Judgment:
1. Since the subject matter and the parties in both the appeals are same, they are disposed of by this common judgment.
2. Both the Second Appeals are directed respectively against the common judgment and decrees dated 28.08.1989 made in A.S.Nos.8 of 1989 and 17 of 1988 on the file of II Additional District Court, Salem, whereby the common judgment and decrees dated 20.11.1987 made in O.S.Nos.35 of 1985 and 309 of 1976 on the file of Principal Sub Court, Salem, were set aside.
3. The plaintiffs in O.S.No.309 of 1976 on the file of Principal Sub Court, Salem, who are defendants 4, 6 and 7 in O.S.No.35 of 1985 on the file of Principal Sub Court, Salem, are the appellants in both the second appeals and the defendants in O.S.No.309 of 1976, who are the plaintiffs in O.S.No.35 of 1985, are respondents 1 to 3 in both the second appeals. Respondents 4 to 6 are the legal heirs of deceased Varadarajan, the 2nd respondent herein and respondents 7 to 16 are the legal heirs of the deceased Kuttakattu Ramasai Gounder, the 1st respondent herein. For the sake of convenience, the plaintiffs in O.S.No.35 of 1985, viz., Kuttakattu Ramasai Gounder, Varadarajan and Sengodan are referred to as 'plaintiffs' (respondents 1 to 3 herein) and T.Ramasami, Kailasam and Krishnamurthi, defendants 4, 6 and 7 in O.S.No.35 of 1985 are referred to as 'defendants' (appellants herein).
4. The plaintiffs, viz., Kuttakattu Ramasamy Gounder, Varadharajan and Sengodan, the father and sons, filed O.S.No.1112 of 1973 against the defendants numbering seven, before the District Munsif Court, Salem, for a permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit properties. It is the case of the plaintiffs that originally the suit properties belonged to the 1st defendant Abdul Subhan, who seems to have executed a settlement deed in favour of her daughters, defendants 2 and 3. Since defendants 2 and 3 are living in distant places, the plaintiffs are cultivating the suit properties as a lessee for the last 25 years and they are in possession and enjoyment of the suit lands. The original rent fixed for the suit properties was 25 bags of paddy per year and after installing the pumpset in the well in 1949, the annual rent has been increased from 25 bags of paddy to 40 bags of paddy per annum and they used to pay the prevailing market rate for the 40 bags of paddy since they refused to accept in the form of paddy. The plaintiffs are entitled to the benefits of Madras cultivating Tenants Protection Act and also the recent legislation, namely, The Tamil Nadu Cultivating Tenants Right to Purchase Land Owners' Rights Act. In view of the fact that if the cultivating tenants pay their landlord the annual rent for twelve years in twelve yearly instalments or nine years' rent in a lump sum, they are entitled to become the owners of the suit properties. But, to throw the plaintiffs out of the suit properties, defendants 1 to 3 deputed defendants 4 and 5 to barter away the valuable right of the plaintiffs in the village. Since the plaintiffs have been cultivating the lands for a long time, they have got every right to remain in possession of the suit properties unless and until they are evicted by due process of law. Since the plaintiffs have not possessed any other property except the suit properties, they are entitled to purchase the suit properties from the owners of the land. The plaintiffs have grown sugarcane, paddy, groundnut, etc.in the suit properties and they are carrying active cultivation. The defendants made attempts to interfere with their possession, cultivation and enjoyment and hence, the plaintiffs filed the said suit for a permanent injunction.
5. Defendants 1 to 3 filed a written statement, denying the averments in the plaint and stated that the plaintiffs are not in possession and enjoyment of the suit properties as a lessee under the 1st defendant Abdul Subban or under defendants 2 and 3, his daughters and as such, they cannot claim any right under any legislation and there is no relationship of landlord and tenants between them. The plaintiffs, who got an order of ad-interim injunction at the time of filing the suit, trespassed into the suit properties by taking advantage of the interim order. Defendants 2 and 3 have sold the suit properties to defendants 4 and 5 under a registered sale deed dated 05.04.1973 for a valid consideration of Rs.49,999/-. Hence, they prayed for the dismissal of the suit.
6. The 4th defendant Ramasamy filed a written statement, stating that defendants 2 and 3 sold the suit properties for a valid consideration to this defendant and his two brothers under the registered sale deed dated 05.04.1973 and since then, they were in physical possession of the suit properties by their vendors till they were dispossessed by the plaintiffs in the first week of May, 1973, by taking advantage of the ad-interim injunction obtained in their favour. Since then, the plaintiffs are unlawfully squatting on the suit properties. The plaintiffs, being the trespassers, cannot claim protection under the Cultivating Tenants Protection Act. There was no relationship of landlord and tenant between the plaintiffs and defendants 2 and 3 at any time and as such, they cannot claim protection under the Act. Further, the brothers of this defendant (joint purchasers of the property) were not added as parties in the suit and under such circumstances, he prayed for the dismissal of the suit.
7. Though the trial court granted interim injunction in favour of the plaintiffs, subsequently the suit O.S.No.1112 of 1973 was dismissed on 21.10.1975 holding that the plaintiffs are not entitled to the relief of injunction. Hence, the purchasers of the suit properties, viz., T.Ramasamy, Kailasam and Krishnamurthi, from the daughters of one Abdul Subhan filed O.S.No.309 of 1976 before the Sub Court, Salem, for recovery of possession of the suit properties and also for a direction to the plaintiffs in O.S.No.1112 of 1973, viz., Ramasamy Gounder, Varadharajan and Sengodan to pay past mesne profits at the rate of Rs.18,000/- from 14.06.1973 to 13.06.1976 and future mesne profits at the rate of Rs.6,000/- per annum from the date of suit till delivery of possession. According to the defendants (appellants), they purchased the suit properties from one Mushdari Begum and Sarthaj Begum for a valid consideration of Rs.49,999/- under a registered sale deed dated 05.04.1973 and since then, they were in physical possession of the suit properties until they were dispossessed by the plaintiffs in O.S.No.1112 of 1973 (respondents herein) by taking advantage of the ex parte interim injunction in their favour. Since the possession of the defendants is that of a trespasser, they are liable to pay mesne profits for unlawful possession of the suit properties. The defendants are in wrongful possession of the suit properties and therefore, they are bound to deliver possession of the suit properties. Hence the suit.
8. The defendants filed a written statement reiterating the averments made in the plaint in O.S.No.1112 of 1973 and prayed for dismissal of the suit in O.S.No.309 of 1976.
9. When the suit in O.S.No.309 of 1976 was pending, the plaintiffs in O.S.No.1112 of 1973 filed an appeal before the Sub Court, Salem in A.S.No.145 of 1975 against the dismissal of the suit, wherein the judgment and decree passed by the trial court were set aside and the suit was remitted to the trial court for fresh disposal.
10. After remand, the suit in O.S.No.1112 of 1973 was re-numbered as O.S.No.35 of 1985 and was tried along with O.S.No.309 of 1976 by the Sub Court, Salem. On the basis of the above said pleadings, the trial court framed necessary issues and on the side of the plaintiffs, P.Ws.1 to 8 were examined and Exs.A-1 to A-37 were marked and on the side of the defendants, D.Ws.1 to 6 were examined and Exs.B-1 to B-22 were marked. The trial court, after considering the entire evidence on record, both oral and documentary, dismissed O.S.No.35 of 1985 filed for injunction and decreed the suit O.S.No.309 of 1976 for delivery of possession. Aggrieved over the same, the plaintiffs filed A.S.No.17 of 1988 challenging the finding rendered in O.S.No.309 of 1976 and A.S.No.8 of 1989 questioning the dismissal of the suit in O.S.No.35 of 1985 before the District Court, Salem and the II Additional District Court, Salem, by its common judgment, allowed both appeals and set aside the common judgment and decrees passed by the trial in both the suits. Being aggrieved, the defendants preferred both the second appeals. During pendency of the appeals, plaintiffs 1 and 2 (respondents 1 and 2 herein) died and their legal representatives were brought on record as respondents 4 to 16.
11. At the time of admission of the second appeals, this Court has framed the following substantial questions of law for consideration:
1. Whether the lower appellate Court was right in the view it took that the jurisdiction of the Civil Court is not ousted ?
2. Whether the lower appellate court was right in granting an injunction in favour of the plaintiffs in O.S.No.35 of 1985 ?
12. Before going into the submissions made by the learned counsel appearing on either side, it could be appropriate to narrate the proceedings which took place between the parties before the revenue authorities with regard to the claim of the plaintiffs as cultivating tenant. When the suit O.S.No.1112 of 1973 filed by the defendants in O.S.No.309 of 1976 was pending, the plaintiffs filed a petition before the Tahsildar/Record Officer for inclusion of their names as cultivating tenants in respect of the suit properties; but the Record Officer, by his Proceedings dated 25.06.1978 recorded the first plaintiff's name in the record of tenancy right and rejected the names of plaintiffs 2 and 3 as cultivating tenants. Aggrieved over the inclusion of the 1st plaintiff's name, the defendants filed an appeal before the Revenue Divisional Officer, Salem and the Revenue Divisional Officer, by his proceedings dated 28.10.1980, allowed the appeal rejecting the claim of the plaintiffs as cultivating tenants. Questioning the said proceedings, the plaintiffs filed a revision petition before the Additional Collector, Salem, in the year 1981. The Revisional Authority-cum-Additional Collector, by his Proceedings dated 30.03.1982, set aside the order of the Revenue Divisional Officer and remanded the matter to the Revenue Divisional Officer, who, by his proceedings, dated 10.10.1984, again dismissed the appeal filed by the plaintiffs and the revision petition filed against the said proceedings was also dismissed on 06.04.1987 confirming the order dated 10.10.1984.
13. Challenging the proceedings dated 06.04.1987, the plaintiffs filed a writ petition before this Court in W.P.No.5588 of 1987 and this Court has dismissed the writ petition, confirming the order of the Revenue Divisional Officer, holding that the plaintiffs are not the cultivating tenants. Aggrieved over the same, they filed W.A.No.1842 of 2001 and a Division Bench of this Court, by its judgment dated 29.09.2008, set aside the order of the learned single Judge and disposed of the writ appeal with the following observation: 6. ..... In this background, we are of the opinion that when the case was not argued on merits and the suits between the parties were pending and that the authorities also observed that for entitlement and enjoyment of the disputed property the parties should move before a Civil Court of competent jurisdiction, it was not desirable for the learned single Judge to give any finding with regard to the claim and counter claim of the parties. In such circumstances, we set aside the order dated 21st January, 1997 passed by the learned single Judge and also dismiss the writ petition as was preferred by the appellants. The parties are given liberty to contest the second appeals on merit.
14. With the above background, the learned Senior Counsel appearing on behalf of the defendants (appellants) submitted that the claim of the plaintiffs as cultivating tenant was rejected by the Revenue Divisional Officer and the same was confirmed in the writ petition; but, in the writ appeal, the order passed by the learned single Judge in the writ petition was set aside by giving liberty to the parties to agitate the issue in the second appeal. Therefore, as on date, the order passed by the revisional authorities rejecting the claim of the plaintiffs as cultivating tenants holds good. The plaintiffs have not filed Special Leave Petition before the Hon'ble Apex Court as against the judgment delivered by the Division Bench in the writ appeal. Under such circumstances, it has to be construed that the issue with regard to the cultivating tenant reached the finality in view of the orders passed by the revenue authorities. Therefore, on this ground alone, the suit filed by the plaintiffs for permanent injunction has to be dismissed and consequently, by allowing the second appeals, a direction should be given to the plaintiffs to deliver possession of the suit properties.
15. The learned senior counsel further submitted that only the revisional authorities are having jurisdiction to include the name of a tenant in the Record of Tenancy Right and the Civil Court has no jurisdiction to deal with the aspect of cultivating tenant. The learned counsel further submitted that in the year 1963, the 1st plaintiff, the father of plaintiffs 2 and 3, surrendered possession of the lands to the original owner Abdul Subhan and thereafter, the properties were only in the possession of the Abdul Subhan, who had settled the properties in favour of his daughters, who, in turn, sold the same to the defendants (appellants herein). Since possession was surrendered as early as 1963, the question of claiming the status of 'cultivating tenants' does not arise in this case. Thus, the learned senior counsel prayed for setting aside the common judgment and decrees of the lower appellate court and he relied on the judgments reported in PREMA .vs. DEVA RAO ((2011) 4 SCC 303) and BALASUBRAMANIAN, S. .vs. SHAMSU THALREEZ (98 L.W.536) in support of his submissions.
16. Resisting the said submissions, the learned counsel for the 6th respondent submitted that while the Division Bench of this Court disposing the writ appeal filed by the plaintiffs, had given a liberty to agitate the issue with regard to the cultivating tenants in the present second appeals. Therefore, in view of the observation made by the Division Bench, this Court has to examine the correctness of the finding of the lower appellate court that the plaintiffs are in possession of the properties as the tenants. Therefore, it is incorrect to state that the issue with regard to the cultivating tenant reached the finality. Further, the learned counsel submitted that when the plaintiffs are asserting their right and making a claim that they are the cultivating tenants, the civil court can dispose such claim by adjudicating the status of the plaintiffs. The lower appellate court, by dealing with the entire evidence, came to the conclusion that they are the cultivating tenants and decreed the suit and no infirmity could be found in the said judgment. Further, it is the specific case of the defendants that the 1st defendant had surrendered possession of the suit properties in 1963; but absolutely, no evidence was produced to prove the same and in fact, the plaintiffs have filed several documents to show that they are in continuous possession and enjoyment of the suit properties. Therefore, the second appeals are liable to be dismissed.
17. This court has considered the submissions made by the learned counsel for both sides and perused the entire materials on record.
18. In view of the submissions made by the parties, the questions that arise for consideration are,
(1) Whether the jurisdiction of the Civil Court is ousted in view of the decisions that had been taken by the revenue authorities ?
(2) Whether can it be said that the order made by the revenue authorities had reached finality or in view of the liberty granted by this Court in W.A.No.1842 of 2001, the issue with regard to the status of 'cultivating tenants' claimed by the plaintiffs can be decided in the second appeal?
(3) Whether the lower appellate court is correct in holding that the plaintiffs are tenant in respect of suit lands ?
19. It is the submission of the learned senior counsel for the defendants that the right of the plaintiffs with regard to the status of 'cultivating tenant' had reached finality in view of the orders passed by the revenue authorities. Hence, the same issue cannot be agitated in the civil court. But, the lower appellate court, without looking into this aspect has decided the issue in respect of the claim made by the plaintiffs with regard to the status of 'cultivating tenant'. In support of the same, the learned senior counsel for the defendants has relied on the decision reported in (2011)4 SCC 303 and 98 L.W.536 (supra). The dictum laid down in the said judgments would show that when the decision by the Authority constituted under the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act directing to register a person as a cultivating tenant, the same cannot be re-agitated subsequently in a civil suit. But, in the instant case, when the order of revisional authority was questioned by the plaintiffs by filing a writ petition, the same was dismissed by a single Judge of this Court; but in the writ appeal, liberty was given to the parties to agitate the said issue in the second appeal. It is to be noted that against the same, neither the plaintiffs nor the defendants filed a special leave petition.
20. In view of the liberty granted by the Division Bench in the writ appeal, we have to see, whether the finding of the lower appellate court that the plaintiffs are the tenants in respect of the suit properties is correct when the revisional authority has rejected the claim of the plaintiffs. For which, the principles laid down in the following decisions cited on the side of the plaintiffs would give the fitting answer. In NATESA NAINAR .vs. SRI KARIKUDINATHASWAMY DEVASTHANAM (1985 (I) M.L.J.175), this Court has held as follows: 5. ... In essence, in O.S.No.534 of 1970, the appellant was asserting rights as a cultivating tenant on the footing that he was a lessee of the disputed property belonging to the respondent and Exhibit A-1, the entry in the Record of Tenancy Rights Register, prodcuced in this case merely lent evidentiary support to that claim. It was necessary for the Court in disposing of such a claim to adjudicate upon the status of the appellant as well as his claim to rights as a cultivating tenant and precisely this was done by the lower appellate court....
21. In V.S.ALWAR IYENGAR .vs. TAHSILDAR AND RECORD OFFICER, SRIVILLIPUTHUR (92 L.W.345), it has been held as follows:
There will not be any room for conflict if we construe the bar of jurisdiction imposed on Civil Courts by S.16A of the Act in its proper perspective. In matters like preparation of record of tenancy rights, inclusion of the relevant items of land as well as the names of interested persons in the approved record of tenancy rights and the modification of entries in the approved record of tenancy rights, the machinery provided under the Act will have exclusive jurisdiction and to that extent, the jurisdiction of the Civil Courts has been taken away by means of the express interdiction contained in S.16A, as held in Muniyandi v. Rajangam Iyer (1976-1-M.L.J.344). On the other hand, for obtaining reliefs of injunction, etc. resort can be had only to the Civil Court and the powers of the Civil Court to entertain a suit for injunction and grant orders of injunction, etc. remain untouched by Act 10 of 1969. If in the process of finding out whether a party is entitled to an order of injunction in his favour or not, it becomes incidentally relevant to examine the nature of his possession, the Civil Court can evaluate the status of that person. But, that finding can only be confined to granting or not granting the relief of injunction sought for and it cannot override S.16A of the Act or take away the jurisdiction of the officers named in the Act to deal with applications directly arising under the provisions of Act 10 of 1969.
22. In KRISHNAMOORTHY THONDAMAN .vs. RAMANATHAN (1982-II M.L.J.57), this Court has held that both the Civil Court as well as the statutory authorities could go into the question as to whether a person is a cultivating tenant and if it is determined that he was a cultivating tenant, then the civil court will lose its jurisdiction and the matter will have to be considered only by the statutory authorities.
23. A learned single Judge of this Court in ARUMUGAM .vs. SRI DHARMAPURAM MUTT AT DHARMAPURAM (1996 (I) CTC 90), has held as follows:
5. ..... ....it is futile to contend that the appellants can be considered to be a tenant at all leave alone the claim of being cultivating tenant in accordance with either the provisions of the Record of Tenancy Act or the provisions of the Tamil Nadu Act 47 of 1961. In view of the above findings of mine, the plea or objection raised to the judgment and decree of the lower appellate court based on Section 16-A of the Act also pales into insignificance. Even that apart, the embargo or ouster of jurisdiction under Section 16-A of the Act has been held to be not absolute in terms under all circumstances. The very Full Bench judgment of this Court in Periathambi Goundan .vs. District Revenue Office (FB) (AIR 1980 Madras 180) relied upon for the appellant, while considering the ambit, amplitude and extent of interdict imposed by the said section has in categorical terms declared the position that the controversy as to whether a particular piece of land has been let out for cultivation by a tenant or not being one constituting the jurisdictional issue cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act alone since to hold so would amount to permitting statutory authorities to assume jurisdiction erroneously. As a matter of fact, in some of the subsequent decisions of this Court rendered, taking into account even the ratio of the above Full Bench judgment, it was held that the authorities under the Act cannot be said to have exclusive jurisdiction to decide the issue as to whether the lands have been let under a tenancy agreement and the Civil Court is not totally precluded from dealing with a claim of a landlord in any and every or all circumstances. In the light of the very case pleaded, in my view, the question of relationship of landlord and tenant cannot be said to subsist and the lands cannot be said to have been held by the first defendant or defendants under a tenancy agreement express or implied. In view of the above the question of applying the provisions contained in Section 16-A of the Act to the case on hand does not arise at all.
24. From a reading of the above judgments, it is clear that the determination of the question as to whether the lands have been let out to the tenant, so that he got protection of the provisions of the Act, is not within the exclusive jurisdiction of the statutory authorities alone and jurisdiction of the Civil Court to determine such a matter has not been ousted. In other words, both the Civil Court as well as the statutory authorities could go into the question as to whether a person is a cultivating tenant. In the present case, the plaintiffs preferred an application for inclusion of their names as tenants and they failed before the Revenue Divisional Officer and the Additional Collector and under such circumstances, the Civil Court has got jurisdiction to find out under what capacity the plaintiffs are continuing in the suit land, particularly when they are asserting their rights as 'cultivating tenants'. In the instant case, the lower appellate court, by deeply analysing the entire documents had come to the conclusion that the plaintiffs are in possession of the suit properties only as a cultivating tenant by growing crops. Further, as submitted by the learned counsel for the plaintiffs, absolutely no documentary evidence was produced on the side of the defendants that in the year 1963, the suit lands were surrendered by the 1st plaintiff to Abdul Subhan. Under such circumstances, this Court has no hesitation in upholding the finding arrived at by the lower appellate court that the plaintiffs are the tenants in respect of the suit properties and the appeals have no merits and are bound to fail and the substantial questions of law are answered in favour of the plaintiffs (respondents). In fine, both the second appeals fail and are dismissed. No costs.