IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07/01/2005
Coram
The Honurable Mr. Justice V.KANAGARAJ
W.P.No. 230 of 1997
M.Chinnasamy ... Petitioners
-Vs-
1. Tenancy Record Officer-cum-Tahsildar,
Udumalpet.
2. Special Deputy Collector,
(Appellate Authority), Salem.
3. Revisional Authority & Additional Collector,
Coimbatore.
4. M.Muthukrishnan
5. Sreedara Sivasubramaniam
6. M.Jagannathan
7. Smt. Sayammal
8. Smt. Kamalam ... Respondents
Writ petition filed under Article 226 of the Constitution of
India praying for the relief as stated therein.
For Petitioner: Mr.T.R.Rajaraman
For Respondents 1 to 3: Mr.R.Chandrasekaran
Govt. Advocate
For Respondents 4 to 6: No appearance
For Respondents 7 & 8: Mr.A.K.Kumarasamy
:Order
The above writ petition has been filed under Article 226 of the
Constitution of India praying to issue a writ of Certiorari to call for the
records of the third respondent in R.Dis.29617/96/C2 dated 28.11.1 996 thereby
confirming the order of the second respondent dated 22.2.1996 made in
A.P.No.27/95 and that of the first respondent’s order dated 7.7.1995 made in
T.R.No.6/93 and quash the same.
2. In the affidavit filed in support of the above writ petition, the
petitioner would submit that the fifth respondent is the owner of an extent of
9.05 acres in S.No.4, 5 and 27B in Vadapoothinam village, Udumalpet Taluk and
it was leased out by him to the father of the petitioner by name late
V.Mounasamy Naidu who died on 21.3.1990 leaving behind him his widow the 8th
respondent, three sons i.e. the petitioner and respondents 4 and 6 and one
daughter the 7th respondent; that the 4th respondent herein has filed a
petition in T.R.No.6/93 on the file of the First respondent under section 4(2)
of the Tamil Nadu Agricultural Record of Tenancy Rights Act, 1969 wherein
neither the petitioner nor the other heirs were made parties; that on coming
to know of the attempt of the fourth respondent to get himself registered as
the sole tenant, the petitioner and respondents 6 and 7 filed an application
before the first respondent to implead as respondents to the said proceedings
on ground that after the death of their father, the lands were in their
personal cultivation as his heirs and therefore they should be heard in the
said proceedings.
3. The petitioner would further submit that the fourth respondent
filed a counter thereby alleging that after the death of their father, he
alone is in possession and cultivating the land that the first respondent
without understanding the legal right of the heirs of the original tenant, by
an exparte order dated 7.7.1995, recorded the fourth respondent as tenant
under the Act; that aggrieved by the said order, the petitioner and the 6th
respondent herein have preferred an appeal before the second respondent who
has held that the claimants have not produced any records to establish their
leasehold rights and that they are not cultivating the lands in question by
exercising their personal labour and thus confirmed the order of the first
respondent; that aggrieved by the said order of the appellate authority, the
petitioner and the 6th respondent have preferred a revision petition before
the 3rd respondent and since the 3rd respondent also confirmed the orders
passed by the respondents 1 & 2 even though the revision proceedings therein
have produced the orders passed in CMA No.20/1994 by the Sub Court, Udumalpet
which arose out of proceedings in O.S.No.560/1993 filed 4th respondent before
the District Munsif’s Court, Udumalplet, the petitioner has come forward to
file the above writ petition.
4. The petitioner would further submit that the third respondent
without adverting to the legal right of succession as heirs of the original
tenant and the decision of the civil court refusing to grant injunction in
favour of the 4th respondent, has come to a wrong conclusion that the
petitioner and the respondents 6 to 8 are not entitled to be
recorded as tenants under the Act; that admittedly his father Mounasamy Naidu
was the tenant under the fifth respondent and he was a cultivating tenant as
he was doing personal cultivation; that the petitioner and the respondent 6 to
8 were assisting him his cultivation even during his lifetime; that even if
the claim of the fourth respondent that he alone was personally cultivating
the lands is accepted, the right of the other heirs to get themselves recorded
as tenants under the Act along with 4th respondent cannot be denied; that
tenancy right is a property right and under the Hindu Succession Act, the
petitioner and the respondents 4 and 6 to 8 are the class-I, heirs; that even
the personal cultivation by any member of the family of the original tenant
amounts to personal cultivation by all and therefore the authorities under the
Act ought to have recorded all the heirs of the original tenant as cultivating
tenant under the Act.
5. The petitioner would further submit that the respondents 1 to 3
herein have completely misdirected themselves in considering the legal
position involved in the case and they were in error in holding that every
heir of the deceased tenant should prove their personal cultivation; that a
‘cultivating tenant’ is defined as ‘a person who contributes his own physical
labour or that of any member of his family in the cultivation of any land and
includes the heir of such person, if the heir contributes his own personal
labour or that of any member of his family in the cultivation of the land’;
that in the present case, the fourth respondent is the eldest son of the
original tenant; that admittedly, there was no partition among the members of
the family of late Mounasamy Naidu; that in the circumstances, the cultivation
by any of the members of the family of Mounasamy Naidu would amount to
cultivation by the family as a whole and under the circumstances, respondents
1 to 3 ought to have recorded all the heirs of the deceased original tenant as
Cultivating Tenants under the Act.
6. The petitioner would further submit that the fourth respondent
filed a suit in O.S.No.560 of 1993 on the file of the Court of District
Munsif, Udumalpet, for a permanent injunction restraining the petitioner and
the sixth respondent from interfering with his possession in ‘A’ and ‘B’
schedule properties in the suit; that ‘B’ schedule property in the suit is the
subject matter of the proceedings before respondents 1 to 3 herein; that even
though in the proceedings before the first respondent, no claim was made based
on any family arrangement, the fourth respondent who filed the above suit in
December, 1993 set up a case of family arrangement in and by which he was
given the right to the lands exclusively; that the fourth respondent also
filed I.A.No.1819 of 1993 for a temporary injunction pending disposal of the
suit on the same pleading; that the petitioner filed h is counter and
contested the application for injunction denying the averment relating to the
family arrangement; that the petitioner claimed a right to be a tenant as heir
of his father and the learned District Munsif, by his order dated 10.2.1994
allowed the application and granted injunction as against which the petitioner
preferred an appal in C.M.A.No.20 of 1994 before the Subordinate Judge,
Udumalpet, who allowed the appeal insofar as the ‘B’ schedule property is
concerned, which is the subject matter of the writ petition and dismissed the
injunction application; that the learned Subordinate Judge has held that the
plaintiff (the fourth respondent herein) had not established his exclusive
possession of the property and therefore the relief was not granted; that the
suit for injunction is still pending; that the petitioner along with his
mother and sister (the respondents 7 and 8) have filed O.S.No.425 of 1993 on
the file of the Sub Court, Udumalpet on 16.12.1 993 for partition of all the
properties of his father including the leasehold lands which are the subject
matter of the writ petition and the same is pending; that the above facts
clearly disclose that the fourth respondent is not in exclusive possession of
the leasehold lands; that the parties are all in joint possession and
therefore the respondents 1 to 3 ought to have recorded all the heirs of the
original tenant as cultivating tenants under the Act.
7. The petitioner would further submit that even though himself and
respondents 6 to 8 were ordered to be impleaded as parties to the proceedings
by the first respondent, no steps were taken by the fourth respondent to serve
his original application on any one of them; that even though the first
respondent had directed the fourth respondent to take steps after cultivating
them to be impleaded as parties, no step was taken by the fourth respondent by
amending the main petition; that in fact, during the pendency of
T.R.No.6/1993, a compromise was reached on 3.11.1994 in and by which it was
agreed that the petitioner and respondents 4 and 6 would be allotted 1/3rd
share each in the leasehold lands and that the 4th respondent would withdraw
all the cases including T.R.No.6/1993; that inspite of the above facts, the 4
th respondent proceeded with T.R.No.6/1993 without disclosing the civil
proceedings and compromise reached between the parties and therefore, the
petitioner and other heirs were not in a position to participate in the
proceedings before the first respondent and in these circumstances, the
authorities ought to have given an opportunity to them to submit their case
before deciding the application; that the respondents 1 to 3 have completely
ignored the law of succession applicable to the family members of a
cultivating tenant and the order recording the fourth respondent alone as the
tenant is, therefore, contrary to law and would pray to set aside the same.
8. The fourth respondent would file a counter thereby denying all the
allegations of the petition and further submitting that his father Mounasamy
Naidu was a cultivating tenant to an extent of 9 acres and 5 cents in
S.F.Nos.4,5 and 27; that this respondent has been in continuous possession and
enjoyment of the lands even during the lifetime of his father by rendering
assistance and help by contributing his physical labour and after the demise
of his father, he had been in continuous possession and enjoyment of the lands
for the past 32 years and hence he filed a petition before the concerned
authorities to record his name as cultivating tenant in the record of tenancy
after producing requisite documents to establish his claim that he is a
cultivating tenant such as adangal extracts, kist receipts, house tax receipts
and the Village Administrative Officer has let in evidence before the
Appellate Authority to prove that this respondent alone has been continuously
cultivating the lands in exclusion of other legal representatives of the
deceased erstwhile tenant.
9. This respondent would further submit that the respondents 1 to 3,
after elaborately considering the entire
arguments and materials placed before them, have rightly and concurrently held
that this respondent alone has been cultivating the lands in question in
exclusion of the other legal representatives and this respondent alone is in
actual physical possession and enjoyment of the suit properties; that the
order passed in C.M.A.No.20/1994 against the order in O.S.No.560/1993 has
nothing to do with the present proceeding to record this respondent’s name as
a cultivating
tenant; that the respondents 1 to 3 have no jurisdiction to decide the issue
or to advert to the legal right of succession as to who is the heir of the
original tenant and the respondents 1 to 3 are barred under the very Act to go
into the question of legal status of the petitioner and the same has to be
decided only by the civil court.
10. This respondent would further submit that the only question that
has to be decided and found by the respondents 1 to 3 is as to who is in
actual physical possession and enjoyment of the lands in question as
cultivating tenant and the authorities below have rightly decided that this
respondent alone is the cultivating tenant and that he is entitled to be
recorded as a cultivating tenant; that in fact, this respondent as the eldest
male member of the family has been cultivating the lands in his individual
capacity even during the lifetime of his father and continue to be in
possession as cultivating tenant till date; that the third respondent has
correctly held that the petitioner and the 6th respondent have not taken any
step to file any petition even after a lapse of two years and that they are
neither interested to record themselves as tenants nor they were actually
cultivating the lands.
11. This respondent would further submit that he filed a suit in O.
S.No.132 /1996 for permanent injunction restraining the petitioner and others
from interfering with his peaceful possession and enjoyment of the suit
properties and pending the suit, he also filed I.A.No.4008 /1996 for
ad-interim injunction and the same was granted and extended from time to time
and the same was in force till 27.6.1996 and hence it is clear that this
respondent has established his actual physical possession and enjoyment even
before the civil court; that there is no relevant material at all produced
either before the civil court of before the respondents 1 to 3 by the
petitioner to prove that he is in joint possession of this respondent; that it
is true that the parties have entered into a compromise on 3.11.1994 but the
petitioner has not complied with the conditions stipulated therein and hence
the said deed of compromise was not acted upon; that the petitioner has not
properly or convincingly established his case before the appropriate
authorities notwithstanding the fact that the petitioner was aware of the
proceeding in the trial court for about 2 years from 12.7.1993 to 7.7.1995 and
for 8 months in the appellate Court; that in a petition to record a particular
person’s name as tenant, only the actual physical possession and enjoyment of
a cultivating tenant would be gone into and the
respondents 1 to 3 have rightly exercised their power within their
jurisdiction and they need not go into the question of law of succession in a
petition filed under the Record of Tenancy Act. On such grounds and further
submitting that he has been in actual physical possession and enjoyment of the
lands for the past 32 years as cultivating tenant, this respondent would pray
to dismiss the above writ petition.
12. The 8th respondent would file a counter affidavit on behalf of
the 7th respondent also, she would support the contents of the writ petition
as substantially true and correct. She would further submit that her late
husband Mounsasamy was admittedly recorded tenant of the concerned petition
properly under 5th respondent and the said Mounasamy died on 21.3.1990 leaving
behind him this respondent and three sons and a daughter as his legal
representatives.
13. This respondent would further submit that when her husband was
cultivating the lands in question, they were all helping him in the
cultivation and after his death, all his legal heirs continue to cultivate the
lands providing their physical labour and as such all the legal heirs of her
husband became the tenants of the petition property, entitled to be recorded
as tenants in the approved record of tenancy register, maintained by the first
respondent; that while so, the fourth respondent, with a malafide intention
and without the knowledge of the other legal heirs, has filed a petition in
T.R.6/93 before the first respondent under Section 4(2) of the Tamil Nadu
Agricultural Record of Tenancy Rights Act 1969 for recording him as a tenant
in the place of her deceased husband; that on coming to know the deceitful
intention of the 4th respondent, the petitioner, the 7th respondent and this
respondent have filed a petition before the first respondent praying to
implead them as parties to T.R.6/93 and to hear their objections which was
contested by the fourth respondent stating that after the death of Mounasamy
Naidu, he is solely doing the cultivation and others are not entitled to
object his petition; that the enquiry was adjourned from time to time; that
ultimately, the enquiry was posted to 3.7.1995 on which day, the first
respondent suo motu appears to have adjourned the enquiry to 7.7.1995 on the
ground that he was engaged in other duty; that subsequently, they were neither
informed about the enquiry date nor received any notice from the first
respondent about the enquiry date and it appears that the matter was called on
7.7.1995 and the petition was allowed exparte, without recording any evidence
either oral or documentary; that the first respondent has committed a grave
error in not calling upon the 4th respondent to prove his case by letting in
evidence and it is not only an error apparent on the face of the record but a
manifest illegality
resulting in failure of justice.
14. This respondent would further submit that Section 4(3)(a) of the
Act specifically provides as to how an application filed under section 4 of
the Act has to be disposed of and it contemplates that before passing an
order, the Record Officer shall follow such procedure as may be prescribed and
shall also give a reasonable opportunity to the parties concerned to make them
responsible either orally or in writing; that Rule 11 of the Tamil Nadu
Agricultural Lands Record Tenancy Rights Rules, 1969 specifically prescribed
the procedure to be followed by the authorities; that the Record Officer is
directed to fix a date for hearing and give notice thereof to the applicant
and all other persons having interest in the lands; that the first respondent
has violated the mandatory direction of giving notice to all parties
concerned; that the respondents 2 and 3 have also lost sight of the fact that
the other legal representatives were not given a reasonable opportunity; that
the respondents 1 to 3 have failed to note
that the term ‘Cultivating Tenant’ would include the legal heirs of the
deceased tenant also; that the respondents 1 to 3 have erroneously erred in
casting the burden of proof on the other legal heirs overlooking that it is
the 4th respondent who has approached the authorities to record him as a
tenant of the land and hence he has to prove his case by letting in evidence.
On such arguments, these respondents would pray to allow the above writ
petition.
15. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for both what
comes to be known is that the above writ petition has been filed by the
petitioner praying to call for the records of the third respondent in
R.Dis.29617/96/C2 dated 28.11.1996 thereby confirming the order of the second
respondent dated 22.2.1996 made in A.P.No.27 of 19 95 and that of the first
respondent’s order dated 7.7.1995 made inT. R.No.6/93 and quash the same.
16. The case of the petitioner in short is that the 5th respondent
herein is the owner of an extent of 9.05 acres of land in S.No.4,5 and 27B in
Vadapoothinam village, Udumalpet Taluk; that that said property had been
leased out in favour of the petitioner’s father V. Mounasamy Naidu, who died
on 21.3.1990 leaving behind, his widow, the 8th respondent Kamalam, their sons
viz., petitioner and the respondents 4 to 6 and daughter Sayammal, the 7th
respondent herein as his legal heirs; that the petitioner’s brother 4th
respondent filed T.R.63 /93 under section 4(2) of the Tamil Nadu Agricultural
Record of Tenancy Rights Act, 1969 for recording his name as a tenant in the
place of his deceased father; that the petitioner and the other heirs were not
made parties to the said proceedings; that they filed application before the
first respondent Tahsildar, Udumalpet, stating that the lands were in their
personal cultivation and they should be heard in the said proceeding but on
the contrary the 4th respondent argued that he was only in possession after
the death of his father as the Cultivating tenant and the first respondent
Tahsildar, Udumalpet, without giving effect to the legal rights of the
petitioner and the other legal heirs of the original tenant by his order dated
7.7.1995 recorded the 4th respondent as Cultivating Tenant. Aggrieved, the
petitioner and the 5th respondent preferred an appeal to the second respondent
and the appellate authority stating that the petitioner and others have not
produced any records to establish their claim and that they are not
cultivating the lands in question thereby confirming the order of the first
respondent, aggrieved against which, the petitioner and the 6th respondent
preferred a revision before the 3rd respondent who too committed the same
error as the appellate authority and the initial authority and confirmed the
order of the lower authorities and hence the above writ petition.
17. The strong case put up on the part of the petitioner is that he
himself and his brothers and sister besides the 4th respondent, are the legal
heirs of their deceased father and they all continue to be in possession and
enjoyment of the lands in question and cultivating the same as the cultivating
tenants under the owner stepping into the shoes of their father, but in spite
of themselves being the interested parties they were not either properly heard
or recognised as the tenants and without giving due opportunity, the first
respondent Tahsildar Udumalpet decided the case in favour of the 4th
respondent which came to be upheld by the appellate authority and the
revisional authority as well and therefore on such legal grounds, the
petitioner would come forward to file the above writ petition seeking the
relief extracted supra.
18. On a careful perusal of the materials placed on record and upon
hearing the learned counsel for the respondents barring the respondents 4 to 6
who have not chosen to appear on the date of hearing of the above writ
petition, it could be seen that right from the beginning on initiation of the
case in T.R.No.6/93 by the first respondent, the petitioner and the other
claimants as cultivating tenants have not been properly heard prior to
deciding the matter and since they have got basically a strong case to be put
up, full opportunities must have been afforded to them particularly the
petitioner herein since this being relevant for consideration in accordance
with the principles of natural justice. The authorities should have given
full opportunities for all the parties not only to file their petitions
seeking inclusion of their names in the Record of Tenancy but also hearing
them properly thus deciding the whole matter on merits and in accordance with
law and since the authorities below have failed not only the first respondent
Tahsildar, Udumalpet but also the respondents 2 and 3, who are the Appellate
and Revisional Authorities have decided the matter without observing the legal
principles and therefore since it is a vital case that has to be decided in
law and in a larger spectrum they should have given adequate and reasonable
opportunities to all of the parties connected to the case of Record of Tenancy
regarding the lands in question and since no such opportunities have been
afforded for all the interested parties particularly to the petitioner as it
comes to be seen that on an overall consideration of the entire facts and
circumstances of the case and in law it has become necessary on the part of
this Court to cause its interference not only in setting aside the orders
passed by the respondents 1 to 3 but also further directing the said
respondents particularly the first respondent to hear the matter after giving
them due opportunity for all the interested parties and dispose of the same in
accordance with law and on merits and hence the following order.
In result,
(i) The above writ petition succeeds and it stands allowed;
(ii) The order passed by the first respondent in T.R.No.6/93 dated 7
.7.1995, and confirmed by the appellate authority, the second respondent
herein in A.P.No.27/95 dated 22.2.1996 which was upheld by the revisional
authority, the third respondent herein in R.Dis.29617/96/ C2 dated 28.11.21996
are hereby quashed;
(iii) The matter is remanded to the first respondent, Tahsildar,
Udumalpet for fresh disposal with due opportunities for all the interested
parties including the petitioner to be heard and to decide the matter on
merits and in accordance with law;
(iv) There shall be no order as to costs.
Rao/ks
Index:Yes
Internet: Yes
Copy to:
1)Tenancy Record Officer-cum-Tahsildar,
Udumalpet.
2) Special Dy. Collector,
(Appellate Authority),
Salem.
3. Revisional Authority and Addl. Collector,
Coimbmatore.
