The appellant is the plaintiff in O.S.No.96 of 2005 on the file of the District Munsif Court, Thiruvaiyaru. He has filed the suit as against the respondent for the relief of permanent injunction restraining the defendant and his men from in any way interfering with his peaceful possession of the suit property and for cost. The learned District Munsif, Thiruvaiyaru, by judgment and decree dated 30.07.2008, decreed the suit without cost.
2.Aggrieved over the said finding, the defendant/ respondent filed an appeal in A.S.No.52 of 2008 before the learned Additional Subordinate Judge, Thanjavur, seeking the relief to set aside the judgment and decree passed by the learned District Munsif, Thiruvaiyaru. The learned Additional Subordinate Judge, Thanjavur, by judgment and decree dated 17.04.2009 allowed the appeal and set aside the decree granted in favour of the plaintiff. Feeling aggrieved by the same, the appellant/plaintiff has filed the present Second Appeal.
3.For the sake of convenience, the parties are referred to as, as described by the trial Court.
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4.The averments made in the plaint, in brief, are as follows:-
The suit schedule property is the cultivable nanja lands owned by one Pitchaiammal, wife of Ramasamy Sasthiri. She leased out the suit property to the plaintiff by entering into a lease agreement dated 05.04.1985. As per the terms of lease agreement, the plaintiff has to measure 16½ Kalams of paddy to the land in samba and 16 ½ kalams in thaladi. Thus, a total of 8½ bags of paddy has to be measured per year. The name of the plaintiff is also entered in the rolls of R.T.R. Accordingly, the plaintiff is the cultivating tenant within the meaning of Act 25 of 1955. The landlady used to come to the village once in a year and collect the rent. The defendant is having cultivation near the suit land. Hence, he requested the plaintiff to sub-lease the suit property. But, the same was refused by the plaintiff. Aggrieved by the fact that the plaintiff refused to sub-lease the suit land, on 11.06.2005 the defendant came to the suit property and obstructed the work. The complaint preferred by the plaintiff before the Police, was ended in vain. Hence, the suit has been filed for the relief of permanent injunction.
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5.The averments made in the written statement filed by the defendant, in brief, are as follows:-
There is no lease agreement entered in between the Pitchaiammal and the plaintiff. The plaintiff was not performing any agricultural work in the suit land. The land lady, Pitchaiammal was died in earlier. Only to avoid payment of rent, the plaintiff has stated that the landlady came to the village and collected the rent. It is not correct to state that the defendant is not having any right in the suit property. In reality, the father of the plaintiff Palaniyandi took the suit property on lease and cultivated the same for the past several years. He is having three sons, in which, one son namely, Kalimuthu was no more. The other sons namely, Ganeshan and Sachithanantham are still alive. At the time of death, the said Kalimuthu leaving his son namely, Ravi as his legal heir. On 17.07.1995, the plaintiff, the said Ravi and Ganeshan executed the deed for changing of lease and as per the said arrangement, the land measuring about 41.2/3 cents was allotted in favour of the Ravi. Thereafter, he was working as a cultivating tenant. The said Ravi was died on 14.07.2000 and at the time of his death, his mother Kashiammal and his daughters namely, Chellapappa, Vashanthi and one Ponkodi are alive. In fact, the defendant is the http://www.judis.nic.in 5 husband of the said Ponkodi. The said Ponkodi obtained the possession of the suit property by succession and cultivated the same, by raising necessary crops. The suit is bad for non-joinder of the said Ponkodi. In otherwise, the suit is liable for dismissal.
6.Based on the above said pleadings, the learned District Munsif, Thiruvaiyaru, had framed necessary issues and tried the suit.
7.Before the trial Court, on the side of the plaintiff, the plaintiff examined himself as P.W.1 and marked eight documents as Ex.A-1 to Ex.A-8. On the side of the defendant, three witnesses were examined as D.W.1 to D.W.3 and four documents were marked as Ex.B.1 to Ex.B.4.
8.Having considered all the materials placed before him, the learned District Munsif, Thiruvaiyaru, granted decree in favour of the plaintiff and the same was set aside in appeal by the learned Additional Subordinate Judge, Thanjavur. Aggrieved over the same, the appellant/plaintiff has filed the present second appeal. http://www.judis.nic.in 6
9.At the time of admitting the Second Appeal, this Court has formulated the following Substantial Question of Law, for consideration:-
“ When the plaintiff has filed Ex.A2 to prove his tenancy rights and possession in view of the presumption under Section 15 of the Act 10/69 was the dismissal of the suit filed by the plaintiff for injunction is tenable in law?”
10.It is the specific case of the plaintiff that he is the cultivating tenant under one Pitchaiammal. As per the plaint averments, in the suit land measuring an extent of 0.33.5 Hectors in R.S.No.268/2 of nanja land in Vishnampettai Village, Thiruvaiyaru Taluk, Thanjavur District, the plaintiff cultivated the paddy and paid the agreed lease to the Pitchaiammal in the form of paddy. In order to prove the said averments, before the trial Court, he marked the tenancy agreement, dated 05.04.1985, executed in between the Pitchaiammal and plaintiff, as Ex.A.1.
Further, he produced the certificate issued under R.T.R as Ex.A.2. The said certificate was issued by the competent officer (Tashildar), in which it was certified that the plaintiff is the tenant in the suit land. No doubt, if the said tenancy is proved by the plaintiff, the http://www.judis.nic.in 7 said situation creates and establishes the possession of the plaintiff in the suit land.
11.Before the trial Court, the specific case of the defendant is that the plaintiff and defendant are distant relatives. In earlier, one Palaniyandi, who is the father of the plaintiff, is a tenant under Pitchaiammal in respect to the suit property. Apart from the plaintiff, the said Palaniyandi gave birth to two other children namely, Ganeshan and Kalimuthu. From the above, the said Kalimuthu is having one son namely Ravi. Further, the said Ravi gave birth to three daughters namely, Chellapapa, Vasanthi and Ponkodi. After entering into tenancy with the Pitchaiammal, the father of the plaintiff Palaniyandi cultivated the suit land for so many years and after the demise of the said Palaniyandi, his sons namely, Sachinanantham, Ganeshan and Ravi entered into an agreement, in which half portion of the suit property was allotted in favour of the said Ravi for cultivation. After the said agreement, the said Ravi is in possession and enjoyment of the said portion of the suit property. Since the said Ravi was died, the defendant, who is the husband of the Ponkodi took possession of the property, which was the portion of suit land, in earlier the deceased Ravi http://www.judis.nic.in 8 cultivated and thereby, the defendant is also in possession of the suit property.
12.It is the contention of the defendant that the agreement entered between the sons of Palaniyandi, dated 17.07.1995, was marked before the trial Court as Ex.B.1. It appears from the judgment rendered by the trial Court that the said document was marked with the objection of the plaintiff. In this regard, the learned counsel appearing for the plaintiff would contend that the said document is unregistered one. Hence, it did not create any right and title in favour of the defendant. On appraising the said document It is true that the said document is unregistered one. However, through the said document only the arrangement was made between the sons of Palaniyandi and the said document did not create any right in respect to the suit property in favour of any one. So, it has been produced for the collateral purpose and thereby the said document cannot be rejected in toto. Ultimately, since the suit has been filed for the relief of injunction before the trial Court, the plaintiff is attempted to prove his possession through Ex.A.1 and Ex.A.2. On the other hand, the defendant is attempted to prove his possession through http://www.judis.nic.in 9 Ex.B.1. In other wise, the other documents marked on the side of the plaintiff and defendant and all kist receipts are having same patta number in the name of Pitchaiammal. The trial Court by believing Ex.A.1 and Ex.A.2 granted the relief in favour of the plaintiff. On the other hand, during the time of first appeal, the first appellate Court by believing Ex.B.1 came to the conclusion that the defendant is in possession and enjoyment in the half portion of the suit property and set aside the decree. In general, it is the basic thing that since the prayer sought for by plaintiff for the relief of injunction, he has to prove the possession. But in the first appeal without knowing the said principle, the first appellate Court came to the conclusion that the defendant through Ex.B.1 proved his possession.
13.In this regard, it is the contention of the plaintiff that the document relied on by the defendant, viz., Ex.B.1 is not at all having any value and the signatures found in the said document is not the signature of the plaintiff. In this aspect, it is necessary to see the evidence given by the plaintiff. At the time of giving evidence as P.W.1, the plaintiff has specifically stated that the signature found in the deposition, plaint and the vakalath are all http://www.judis.nic.in 10 not belonged to him. It shows that being the illiterate, he is not in a position to decide whether the earlier signature found in the above documents are belonged to him or not. So, on go through the veracity of evidence given by P.W.1 before the trial Court with the contention raised by the learned counsel appearing for the plaintiff, I am of the considered view that it cannot be stated that the signature found in Ex.B.1 is not belonged to the plaintiff. However, since the plaintiff and defendant attempted to prove the possession by way of written documents, it is necessary to see the document exhibited on which one of the document is having much reliability.
14.Before the trial Court the certificate issued by the Tashildar was marked as Ex.A.s. The said certificate issued by the Tashildar will prove that the plaintiff is a tenant under the Pitchaiammal. In the said circumstances, it is necessary to see Section 15 of Act 1969 of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act and the same reads as follows:-
15.Presumption of correctness of entries in the approved record of tenancy rights.-- Any entry in the approved record of tenancy rights shall be presumed to be true and correct http://www.judis.nic.in 11 until the contrary is proved or a new entry is lawfully substituted therefore.
15.So applying the said section with the case in our hand, since the certificate issued by the competent authority will prove that the plaintiff is the tenant under Pitchaiammal and consequentially, as per the said Section he is in possession of suit property. Even assuming that Ex.B.1, which is an agreement executed in between the sons of palaniyandi, is a true one, the said document has been executed as per the case of the defendant on 17.07.1995. On the other hand, Ex.A.1 and Ex.A.2 are dated 05.04.1985 and 07.07.2005 respectively. If Ex.B.1 is executed on the date as above referred, it is duty of the party to take steps to enter the said agreement in the R.T.R. register. But in this case, there is no evidence on the side of the defendant that the details of the agreement is not entered and informed to the authorities, who maintained the tenancy records. So, the evidence let in by the plaintiff is having more value than the evidence given by the defendant. Of course, the only person who knows the truth, is the Pitchaiammal. But the said Pitchaiammal is not added as a party. Since the relief of injunction granted only on the basis of http://www.judis.nic.in 12 possession, we cannot hold that the land owner is a necessary party to the suit property. In fact, the plaintiff can take presumption under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act.
16.The entire thing put forth by the plaintiff and defendant clearly established that the dispute between the plaintiff and defendant is not with regard to the tenancy. If really the defendant is aggrieved, it is very easy to trace the land owner and produce before the court below to prove the real facts. But both the plaintiff and defendant have not taken any steps to bring the land owner to the Court. However, as already stated since the document relied on by the plaintiff is having the value more than that relied on by the defendant, I am of the considered opinion that only the plaintiff has proved the possession. Thereby, the first appellate Court without seeing the said aspect set aside the findings arrived by the trial Court which is nothing but erroneous one. Accordingly, the substantial question of law is answered in favour of the plaintiff that the document relied on by the plaintiff raised presumption in favour of the plaintiff under Section 15 of 1969.
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17.In the result, this Second Appeal is allowed and the Judgment and Decree dated 17.04.2009 passed in A.S.No.52 of 2008 by the learned Additional Subordinate Judge, Thanjavur is set aside and the Judgment and Decree dated 30.07.2008 passed in O.S.No.96 of 2005 by the learned District Munsif, Thiruvaiyaru is restored. No costs.
24.04.2019 Index : Yes/No Internet: Yes/No cp To
1. The Additional Subordinate Judge, Thanjavur
2. The District Munsif, Thiruvaiyaru.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 14 R.PONGIAPPAN, J.
cp Judgment made in S.A(MD)No.831 of 2009 24.04.2019 http://www.judis.nic.in