 to Ex.B.5.

The learned trial judge, after giving due consideration to the oral and documentary evidence let in before him, had come to the conclusion that the

plaintiffs are entitled to the relief as prayed for in the plaint and accordingly, decreed the suit with costs, relegating the question of mesne profits to a

separate proceedings under Order 20 Rule 12 of CPC. Aggrieved by the findings of the learned trial Judge, the defendant preferred an appeal in

A.S. No. 67 of 2001 before the Subordinate Judge, Madurai. The learned first appellate Judge, after giving due deliberations to the submissions

made by the learned Counsel appearing on either side and after scanning the evidence both oral and documentary, has come to the conclusion that

there is no ground to interfere with the findings of the learned trial Judge and accordingly, dismissed the appeal thereby confirming the decree and

judgment of the learned trial judge, which necessitated the defendant to approach this Court by way of this second appeal.

Heard the learned Counsel Mr.V.Sitharanjandas appearing for the appellant and the learned Counsel Mr.K.Sekar appearing for the

respondents and considered their rival submissions.

The substantial questions of law involved in this second appeal are as follows:

a) Whether the Civil Court has got jurisdiction to set aside, cancel, modify or over rule the order of Record Officer in recording the name of the

cultivating tenant in the records of tenancy rights when the same is barred u/s 16(A) of the Tamilnadu Agriculturist Record of Tenancy Rights Act

10 of 1969?

b) Whether the plaintiff is entitled to seek relief of both redemption and recovery of possession especially when the defendant''s name is recorded

as a cultivating tenant in the Records of tenancy?

c) Are not the Courts below as well as the plaintiff estopped from questioning the validity of the order of the Record Officer and confirmed by the

Appellate and Revisional Authority and after the proceedings u/s 10 of CPC and grant of stay?

d) Whether the Civil Court has got jurisdiction to sit over the order of the Record Officer either as an appellate authority or Revisional authority

when there is a bar u/s 16(A) of the Act 10 of 1969?

e) Whether the Courts below are right in considering a document especially when the same was declared as inadmissible in evidence for want of

Stamp duty?

The Point:

7(a) The learned Counsel for the appellant would contend that along with the second appeal, the respondent tried to produce a document, but on

the question of admissibility the said document was not allowed to be received by this Court. Under such circumstances, the substantial question of

law ''Whether the Courts below are right in considering a document especially when the same was declared as inadmissible in evidence for want of

Stamp duty? can be considered, does not arise for consideration. The other substantial question of laws revolve around the jurisdiction of the Civil

Court for ordering delivery of possession to the first plaintiff when there is a specific finding of the Revenue Court in favour of the defendant

declaring him as a cultivating tenant for the suit property. The learned Counsel for the appellant relying on Section 16(A) of the Tamilnadu

Agriculturist Record of Tenancy Rights Act 10 of 1969 (herein after referred to as ''Act 10 of 1969''), which runs as follows:

No civil Court shall have jurisdiction in respect of any matter which the record officer, the District Collector or other officer or authority

empowered by or under this Act has to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken by

such officer or authority in pursuance of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or

under this Act.

Before the trial Court the defendant has produced Ex.B.1 order passed by the Record Officer in T.R. No. 6 of 1991 dated 24.6.1992 with the

first plaintiff Chinna Ponnu as a respondent in the said proceedings. Under Ex.B.1 the Record Officer declared the petitioner/the appellant herein

as a cultivating tenant for S. No. 281/2 measuring 0.81.0 hectors, the plaint schedule property. Ex.B.3 is the order passed by the Revenue Court

in Appeal No. 68 of 1992 preferred against Ex.B.1-order by the first plaintiff Chinna Ponnu. The said appeal has been dismissed. The revsiion

preferred against Ex.B.3-order by the first plaintiff Chinna Ponnu before the Revenue Divisional Officer in Revision No. 4 of 1995 also ended

against her as per the order in Revision No. 4 of 1995 dated 31.9.1998 as seen from Ex.B.5.

7(b) The learned Counsel for the respondent would challenge Ex.B.1-order on the ground that the same is hit by lis pendens u/s 52 of the Transfer

of Property Act, in my opinion will not be applicable to Ex.B.1 proceedings because during the pendency of any suit in any Court any right to

immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or

proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of

the Court and on such terms as it may impose. The Explanation to Section 52 of the Transfer of Property Act would say that:

the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation or the plaint or the institution of the

proceedings in the Court of competent jurisdiction, and to continue until thesuit or proceeding has been disposed of by a final decree or order and

complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any

period of limitation prescribed for the execution thereof by any law for the time being in force.

Admittedly in respect of the plaint schedule property while the suit was pending before the trial Court, no documents was executed by the plaintiff

in order to convey the right pertaining to that property in favour of any other person. According to the plaintiff under a simple mortgage Ex.A.1 the

suit property was enjoyed by the defendant and it is in evidence that even though Ex.A.1 is a simple mortgage to meet the cultivating expenses, the

first plaintiff had borrowed Rs.10,000/- on one occasion and another Rs.10,000/- on another occasion and handed over the possession to the

Defendant, who is none other than her brother. The fact that the defendant had approached the Revenue Court under Ex.B.1 with an application

dated 26.8.1991 to record him as a cultivating tenant after filing of the suit on 1.7.1991, in my opinion, will not be hit by Section 52 of the Transfer

of Property Act. Under Ex.B.1 proceedings, the defendant was recorded as a cultivating tenant for the suit property under the Act 10 of 1969. No

right or interest in respect of the suit property was transferred under Ex.B.1 proceedings to declare the same as hit by the principles of lis pendens.

7(c) The learned Counsel appearing for the appellant relying on 1992 (1) LW 358 (Nemichand v. Onkar Lal), would contend that u/s 108 and 61

of the Transfer of Property Act when a lease is in subsistence in respect of a mortgaged property, the mortgager is entitled only to a decree for

redemption but not for recovery of possession. The fact of the said case is that:

the respondent had leased his property to the appellant and during the period of the lease respondent obtained a loan of Rs.5,000 and executed a

deed of mortgage for5 years; At the end of 5 years he sought back possession by redeeming the mortgage but appellant claimed his right to

continue in possession by virtue of his lease. The respondent approached the Court for redemption. All the Courts below have come to the

conclusion that the appellant had surrendered his possession as a lesee on his entering into a new relationship with the respondent in terms of the

deed of mortgage, and upon redemption of the mortgage, the appellant had no further right to retain possession of the property.

In the Second Appeal it was held that the appellant had symbolically surrendered his possession as a lessee, and no rent was, therefore, payable

by him under the lease during the period of the mortgage, and on redemption of the mortgage, he had no further right or interest in the property and

was no longer entitled to retain possession of the same.

Differing from the said view of the lower courts including the High Court, the Honourable Apex Court held that the Courts below misconstrued the

document to read that rent accrued during the period of the mortgage and that there was a symbolic surrender of possession by the appellant upon

execution of the mortgage deed. This was not the correct position and it was a wrong reading of the document resulting in an error of law. The

words- ''there shall be no interest of amount to you and no rent of the house. The interest of the amount and the rent of the house are equal'' to

show that both interest and rents accrued,but both being in equal sums, neither was payable. That was an adjustment of one liability against

another. In other wards the relationship between the parties as lessor and lessee subsisted. There was no merger of the lease and the mortgage.

No such merger could take place in law.

In the case on hand also the admitted case of the first plaintiff is that after receiving Rs.20,000/- from the defendant, the possession in respect of

the suit property was handed over to the defendant. After taking over the possession of the suit property, the defendant had approached the

Revenue Court to declare him as a cultivating tenant of the suit property and also obtained an order in his favour under Ex.B.1 recording him as the

cultivating tenant for the plaint schedule property. The said order is still in force.

7(d) u/s 9 of the Tamil Nadu Cultivating Tenants Protection Act, 1955, a civil suit for recovery of possession from the cultivating tenant is not

maintainable. For this proposition of law, the learned Counsel for the appellant would rely on 2002 (2) LW 751 (Kamalambal v. Rajalakshmi

Ammal). In the said case the plaintiff/mortgagor has laid a civil action for recovery of possession with the pleadings that the mortgage has been

redeemed,wherein the defence put forth by the appellant was that she was entitled to statutory protection granted under the Tamil Nadu Cultivating

Tenants Protection Act, 1955. The defendant in the said case resisted the claim of the plaintiff on the ground that the civil Court cannot go into the

question as to the validity of the order of the Record of Tenancy Officer recording the appellant as a cultivating tenant and that the civil Court

cannot act as an appellate Authority against the order, but only the Appellate Authority, as constituted under the Act 10/69 could exercise the

jurisdiction as an appellate forum. The trial Court decreed the suit. On appeal the findings of the trial Court was confirmed. While disposing of the

second appeal, following the decision of the Full Bench of this Court in Periathambi Goundan Vs. The District Revenue Officer, Coimbatore and

Others, , this Court held as follows:

It has to be necessarily found that the Bar u/s 16A of the Act is squarely applicable to the facts and circumstances of the present case, since the

present suit was filed by the respondent long after the introduction of the aforesaid provision. Hence, in view of the express exclusion of the Civil

Court jurisdiction to determine whether a person is a cultivating tenant or not?, in the instant case, both the Courts were in error in holding that the

civil Court has got jurisdiction to determine the question and over-looking the express exclusion of the Civil Court jurisdiction u/s 16A of the said

Act"" The learned Counsel for the appellant for the same proposition of law relied on 98 LW 536 (S.Balasubramanian v. Shamsu Thalreez amd

Ors. ), wherein a Devision Bench of this Court has held as follows:

For instance, the statutory requirement for the preparation of a record under the Act is that the land must have been let out 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 u/s 16A. From the language of Section 3(2) it cannot be stated that the determination of that controversy is within the exclusive

jurisdiction of the authorities functioning under the Act, though the determination of that controversy is basis 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 lands and therefore if there is no tenancy inrespect 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 ''land owner'' occurring in Section

2(5) of the Act because according to the said definition, ''land owner'' 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 he 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 out for

cultivation by a tenant, then the Record Officer will have jurisdiction to determine the further particulars provided for in Section 3(2) of the At. If,

on the other hand, the decision of the controversy is that that 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 matter provided for in

Section 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 u/s 16A of the Act.

7(e) Relying on the decision in 1999(3) LW 316 (Cheriyan Sosamma amd Ors. v. Sundaressan Pillai Saraswathy Amma amd Ors. ), the learned

Counsel for the appellant would contend that even after the redemption of the mortgage the lessee has right to continue in possession as a

cultivating tenant. The relevant observation in the above said dictum is that:

This Court, in a series of cases has concluded the question by holding that the question whether upon redemption of usufructuary mortgage a

tenant- mortgagee was required to deliver actual or physical possession of the mortgage property to the lessor-mortgagor depends upon the

intention of the parties at the time of the execution of the mortgage deed. There is no automatic merger of the interest of a lessee with that of a

mortgagee when the same person is the lessee as well as the mortgagee, in the absence of proof of surrender of the lease. Unless there is merger of

both rights on redemption of the mortgage, the plaintiff is not entitled to recover physical possession of the property. The right of lessee to continue

in possession would survive after redemption.

7(f) Per contra, the learned Counsel for the respondent relying on 1998(3) LW 332 (Kasilinga Padayachi v. Kaliayaperumal Padayachi and 2

Ors.), would contend that since the defendant had obtained Ex.B.1 during the pendency of the suit, his possession cannot be protected since the

same is hit by Section 52 of the Transfer of Property Act. As I have discussed about this a point in the previous paragraphs as to the fact that

Ex.B.1-order was not a fraudulent or collusive order to be discredited. In the ratio relied on by the learned Counsel for the respondent in 1998(3)

LW 332, it has been held by this Court that on the basis of mere entry in the tenancy record which were brought about fraudulently and collusively,

cannot override the legitimate rights of the parties as would flow from actual transactions between the parties.

7(g) A perusal of Ex.B.1-order in the case on hand would clearly go to show that the first plaintiff in the array of parties, the defendant had

recorded himself as a cultivating tenant to the plaint schedule property. The appeal as well as the revision taken against Ex.B.1-order by the first

plaintiff ended in failure as seen from Ex.B.3 & Ex.B.5. Under such circumstances, it cannot be said that Ex.B.1 was obtained by the defendant

fraudulently or collusively. So the facts of the case in 1998(3) LW 332 will not be applicable to the present facts of the case.

7(h) Relying on 1963(3) SCC 79 (The All India Film Corporation Ltd., amd Ors. v. Sri Raja Gyan Nath amd Ors. ), would contend that the

termination of the mortgagee''s interest terminated the relationship of the landlord and tenant and it could not, in the circumstances, be said to run

with the land. There being no landlord and no tenant, the provisions of the Rent Restriction Act could not apply any further. Nor could it be said

that when the mortgagor cancelled the rent note and authorised the mortgagee to find any other tenant, the intention was to allow expressly a

tenancy beyond the term of the mortgage. Relying on the above dictum, the learned Counsel would contend that since the first plaintiff has

redeemed the mortgage, the defendant cannot restrict the claim of the plaintiff by saying that he is a cultivating tenant, refusing the delivery of

possession in respect of the suit property. But as far as the defendant is in possession of the suit property as a cultivating tenant as recorded as per

the provisions under the Act 10 of 1969, it is not open to the plaintiff to take such a plea that after redemption the defendant cannot continue his

possession in respect of the suit property in lieu of a specific bar u/s 16A of the Tamilnadu Agriculturist Record of Tenancy Rights (Act 10 of

1969).

7(i) Both the Courts below have held that the plaintiffs are entitled to a decree for redemption of the suit mortgage in respect of the plaint schedule

property, which in my opinion does not warrant any interference from this Court. But both the Courts have erroneously, forgetting for a moment

that the defendant is a cultivating tenant recorded as per the provisions under the Act 10 of 1969, the Civil Court u/s 16A of the Act 10 of 1969 is

not empowered to dispossess his possession in respect of the suit property, which in my view warrants interference. Substantial questions of law

are answered accordingly.

In fine, the second appeal is partly allowed and the judgment of the first appellate Court in A.S. No. 67 of 2001 on the file of the Principal

Subordinate Judge, Madurai , is set aside regarding the delivery of possession. In other respects, the findings of the first appellate judge is

confirmed. Considering the close relationship of the parties, there is no order as to costs.