ORDER
1. This appeal is directed against the judgment of learned Subordinate Judge, Tiruchi in A.S.No.111 of 1986 in reversing that of learned District Munsif, Musiri in O.S.No.1411 of 1982. The plaintiff in the suit is the appellant in the above appeal.
2. The suit was filed for a decree for permanent injunction, the plaintiff contending that the suit property originally belonged to one Chellammal, wife of Periannan, the mother of the plaintiff, who was living at Penang. She purchased it for a sum of Rs.9,000 on 15.7.1960 from one Muthuswamy Pillai under registered sale deed-Ex.A-1. Chellammal was residing at Penang and the plaintiff is the only legal heir of Chellammal, living in India and the plaintiff had been entrusted with the property, to look after the same and to maintain proper accounts. Since then, the plaintiff was in possession and cultivating the property and paying the kist. No other person had any right or possession of the property. The first defendant was sister of the plaintiff’s husband and the second defendant was the son of the first defendant. While they have absolutely no right, title or interest over the property, since the plaintiff was a lady, the defendants were assisting the plaintiff in managing the property inclusive of paying the taxes. But the defendants, taking undue advantage of the situation, sought for the entrustment of the land for themselves to cultivate the land and as the plaintiff refused to oblige them, the defendants had adopted a hostile and challenging attitude. The defendants being influential persons, had high-handedly obstructed the plaintiff from irrigating the lands on 20.12.1982 and hence the suit.
3. In the written statement filed by the defendants, the fact that Chellammal was the owner of the property, having purchased the same on 15.7.1960, was admitted. The sale deed was negotiated and got executed when Chellammal was at Penang and the father of the defendants, one Mahamuni alone pushed through the sale on behalf of Chellammal. Chellammal continues to be at Penang and it was false to state that she had entrusted the property to the plaintiff. The plaintiff did not take possession of the property, nor, she continued to be in possession of the property. Chellammal herself was not in possession of the property at the time of the sale as she was not in India, On the other hand, the property was negotiated only by Mahamuni, who let out the property immediately after the sale to the first defendant, being his own daughter. Mahamuni was the power agent of Chellammal and the lease was oral and the first defendant took possession of the property and since then, had been in open and continuous possession and in personal enjoyment of the suit
property as a cultivating tenant. She was raising paddy and plantain crops and had also obtained loan from Co-operative Society. Therefore, as, a cultivating tenant, the first defendant alone was in possession and enjoyment of the property. It is true that the first defendant is the sister-in-law of the plaintiff, but it was riot correct to state that she was only helping the plaintiff in the cultivation of the properly. The plaintiff never cultivated the property. It was also hot correct to state that the defendants had asked for the release of the property from the plaintiff. The alleged obstruction to the irrigation of the field on 20.12.1982 was also false. It was further contended that the plaintiff had no locus standi to file the suit, since she had no legal right to sue. She had no title or possession.
4. The trial Court, on an analysis of the pleadings and the evidence, concluded that the plaintiff was in possession of the property on the date of the suit and being the legal heir of the owner of the property, was entitled to injunction as prayed for. On appeal, however, the appellate Court held that the defendants had established possession of the property on the date of the suit and that the first defendant’s name haying been entered as a cultivating tenant in the Record of Tenancy, the civil Court had no jurisdiction to grant a decree as prayed for. Hence the present second appeal.
5. When the appeal was taken up for hearing, a petition had been filed by the appellant in C.M.P. No.9190 of 1999 under Order 6, Rule 17, C.P.C. seeking amendment of the plaint praying for recovery of possession of the property.
6. I have spent considerable time to analyse the facts of this case. The
outcome of examining the evidence and the circumstances leading to the present
state of affairs, discloses the easy ways by which the process of Court as well as
proceedings before the revenue authorities are abused as against a helpless
widow, whose property is sought to be snatched away by her own husband’s
sister with the help of her son and husband. Not only they had managed to obtain
false records, with the connivance of the revenue authorities, but also the
appellate Court had chosen to adopt a cavalier attitude towards the plaintiff by
reversing the well considered judgment of the trial Court-thereby reminding us
that a mechanical approach under Section 100, C.P.C. to refuse to appreciate the
evidence, could spell injustice to poor and gullible litigants. If a reading of the
evidence could lead to two different conclusions, it is not for the High Court to
adopt its own reasonings. But, if only one conclusion is possible, to refuse to
interfere against adverse and unconscionable findings on a pedantic interpretation
of Section 100, C.P.C., would result in reflecting very badly on the propriety or
correctness of the system and wisdom of pecuniary jurisdiction, being the basis
for higher Courts not to apply their minds to the facts of a given case and not to
do proper justice to the aggrieved party, only because the stakes are
comparatively low.
7. Here is a case where the owner, being a lady who lives in Penang (Malaysia), now dead, during the pendency of this second appeal and her only heir, daughter, the plaintiff, seeks to prevent her own late husband’s sister, usurping possession of the property on the basis of contradictory pleadings and tailored revenue records. The surprising feature is that the defendants do not dispute that the property belongs to the plaintiff’s mother and that the plaintiff
is the only legal heir of her mother, but, yet, are able to take high-handed advantage of the loopholes in the legal system and stick to the possession of the property, thus depriving the lawful owner, her property. The trial Court; after a very careful and detailed analysis of the evidence, disbelieved the evidence of the defendants and also held that the order issued by the Tahsildar under Ex.B-18 dated 2.5.1984 recording the name of the first defendant as a cultivating tenant cannot be sustained due to various reasons. The learned District Munsif had also referred to several vital contradictions between the pleadings and the evidence on the side of the defendants as regards the alleged, taking over the possession of the lands by the first defendant as a tenant and the admitted fact that one Pitchai Ratninam, who was the Village Munsif during the relevant period, was a very close relative of the defendants. After taking into account of the relevant circumstances, the trial Court came to the conclusion that the entry in the revenue records cannot advance the case of the defendants in any manner. In contrast, without considering any of the evidence, the appellate Court merely took note of the order issued in favour of the first defendant under Ex.B-18 and concluded that since the first defendant’s name had been entered in the register, it would follow that the civil Court had no jurisdiction to deal with the issue. Such a finding rendered oblivious of the circumstance that the very step taken before the authorised officer under the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1969 was only subsequent to the filing of the suit and without proper service of the notice either to the land owner or to the plaintiff and that the entire circumstances relating to the passing of the order under Ex.B-18 would vitiate the said proceedings. It has to be borne in mind that when once the defendants had conceded that the property belongs to the plaintiff’s mother and the plaintiff was the lawful heir, when the first defendant seeks to establish that she was a tenant of the land, the burden is on her to establish the same.
8. The following circumstances will disclose that neither the plea of
tenancy is bona fide, nor, the revenue records produced by the first defendant
have any semblance of validity.
(a) While in the written statement as well as in the oral evidence, the first
defendant has positively stated that the property was purchased by the plaintiff’s
mother and that the sale was negotiated by Mahamuni, the father of the first
defendant, on behalf of the plaintiff’s mother, for which, money was sent by the
plaintiff a mother, strangely, in the cross-examination of the plaintiff, a suggestion
has been made to the effect that it was the plaintiff’s father who had given the
amount to Mahamuni to purchase the property.
(b) Though, according to the first defendant, her father Mahamuni was the Power Agent of the plaintiff’s mother and that he purchased the property with the funds sent by the plaintiff’s mother from Malaysia at the time of the purchase, the plaintiff’s positive case is that her mother had purchased the property while she was very much in India in 1960 and that she left India only after two years after the purchase and after the plaintiff’s marriage. But, curiously, no suggestion has at all been made to the plaintiff that her mother was not in India at the tine of the purchase. It is also pertinent to note that even though Periasamy, one of the witnesses to the sale deed had been, examined on the side of the defendants as
D.W.2, he has also not stated that the plaintiff’s mother was at Malaysia at the time of the transaction. His statement that the property was purchased by Mahamuni is not worthy of acceptance. For reasons best known to himself, D.W.2 had stated that he did not go to the Registrar’s Office even though Ex.A-1 clearly shows that he was present at the time of registration and that he had identified the executant before the Registrar. The recitals also clearly show that the consideration had been received only from plaintiff’s mother and there is absolutely no reference about the vendor having received any money from Mahamuni. The stamp paper had also been purchased only in the name of the plaintiffs mother. It is true that the plaintiff had stated that the transaction was negotiated through Mahanuni, but, it is totally a different thing to say that the entire transaction including the handing over of the money to the vendor was complied with by Mahamuni as a Power of Attorney of Chellammal. No such Power of Attorney had been produced on the side of the defendants. This story of the plaintiff’s mother not being in India, which has no basis at all, is trotted out only to support the claim of the defendants that it was Mahamuni, who was in-charge of the property and had orally leased out to the first defendant in the capacity of being a Power of Attorney of the purchaser.
(c) Though the first defendant contends that she had obtained an oral lease from Mahamuni as power of Attorney of the plaintiff’s mother, D.W.2 examined on her side, who is a witness to the sale deed, states that the first defendant told him that she had obtained a lease from Chellammal, the plaintiff’s mother. The further strange aspect of the first defendant’s evidence is the statement by her that herself and her father Mahamuni alone knew about the oral lease. Therefore, admittedly there is no independent evidence to substantiate the plea of oral lease.
(d) The evidence of the first defendant regarding the alleged payment of lease amount is further more dismal.
Though the lease was alleged to have commenced in 1962, the first defendant
claims that in 1972, Chellammal had asked for lease amount for the said ten years
and that the first defendant had paid the amount to her father, Mahamuni. She also
admits that after 1972, she had not paid any lease amount for the past 12 years.
The statement is as follows:
In spite of the said admission, the first defendant has the temerity to claim to be a valid tenant.
9. The above mentioned facts clearly establish that there is absolutely no basis for the claim of the first defendant, being a tenant, much less a cultivating tenant under the plaintiff’s mother.
10. The following facts relating to the so-called recognition of the first defendant as a cultivating tenant under the Tamil Nadu Agricultural Lands (Record of Tenancy Rights,) Act, 1969, are further more depressing:
(a) Admittedly, the very petition before the Tahsildar had been moved only during 1984, two years after the filing of the suit. ln a similar case, arising out of the Tamil Nadu Rural Artisan (Conferment of Ownership of Kudiyiruppu) Act, 1976, where, the objection to the maintainability of the civil suit was raised on the basis of statutory, bar of jurisdiction of the civil Court, in which also, the defendant/tenant approached the appropriate authority under the said Rural Artisan Act long after the receipt of the suit notice, in the judgment reported in Esakki v. Subramania Aiyer, , I had already held that the provisions of the said Rural Artisan Act are not meant for frivolous abuse of the statutory provisions and the powers of the civil Court are not taken away by the mere allegation of the defendant that he is entitled to the protection of the said Rural Artisan Act, and that it was open to the civil Court to consider as to whether the defendant was at alL entitled to the protection of the said Rural Artisan Act. The present case is one more instance of glaring abuse of the provisions of the beneficial Acts.
(b) The first defendant has admitted in her evidence that she had taken steps before the Record of Tenancy Tahsildar only after the suit and in the written statement filed by her on 20.1.1984 also, there is no reference to such proceedings having been initiated. Hence, it is obvious that she had approached the authority only subsequently and the Tahsildar, Musiri, had passed his order on 2.5.1984 (Ex.B-18). The Tahsildar who had condescended to pass a hasty order on 2.5.1984, has mentioned about the respondent therein, namely, Chellammal, as below:
“The respondent Chellammal W/o.Periyanna Vathiyar is in Malaysia and hence her presence in Court could not be secured.”
In another place, it is observed as follows:
“As the respondent was not present in the Court through notices were sent to her. Witnesses on her behalf could not be examined:,”
The trial Court has rightly taken note of the fact that the first defendant had positively stated that she does not know about the address of Chellammal, but, yet, the following address has been shown in the cause title of the order in Ex.B-18:
“Chellammal W/o. Periyanna Vathiyar, Thoomian Estate, Malaysia.”
Not even the name of the town ‘Penang’ has been given in the address. The very address signifies that it is incomplete and there can be no question of any service on such an incomplete address, which is deliberate. Another significant factor is that no copy of the order has been marked to the owner, Chellammal. It is also pertinent to note that the plaintiff herself had raised a dispute over the possession of the property in the year 1983 itself and the present suit had also been filed in the year 1982. Inspite of the same, neither the first defendant chose to implead the plaintiff as a party; nor, the Tahsildar thought it fit to send notice to the plaintiff before passing the order. Therefore, so-called enquiry and the entire proceedings are vitiated by total absence of notice to the land owner, rendering the order nothing more, than a fraudulent scrap of paper.
(c) It is further painful to note that in order to substantiate the tenancy,
one Chinnaswamy has been examined as P.W.2 before the Tahsildar, who
claims to have cultivated the land till 1965 and that he let out the land to
Ponnammal (first defendant) as he was not keeping good health. There is
absolutely no statement recorded by the Thasildar disclosing the entrustment
of the land either by the land owner to the first defendant, or even by
Mahamuni, as alleged by the first defendant in the present suit. One Pitchai
Rathinam who was alleged to be the Village Munsif during the relevant time,
who was examined as a witness before the Tahsildar, would also state that it
was Chinnaswamy who had let the land to Ponnarammal. It is true that even a
sub-tenant could validly continue as, a cultivating tenant, but the evidence
before the Tahsildar is totally inconsistent and contrary to the case set-up by
the first defendant in the suit, namely that the first defendant was let in as a
tenant in 1962 itself by her own father Mahamuni, on oral lease. There has
been absolutely no regard for or even pretence of truth in the present case, on
the side of the defendant.
(d) The worst feature of Ex.B-18 is that D.W-1, the first defendant, very proudly admits in her evidence as follows:
But a perusal of Ex.B-18 shows that Ponnammal is alleged to have been examined as P.W.1 before the Record of Tenancy Officer/Tahsildar.
(e) The first defendant has also further positively stated that she is
cultivating not less than 15 acres, out of which, she was the owner of 7 acres
and she had the leasehold, rights over another 7 acres as well as the suit
property. It is not known as to how the plaintiff is entitled to claim either the
benefit of Tamil Nadu Cultivating Tenants Protection Act, 1955 or to be
recorded as a tenant under the Tamil Nadu Agricultural Lands (Record Of
Tenancy Rights) Act, 1969.
11. There can be no hesitation in concluding that Ex.B-18 is not the worth even the paper on which it is written and that it has been fraudulently procured by the first defendant’s son and her husband. It is rather shocking to observe as to how the beneficial legislations are abused and misused in a high-handed manner and the level to which the revenue officials could descend as against the poor and helpless citizens. The judgment of the Appellate Court in refusing to consider all these obvious and apparent features could not be termed anything Jess than as perverse and illegal.
12. No doubt, Mr.N.P.K.Menon appearing for the respondents, relied on some of the rulings in support of his contention that in respect of any relief under the Tamil Nadu cultivating Tenants Protection Act, 1955, or the Tamil Nadu Agricultural, Lands (Record of Tenancy Rights) Act, 1969, a civil suit would be barred and Section 9, C.P.C. cannot be invoked. There can be no quarrel over the said proposition of law. But, having regard to the facts and circumstances of the present case, where the alleged tenant had moved the authorities under the
Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1969 only very much later than the filing of the suit, and in view of my finding that the manner in which the order under Ex.B-18 had been issued, is vitiated by fraud and other illegalities, the said objection cannot be entertained. Moreover, the peculiar feature is that such a defence was not at all taken in the written statement, because, the very action before the Tahsildar culminating in an order under Ex.B-18 had been initiated only after the filing of the written statement and also considering the circumstances under which the order had been obtained, I had already indicated that such actions ought not be recognised by the Courts and provisions of special Acts and beneficial legislations cannot be misused for fraudulent purposes by persons who are neither tenants nor entitled to claim the benefits of the Act at all.
13. Now, coming to the relief, it is obvious that mere has been scramble for
possession immediately after filing of the suit. The plaintiff, apart from having
filed the sale deed, patta in the name of Chellammal, had also filed Adangal
extracts for Faslis 1381 to 1389 (1971 to 1979), The communication dated
10.2.1983 sent to the Tahsildar by the plaintiff complaining about the illegal
attempts on the part of the first defendant to have her name entered in the tenancy
records, was promptly returned by the Tahsildar’s office for want of particulars.
Thereafter, the helpless plaintiff approached the Revenue Divisional Officer,
Musiri and appears to have complained about the trespass into her lands
whereupon under Ex.B-24 dated 9.4.1983, the Revenue Divisional Officer had
summoned both parties for enquiry on 12.4.1983. Under Ex.B-25, it is seen that
both parties have signed a joint Memo that in view of the pendency of
proceedings before the civil Court in C.M.A. No.39 of 1983, they would await
and abide by the result of the said proceedings. AS against the said circumstances,
the Exhibits filed on the side.of the defendants are not worth acceptance. Exs.B-1
to B-7 kist receipts stand only in the name of Chellammal. Ex.B-8 is also in the
name of Chellammal as owner. The trial Court had rightly taken note of the fact
that Pitchai Kathinam, who was the then Village Munsif and who was also related
to the defendants, had obviously obliged the defendants. Exs.B-11 to B-17 are the
copies of the documents obtained after the filing of the suit. Exs.B-20 to B-23 are
self-serving account books and rightly rejected by the trial Court. It is also quite
possible that some of the kist receipts are in possession of the defendants, having
regard to the circumstance that as close relatives, they had access to the plaintiffs
family till some misunderstandings appear to have arisen between the parties on
a matrimonial proposal, otherwise, if the plaintiff had never been in possession of
the property, ever since 1962, as alleged by the defendants, the plaintiff could not
have filed kist receipts and Adangal extracts for the years 1971 to 1979.
Therefore, the trial Court rightly came to the conclusion that as on the date of the
suit, the plaintiff had established her possession and had granted the decree for
injunction.
14. As observed earlier, having regard to the facts mentioned above, after the filing of the suit, there has been a scramble for possession. It is apparent that it is during the pendency of the suit, the defendants had indulged in high-handed
action of taking possession of the property and creating false and invalid revenue records. The persons who have admittedly no claim of any title over the property, are yet able to grab the property through muscle power and with the connivance of the revenue officials, some of whom are ready to oblige money power as against the-helpless woman/plaintiff.
15. Therefore, on the basis of the above discussion, I am inclined to set aside the findings of the appellate Court that the first defendant was a cultivating tenant and that as a result of the entry in the Record of Tenancy, suit could not be maintained. I am also inclined to set aside the finding of the appellate Court that the defendants had shown to be in possession of the property on the date of the suit.
16. It is true that having regard to wide powers conferred on the appellate Court under Order 41, Rule 33 C.P.C. and in the interest of doing complete justice between the parties, this Court itself can mould the relief in such a manner and grant the relief directly for recovery of possession.
17. The plaintiff/appellant had also filed C.M.P.No.9190 of 1999 for
amendment of the plaint for recovery of possession of the suit property. But,
having regard to the fact that the defendants would be entitled to file additional
written statement, the second appeal requires to be remanded to the trial Court.
Since there is no question of any rule of limitation which could be claimed by the
defendants as against the amendment, having regard to the fact that the
defendants only allege to be tenants, the prayer for amending the plaint has to be
allowed. However, it is also necessary that the defendants have to be provided
with an opportunity to file additional written statement-vide-judgment of the
Supreme Court reported in Leach & Co. Ltd., v. M/s. Jardine Skinmer & Co,
AIR 1957 SC 557 and judgment reported in Tharayil Sarada and another V.
Govindan and another,. It would be an injustice to drive the
plaintiff to the necessity of filing a fresh suit seeking recovery of possession,
which she ought to have prayed for during the pendency of the suit itself
immediately after she was dispossessed.
18. With the result, C.M .P.No. 9190 of 1999 is allowed and the second appeal be remanded to the trial Court. The plaintiff is permitted to carry out the amendment before the trial Court. The suit will stand remanded to the trial Court to enable the plaintiff to carry out the amendment and the defendants will also file their additional written statement within a period of one month thereafter, and the trial Court shall proceed with the examination of witnesses, if any, and complete the entire process and dispose of the suit, within a period of three months from the date of receipt of records and a copy of this judgment.
19. With the result, the second appeal is allowed and remanded in the above terms with costs. The parties to appear before the trial Court on 19.1.2000.