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P. Natarajan v/s A/M Kasturi Renga Perumal Temple Thiruvilaiyattam, represented by its Trustee Muthusamy, Eechankudi, Nagapattinam District

    S.A.No.939 of 2001 & C.M.P.No.477 of 2012

    Decided On, 20 July 2012

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH

    For the Appellant: S. Ayyathurai, Advocate. For the Respondent: S. Sounther, Advocate.



Judgment Text

(Prayer: Appeal filed under Section 100 of C.P.C. against the judgment and decree of the Principal Sub Court, Mayiladuthurai made in A.S.No.79 of 2000 dated 24.10.2000 confirming the judgment and decree of the Additional District Munsif Court, Mayiladuthurai made in O.S.No.951 of 1995 dated 09.06.2000.)

1. This appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.79 of 2000 dated 24.10.2000 in confirming the judgment and decree passed by the trial court made in O.S.No.951 of 1995 dated 09.06.2000 in dismissing the suit.

2. The appellant herein was the plaintiff and the respondent/temple was the defendant before the trial court.

3. For convenience, the rank of parties before the trial court are being maintained in this judgment.

4. The case of the plaintiff as stated in the plaint would be as follows:-

The suit has been filed by the plaintiff seeking permanent injunction from interfering with the possession and enjoyment of the suit property of the plaintiff without taking lawful action against the plaintiff. The plaintiff has been doing cultivation in the suit land on lease, for 15 years. He has agreed to give 3.6.0 Kalam per 1 Ma during single crop cultivation and 5.6.0 Kalam during double crop cultivation and he has been cultivating and giving the same in the respective Fasli, without any due.

4(2) The suit land is situated at a distance of 2 Km from the Main Road in Thiruvilliyattam Village, where the plaintiff has been residing. In the year 1989, he cultivated crops in the suit-land and appointed one Subramanian, S/o.Ranganathan of the aforesaid village, as security, to protect the land from grazing of cattles and entered into an agreement agreeing to pay the salary of Rs.50/- per 1 Ma, but, the said Subramanian caused interference stating that he had right over the property and that the plaintiff should not claim the produce of the crop. Therefore, the plaintiff filed a suit in O.S.No.201/90, for injunction and obtained an order of interim injunction. He filed a petition to appoint a Commissioner, to assess the actual produce in the suit property. Advocate Rajasundaram was appointed as Commissioner and he assessed the harvest of the cultivation made by the plaintiff in the suit land, and deducting the expenditure, he remitted the balance amount in the court. The plaintiff has herewith enclosed the plaint filed on behalf of Subramaniam, the defendant appeared, filed a petition, and then the said case was transferred to the District Munsif Court, Nannilam and numbered as O.S.No.124/1992. Without, the appearance of Subramaniam, the defendant, the judgment was passed on 25.08.1995. The copy of the aforesaid case register has also been herewith filed.

4(3) At present, the defendant, in order to sell the suit property to some other person, coerced the plaintiff to relinquish his tenancy rights. The plaintiff did not agree to that. The plaintiff has cultivated 1009 variety paddy, and the crop has been 50 days old. The bore-shed belonging to the plaintiff is situated at the northern side of the aforesaid suit property. At present, since the plaintiff refuses to relinquish his tenancy rights, as requested by the defendant, the defendant with his muscle power and financial power, attempts to evict the plaintiff from the suit property forcibly. The defendant does not have any right or claim to do so. On 06.11.1995, when the plaintiff went with his men to drain the excess water from the suit land, the defendant came with his men and hindered the agricultural work of the plaintiff. The plaintiff, after taking lot of efforts, prevented the transgressive act of the defendant. At present, the defendant has been telling that, he would, however, with his muscle power, prevent the cultivation of the plaintiff in the suit land. Therefore, the plaintiff was forced to file this suit seeking the relief of the order of injunction.

4(4) The cause of action in this case arose on 06.11.1995. On that day, when the defendant interfered with the possession and enjoyment of the plaintiff, the cause of action arose at the Thiruvillayattam Village, in which the suit property is situated, within the jurisdiction of this Court.

4(5) Therefore, this Court may be pleased to pass an order in favour of the plaintiff against the defendant by granting a) an order of interim injunction, restraining the defendant, his men, or his agents from interfering with the possession and enjoyment of the plaintiff in the suit property, and from causing any hindrance to the plaintiff except by taking any legal action against the plaintiff and b) to direct the defendants to pay the costs of this case to the plaintiff.

5. The objections raised by the defendant in the written statement would be thus:-

The suit is admittedly belonging to the defendant temple and it has been under pannai cultivation only and not in the cultivation of any tenant much less the plaintiff and any time. The plaintiff has been cultivating the suit land as a tenant for the past 15 years paying a rent to the defendant temple is incorrect. The plaintiff has paid the rent to the father of the defendant till his death and thereafter to the defendant is false. The defendant do not know the plaintiff at all and he never paid any rent. The averments in paragraph 4 of the plaint are also false and distorted. The said Subramanian is an illiterate agricultural labourer from whom the plaintiff and his brother obtained signatures and engaged some advocate and played a drama as if the plaintiff had raised crops. No commissioner came and harvested the crops in the suit land at any time as the lands has been in pannai cultivation of the defendant. There was really a fraud played on the court by the plaintiff and his counsel. The entire proceedings in the suit referred to above were all bogus and fraudulent. Now it is cleverly used and designed and thereby to get at the lands under the false claim of oral tenancy. The plaintiff has cultivated and raised paddy in the suit land. As a matter of fact the defendant's son Ayyappan has cultivated and raised the paddy crops on the suit lands. It is also wrong to state that as if the defendant wanted the plaintiff to give up his tenancy right in the suit land and the plaintiff refused his request. There was no need or occasion to ask the plaintiff as such when the suit land has been under pannai cultivation of the defendant. The plaintiff has fraudulently obtained an exparte order of interim injunction by misrepresentation and suppression of real facts and is making same attempt to interfere with the possession and enjoyment of the defendant. There are no sufficient reasons or grounds for an order of interim injunction. There are no cause of action for the suit. The defendant therefore, prays that this Court may be pleased to dismiss the suit with costs.

6. On the aforesaid pleadings, the trial court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the trial court had come to the conclusion of dismissing the claim of the plaintiff without costs. Aggrieved by the decision reached by the trial court, the plaintiff filed an appeal before the 1st appellate court challenging the judgment and decree passed by the trial court in A.S.No.79 of 2000 on the file of the 1st appellate court. After hearing both sides, 1st appellate court had dismissed the appeal and thereby, confirmed the judgment and decree passed by the trial court.

7. Having aggrieved by the judgment and decree passed by the 1st appellate court, the plaintiff has preferred the present second appeal before this Court.

8. On admission of the second appeal, this Court had formulated the following substantial questions of law for the purpose of consideration in the appeal.

"1. Whether or not there can be oral lease in a property ?

2. Whether the Courts below act on the oral evidence of Power of Attorney holder when his oral evidence is not supported by any other oral evidence or documentary evidence ?"

9. The appellant/plaintiff has filed an application in CMP No.477 of 2012 for reception of additional evidence in respect of four documents described in the petition.

10. The reasons stated in the petition would be as follows:-

The suit property belongs to the respondent/defendant temple and the petitioner has been cultivating the suit property as a tenant on the basis of the oral lease granted by the father of the present trustee of the temple. Since the family of the present trustee Mr.Muthusamy is a powerful landlord family owning huge acres of land, the petitioner did not insist upon any written document in support of the lease of the land granted to the petitioner. The respondent/defendant in order to sell the suit property to outsiders, said that the petitioner should vacate and hand over the possession of the suit property. Since agriculture is the only source of the petitioner's family livelihood, the petitioner, refused to vacate and hand over the suit property. Therefore, the respondent/defendant started threatening the petitioner with direconsequences using money and man power instead of taking to legal course, since he could not succeed legally. In these circumstances, the petitioner/appellant filed the suit for permanent injunction, which was dismissed by the trial court and the same was confirmed by the 1st appellate court.

11. The chitta and adangal given by the Village Administrative Officer and the complaints made against the said Muthusamy by the petitioner's brother were given to his counsel before the court below. Unfortunately the counsel misplaced the same and did not file them before the courts below. Failure to file the documents before the courts below was neither wilful nor wanton but due to the fact that they were lost in the office of the petitioner's counsel before the courts below. The petitioner is still in possession and enjoyment of the suit property as tenant. If the documents being filed in the form of Additional typedset of papers are not received, the petitioner will be put to great loss and sufferings. On the other hand no prejudice will be caused to the respondent as they can very well contest the case on merits. In the above circumstances, it is therefore prayed that this court may be pleased to order the reception of additional evidence in respect of four documents described in the petition.

12. No counter has been filed by the respondent.

13. On the aforesaid application, the following points has been framed for consideration.

"1. Whether the four documents produced along with the petition have to be received as additional evidence ?"

14. Heard Mr.S.Ayyathurai learned counsel for the appellant/plaintiff and Mr.S.Sounther learned counsel for the respondent/defendant.

15. The learned counsel for the appellant/plaintiff would submit in his argument that the plaintiff has filed the suit before the trial court for permanent injunction from interfering with the possession and enjoyment of the suit property of the plaintiff without taking lawful action against the plaintiff. He would submit in his argument that the courts below have found that the plaintiff was in possession and enjoyment of the suit property but they disapproved the possession of the plaintiff as not lawful and had rejected the grant of permanent injunction. He would also submit that the respondent was found not produced any evidence to prove the possession of the suit property by him and yet the suit filed by the plaintiff was dismissed. He would also submit that the said findings reached by the courts below are against law. He would also submit that the plaintiff entered into an oral lease and in pursuance of the said oral lease, he is in possession and therefore, it cannot be considered that the plaintiff was in an unlawful possession of the suit property. He would also submit that the plaintiff even though considered to be a trespasser to the suit property, since found to be in possession ought to have been granted permanent injunction against the defendant except under due process of law. It is a settled law that a trespasser can also protect his possession until he is evicted through the process of Court. He would further submit in his argument that such a lesser relief could be granted so as to protect the possession of the plaintiff and the courts below have lost sight of the principle and had ordered dismissal of the suit.

16. He would also submit in his argument that the present application under Order 41 Rule 27 CPC has been filed to receive chitta and adangal extract of the suit property for the fasli year 1400; complaints given by the brother of the plaintiff to the Sub-Inspector of Police, Perambur and to the President of Panchayat Board, Thiruvilaiyattam and the certificate issued by the President regarding the possession of the suit property held by the plaintiff as a lessee and they would go to show that the plaintiff's claim is true and the plaintiff is in possession of the suit property and those documents may be ordered to be received and the judgments and decrees passed by the courts below may be set aside and the suit may be decreed and thus, the second appeal may be allowed.

17. The learned counsel for the respondent would submit in his argument that the 1st appellate court had concurrently come to a conclusion that the possession of the plaintiff was not lawful and no tenancy right has been proved by clinching evidence and therefore, the possession of the plaintiff in respect of the suit property is illegal and the plaintiff is a trespasser. He would also submit that the oral tenancy even if permissible, the claim of the plaintiff that he was a cultivating tenant during cultivation of the said property and was paying 3.60.0 kalam for one bogum (Ma) and 5.00 kalam in case he is doing double bogum, was not established through any documentary evidence like issue of receipt or any other lease chit or through producing the copy of register as maintained by authorised officer. He would also submit that the plaintiff was not in possession of the suit property and it could be seen from an order of the Court made in O.S.No.201 of 1990 filed against one Subramaniam, who was claiming to be a cultivating tenant, but actually he was appointed for preventing the cattle from entering into the suit property. He would also submit that a Commissioner was also appointed in the said suit and he inspected the suit property and harvested crops and deposited the proceeds into Court and if really, the plaintiff was in possession, he would have intervened in the said proceedings. He would also submit that the plaintiff had falsely claimed possession and enjoyment of the of the suit property since his request for leasing the property to him was rejected by the defendant. He would also submit in his argument that the Court below did not find that the plaintiff was in possession and therefore, the argument advanced on the side of the plaintiff that the plaintiff cannot be disturbed with the possession except under due process of law, cannot be sustained.

18. He would further submit that the documents sought to be produced were mere copies and they were not signed by the competent authorities. The chitta and adangal produced as document No.1 ought to have been certified by the Tahsildar and the Village Administrative Officer is neither entitle to grant a copy nor give a certificate of possession in respect of any properties. Even as per the adangal produced in Document No.1, the defendants name alone is mentioned as person in possession. The copies of complaints stated to have been given by the brother of the plaintiff were of no use, since those documents were purely after the filing of the suit and the Document No.4 sought to be produced as additional evidence is the certificate given by the Panchayat Board President, who is incompetent to issue certificate regarding cultivation. The said document is also dated in the year 2001, which is purely after the filing of the suit. He would, therefore, submit that those documents would neither help the Court nor enable the Court to come to a correct conclusion in passing a correct judgment and therefore, those documents are summarily to be rejected. Therefore, he would request the Court that the questions of law framed cannot be decided in favour of the plaintiff since the case of the plaintiff was not at all proved by the plaintiff either through oral evidence or through the documentary evidence, which are necessary to prove the case of the plaintiff and therefore, the second appeal preferred by the appellant/plaintiff has to be dismissed and the concurrent judgment rendered by the courts below may be confirmed.

19. I have given anxious thoughts to the arguments advanced on either side.

20. The suit has been filed by the plaintiff seeking permanent injunction against the defendant who is the owner of the suit property. The claim of the plaintiff was that he was a tenant under the defendant and cultivating the suit property on an oral lease and he has also exerted physical exercise to cultivate the said land and therefore, his possession ought to have been protected by way of permanent injunction. In support of his case, no documentary evidence has been produced by the plaintiff but he adduced oral evidence to the effect that he is cultivating the suit property on payment of 3.60.0 kalam, if one bogum is cultivated and 5.00 kalam, if two bogums are cultivated by the plaintiff. Admittedly, no receipt has been produced by the plaintiff. The defendant is the temple represented by its Trustee. The temples are supposed to possess Property Register and there are expected to maintain their records for leasing out the properties as well as issue of receipts for the lease amount received by them. But the plaintiff did not produce any such receipts for the lease amount paid by the him.

21. Per contra, it has been argued by the learned counsel for the defendant that the suit property was in the pannai cultivation of the temple and the plaintiff cannot claim to be in possession of the suit lands. It was claimed by the defendant that the suit as filed by the plaintiff was nothing but a collusive act and no Commissioner has visited the suit property for assessing the harvested crops.

22. In respect of the contentions of both parties, the trial court had considered the evidence of PWs and it has decided that the plaintiff had trespassed in the suit property. The trial court had reasoned that if the possession of the plaintiff was on the basis of oral lease, that he would have recorded himself as cultivating tenant before the competent authority and would produce the said record for proof. The adangal extract was not found to have been produced by the plaintiff before the trial court. However, it has been produced now as document No.1, that too, without any proper certification from the Tahsildar, who is empowered to issue certificate. Even in the said document, the land is found to have been in possession of the temple/defendant. If really, the plaintiff was a tenant, it would have been either mentioned as cultivation through tenancy or any other indication to show that it was in possession of the cultivating tenant. It was not found to be so. The 1st appellate court, while discussing the case on appeal, found that in the documents produced in Exs.A1 and A2, the proceedings in O.S.No.201 of 1990 and the Commissioner's report in Ex.C1. One Subramaniam has been shown as the plaintiff and the defendant was not included as party and therefore, the first appellate court had come to the conclusion that the documents would have been created for the purpose of the case. The 1st appellate court had also deprecated the claim of the plaintiff that no documentary evidence has been produced to show that he was a tenant or a cultivating tenant as claimed by him. The 1st appellate court has thus, found that the plaintiff was in unlawful possession of the suit property. It has also come to the conclusion that the plaintiff did not approach the Court with clean hands by disclosing all the facts to get an order of injunction.

23. As rightly discussed by the Courts below, the plaintiff did not approach the Court with documentary evidence to show that he was a tenant and did not produce any other documents to show that he was on oral lease with the defendant, as pleaded by him

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. More over, the adangal, produced by the plaintiff is not certified by the proper officer. In the chitta extract certified by the Village Administrative Officer, the plaintiff was said to be in possession. But it cannot be an admissible evidence, since ultimate authority to issue such extract is the Tahsildar concerned. In the said circumstances, the document No.1 sought to be produced as additional evidence would not reflect any truth and be admissible in evidence. The remaining documents 2 to 4 are long after the filing of the suit and therefore, they are not permissible or admissible in evidence. In the said circumstance, those documents cannot be received as additional evidence since they would not in any way enable the Court to pronounce the correct and just judgment. 24. The documents produced in Exs.A1 and A2 and Ex.C1 would not be helpful for the Court to decide the oral lease in between the plaintiff and the defendants, since the defendant was not a party to the said proceedings. The plea put forth by the plaintiff that he was a cultivating tenant ought to have been established by the record of tenancy in which the plaintiff's name should be entered and also in the Property Register maintained by the temple/defendant. But no such documents have been produced. No evidence is available to the effect that he would apply for such recording of tenancy as cultivating tenant. In the said circumstances, the plea put forth by the plaintiff that he was on oral lease, cannot be considered as substantiated. 25. In view of the above discussions, I find that the plaintiff has not established any case to decide the questions of law in his favour. Therefore, the findings reached by the Court below are perfectly alright and the concurrent judgment and decree passed by the 1st appellate court cannot be disturbed and thus, the second appeal preferred by the appellant/plaintiff is liable to be dismissed. 26. In fine, I am of the considered view that the second appeal preferred by the appellant/plaintiff is liable to be dismissed. Accordingly, the second appeal is dismissed and the concurrent judgment rendered by the courts below are hereby confirmed. No order as to costs in this second appeal. Consequently connected C.M.P.No.477 of 2012 is dismissed.
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