ORDER
Govardhan, J.
1. The averments of the plaint are as follows: The suit property belong to the plaintiffs. The 2nd plaintiff has been personally cultivating the lands. It has been recorded in his name by the Tenancy Record Officer also. The defendant was engaged by the 2nd plaintiff for irrigating the lands. His services were terminated since he did not do the work properly. He filed a suit in O.S. No. 1152 of 1974 on the file of District Munsif s Court, Tiruchirapalli for permanent injunction restraining the plaintiffs from interfering with his possession. In the said suit he claims to be a cultivating tenant. Interim injunction was granted in his favour. Taking advantage of the same, he has trespassed into the suit property in the 2nd week of August, 1974 and harvested the crops raised by the plaintiffs. The defendant has no right or interest in the suit property. He is also liable to pay the income he has realised by selling the paddy raised by the plaintiffs. Hence, the suit for delivery possession and directing the defendant to pay a sum of Rs. 4,000 towards past profits.
2. The defendant in his written statement contends as follows: The allegation that the suit property has been recorded as the personal cultivation of the 2nd plaintiff is not true. There was no enquiry under the Record of Tenancy Rights Act. The defendant has entered into an agreement of lease with the 2nd plaintiff about 7 years ago on a cash rent of Rs. 4,200 per annum. He has been in possession of the property and raising crops of his own choice. He has raised plantain crops in one acre of the land on the eastern side and in the remaining portion, he has raised paddy crops. The plantain crops have been destroyed after the yield. The Government has recognised the defendant as a cultivating tenant and has given the identification card for purchasing fertilisers. The defendant has been purchasing manure for cultivating the suit property by raising loan in Mannachanallur Village Co-operative Loan Society. As a tenant he has paid kists also for the suit property. The allegation that he was not a tenant and he has trespassed into the suit property, taking advantage of the injunction granted in his favour is not true. The defendant is in possession both before and after filing of the suit in Q.S.No. 1152 of 1974 on the file of District Munsif's Court, Tiruchirapalli. He had to file a suit since the 2nd plaintiff wanted the defendant to deliver possession of the property to the 1st plaintiff in pursuance of the partition that is to take place between them. The defendant has deposited Rs. 2,100 in court in O.S. No. 1152 of 1974 towards Khar crops and Samba crop. He has paid Rs. 2,100 to the plaintiffs in this suit. The entire rent due for Rs. 1,974.75 has been paid. There is no arrears. Against the order of injunction granted in favour of the defendant, the plaintiffs preferred appeal in C.M.A. No. 155 of 1974 on the file of District Court, Tiruchirapalli. It was dismissed confirming the order of the lower court. The defendant has paid the lease amount to the 2nd plaintiff as well as his daughter on some occasions and has obtained their acknowledgments in the katchayat book. The defendant is in possession and enjoyment of the property as a cultivating tenant and he cannot be evicted from the same. He is also not liable to pay any profits as claimed by the plaintiffs.
3. The suit filed by the defendant in O.S. No. 1152 of 1974 on the file of District Munsif's Court, Tiruchirapalli has been transferred to the file of Sub Court, Tiruchirapalli to be tried along with this suit and numbered as O.S. No. 392 of 1975.
4. The averments of the plaint are as follows: The defendants 1 and 2 are cousin brothers. The suit property is their joint family property. It was under the management and supervision of the 1st defendant. The plaintiff had taken the suit property on lease from the 1st defendant six years ago on a cash rent of Rs. 4,200 per annum. He was given option to raise crops of his choice. He was duly put in possession of the suit property as a cultivating tenant by the 1st defendant. The plaintiff has been raising crops of his choice since then. He had raised plantain crops in one acre in the property on the eastern side and it has now been destroyed and in the remaining extent paddy has been raised by the plaintiff. Identification card for distribution of manure and fertilisers has been issued by the Panchay at Union in favour of the plaintiff. The plaintiff has been raising loans in Manhachanallur Village Co-operative Loan Society for purchasing manure and has been repaying the same. As a tenant the plaintiff has also paid kists for the property. Except receiving the rent the 1st defendant or anybody else much less the 2nd defendant has no right to interfere with the possession of the plaintiff. The first defendant was the Village Munsif of Mannachanallur village. He has since been removed from service. He has demanded the plaintiff to surrender possession in order to lease out the property for higher rent. 'The plaintiff did not agree. The 2nd defendant and his followers are attempting to forcibly enter into the property and disturb the possession of the plaintiff. There is a rumour in the village that a partition arrangement is about to take place between the defendants in which the 2nd defendant will be allotted the suit property towards his share. The 2nd defendant is therefore, threatening to interfere with the possession of the suit property by the plaintiff. The defendants cannot take the law into their own hands and forcibly dispossess the plaintiff from the property. Hence, the suit for permanent injunction restraining the defendants and their men from interfering with his possession and enjoyment.
5. The 1st defendant in his written statement contends as follows:
The allegation that the suit property was taken on lease by the plaintiff from the 1st defendant six years ago on a cash rent of Rs. 4,200 per annum with an option to raise crops at his choice is false. The plaintiff was never the lessee of the property and he has never been in possession of the same. He is not a cultivating tenant of the suit property as claimed by him. With an intent to defraud the defendant, the plaintiff and the Village karnam seems to have fabricated documents. The identification card for purchase of manure and fertilisers, payment of kists by the plaintiff are all denied. There is enmity between the karnam and the 1st defendant who is the Village Munsif. To create some rights some receipts have been fabricated. The allegation that the 1st defendant demanded the plaintiff to surrender possession is not true since the lands were never been in the possession of the plaintiff and there is no necessity to demand surrender. The Record Officer has recorded that the lands are under the personal cultivation of the 1st defendant. The lands are shown as under personal cultivation of the 1st defendant in the adangal. The plaintiff who was engaged for irrigating the lands was terminated from service as he has not properly irrigated the lands. He has come forward with this suit aggrieved over the same. The plaintiff has not raised plantain and he was not in possession as claimed. The suit is liable to be dismissed.
6. On the above pleadings, a common trial was held before the learned Subordinate Judge, Tiruchirapalli. The learned Subordinate Judge, Tiruchirapalli after trial has accepted the case of the plaintiff in O.S. No. 392 of 1975 and granted decree in favour of the plaintiff in that suit for permanent injunction and dismissed the suit O.S. No. 962 of 1974. Aggrieved over the same, the first plaintiff in O.S. No. 962 of 1974 has preferred appeal to the District Court, Tiruchirapalli in A.S. No. 10 of 1981. The second defendant in O.S. No. 392 of 1975 has preferred an appeal in A.S. No. 87 of 1981 before the District Court, Tiruchirapalli. The learned District Judge, Tiruchirapalli who heard both the appeals has upheld the case of the appellant before him and allowed both the appeals granting decree in favour of the plaintiff in O.S. No. 962 of 1974 and dismissing the suit O.S. No. 392 of 1975.
7. Aggrieved over the above common judgment, the respondent in both the appeals has come forward with these two second appeals.
8. These two appeals arise out of the common judgment passed in A.S. Nos.10 of 1981 and 87 of 1981 by the learned District Judge, Tiruchi preferred against O.S. No. 952 of 1974 and 392 of 1975. The plaintiff in O.S. No. 392 of 1975 has filed a suit in O.S. No. 1152 of 1974 on the file of the District Munsif's Court, at Tiruchi contending that he is in possession of the suit property as a tenant under the defendants in the said suit having been inducted into possession, by the first defendant in the said suit viz., Chandrasekaran Pillai and the defendants were trying to interfere with his possession and therefore injunction has to be granted. Interim injunction was granted and the appeal preferred by the defendants to the District Court against the said order of interim injunction has been dismissed. The defendants in O.S. No. 1152 of 1974 on the file of the District Munsif Court, Tiruchi have filed a suit in O.S. No. 952 of 1974 on the file of Sub Court, Tiruchi contending that taking advantage of the injunction granted in his favour, the defendant in the said suit in the Sub court viz., the plaintiff in O.S. No. 1152 of 1974 has trespassed into the suit property and therefore an order directing him to deliver possession should be granted. In view of the fact that the parties to the suit, the subject matter of the suit and the dispute in question in both the suits are the same, the suit on the file of the District Munsif s Court, Tiruchi, has been transferred to the sub court to be tried along with O.S. No. 962 of 1974 and in the Sub Court, Tiruchi, it has been re-numbered as O.S. No. 392 of 1975. The learned Sub Judge, after considering the evidence placed before him, has held that the plaintiff in O.S. No. 392 of 1975 is a cultivating tenant and therefore granted a decree in his favour for permanent injunction and dismissed the suit filed by the plaintiffs in O.S. No. 962 of 1974 seeking delivery of possession. The first plaintiffs in O.S. No. 962 of 1974 and the second defendant in O.S. No. 392 of 1975 preferred appeals before the District Judge, Tiruchi and the learned District Judge has allowed both the appeals holding that the plaintiff in O.S. No. 392 of 1975 is only a trespasser and not a cultivating tenant and dismissed the said suit by allowing the appeal filed by the second defendant in the said suit and directed delivery of possession of the suit property in favour of the first plaintiff in O.S. No. 962 of 1974 who was the appellant before the District Court. It is against the above common judgment, the present second appeals have been filed in this Court.
9. The learned Counsel appearing for the appellants challenge the judgment and decree of the first appellate court mainly on three grounds viz., two co-owners have jointly filed the suit and when their suit was dismissed, one alone cannot file the appeal and there cannot be a decree in favour of the first plaintiff in respect of the suit property when the decree in dismissing the suit filed by the second plaintiff stands unchallenged. According to the learned Counsel, the decree has become final in so far as the second plaintiff Chandrasekaran Pillai is concerned and the lower appellate court cannot reverse it and grant a decree for possession in favour of the first plaintiff alone who was the appellant in A.S. No. 10 of 1981. It is also argued by the learned Counsel that the first appellate court has decided the character of the possession of the property by the plaintiff in O.S. No. 392 of 1975 viz., Subbiah Pillai as a cultivating tenant when the civil court cannot decide the above question and on these three points, the judgment and decree of the lower appellate court has to be set aside. The learned Counsel appearing for the respondents would on the other hand argue that the plaintiff in O.S. No. 392 of 1975 who claims to be the cultivating tenant, has failed to establish the same by acceptable evidence and when the lower appellate court has given a finding that the plaintiff in O.S. No. 392 of 1975 is not a cultivating tenant, it is a question of fact and therefore no second appeal would lie on this question and therefore, the second appeals have got to be dismissed.
10. From the rival contentions of both parties, it is seen that the question before us for consideration is whether the possession of the suit property by the plaintiff in O.S. No. 392 of 1975 is by virtue of the oral lease claimed by him as a cultivating tenant or as a trespasser.
11. According to the learned Counsel appearing for the respondent, when the finding on the nature of possession of the suit property was arrived at by the District Judge not on the basis of any document establishing his possession but on a consideration of relevant documentary and oral evidence adduced by the parties, the said finding cannot be set aside by the High Court in a second appeal. The learned Counsel has argued that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. According to the learned Counsel, it has always been recognised that the sufficiency or adequacy of evidence to support a finding of fact is a matter for decision on the court of facts and cannot be agitated in the second appeal and the learned Counsel refers to the decision reported in Madananchi Ramappa v. Mathaljru Bojiappa : [1964]2SCR673 for the above proposition. According to the learned advocate, disposal of second appeal as if, they are first appeal, notwithstanding clear and authoritative pronouncements on the scope of Section 100 C.P.C. introduces a gambling element in the litigation and confusion in the mind of litigant public, and therefore these two second appeals are not maintainable.
12. It has been held in the decision reported in Kumaraswami v. D.R. Nanjappa : AIR1978Mad285 that the appellate court is bound by the finding of a fact only if it is a concurrent finding. Therefore, I am of opinion that where the findings between the trial court and the first appellate court are not concurrent findings and when the finding of the first appellate court has been arrived placing the onus of proof wrongly, it is a question of law, which can be gone into in the second appeal. Where the inference from facts or the soundness of the conclusion drawn from the facts is questioned, it is a question of law and can be questioned in the second appeal even though, in second appeal, findings of fact cannot be interfered. In this connection I wish to refer to the decision reported in Dilbagrai Punjabi v. Sharud Chandra : AIR1988SC1858 , wherein it has been held as follows:
Though the High Court, while hearing the appeal under Section 100, C.P.C, has no jurisdiction to reappraise the evidence and reverse the conclusions reached by the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an issue of fact a substantial question of law arises. The court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case.
Therefore, it is open to the party to challenge the correctness of the conclusion drawn from such findings.
13. The learned Counsel has referred to the decision of the lower appellate court with regard to the pocket note-book Ex.A-24 which has been disbelieved by the lower appellate court. The learned Counsel has referred to the conclusion arrived at by the first appellate court that the plaintiff in O.S. No. 352 of 1972 cannot be considered entitled to the benefits of the Cultivating Tenants Protection Act on the ground that he does not exert any physical labour and when such gross errors have been committed by the first appellate court, it cannot be stated that the said finding cannot be challenged in the second appeal. On a consideration of the arguments of both parties, I am of the view that the questions raised by the learned Counsel appearing for the appellants for consideration by this Court are not mere questions of fact. They are questions of fact as well as law and therefore, it may not be proper to shut the appellants before us stating that the questions raised in the second appeal are questions of fact.
14. The lower appellate court has come to the conclusion that the plaintiff in O.S. No. 392 of 1975 cannot be considered as a cultivating tenant on three grounds. The first of them is that, his name has not been recorded as a tenant by the Record of tenancy Tahsildar. The second ground is that except Ex.A-24 viz., the pocket note-book the plaintiff has not placed any documentary evidence and the last ground is that there is no evidence that the plaintiff viz., Subbiah Pillai had exerted any physical labour to be considered as a cultivating tenant. Oral evidence has also been let in by both parties.
15. The plaintiff in O.S. No. 392 of 1975 is referred as the plaintiff and the defendants are referred as the defendants in the ensuing discussion. The plaintiff claims that he has been inducted into possession as a tenant by the second defendant viz., Chandrasekaran Pillai in the year 1969 and it is an oral lease. To prove the same, he has examined three witnesses also. P.W.2 is the person who is cultivating the land south of the suit property and he has specifically stated that it is only the plaintiff who has been cultivating the suit property for about 9 to 10 years prior to his giving evidence. His evidence has been disbelieved by the lower appellate court on the ground that he was not aware of the negotiations for lease between the plaintiff and the second defendant. P.W.2 speaks about the actual cultivation of the property by the plaintiff by engaging labourers to plough. P.W.2 is a person who was not present during the negotiations between the plaintiff and the second defendant. According to him he is cultivating the land south of the suit property. He has stated that subsequent to 1969, the defendants are not cultivating the property and it was only the plaintiff who has been cultivating the property. It is not necessary that only those who were present during negotiations of lease agreement, could give evidence regarding the fact of cultivation. P.W.2 being the person cultivating the property south of the suit property, his evidence cannot be rejected on the ground he was not present during negotiations.
16. P.W.3 is a person who has cultivated the lands south of the suit property. According to P.W.3, he has asked the first defendant to lease out the suit property to the plaintiff and it was leased to him in 1969. According to P.W.3, the plaintiff alone was cultivating it from 1969 and not the defendants. He has even stated that after negotiating the lease in the house of the defendant, all the three of them went to karnam's house and it was he who have suggested the rent as Rs. 4,200 when the defendant demanded Rs. 4,500.
17. P.W.4 is a person who is the son of the tenant of the property lying north of the suit property and according to him after the death of his father, he is cultivating the said property. His evidence has been disbelieved on the ground that he was not aware of the enjoyment of the property by P.W.1 by the plaintiff during his father's time. When P.W.4 is the son of the tiller of the soil of the northern side of suit property, it cannot be stated that he had no personal knowledge about the cultivation of the suit property by the plaintiff and his evidence is only hearsay. The reasoning given by the lower court for rejecting the oral evidence of P.Ws.2 to 4 is not sound and tenable. As far as the evidence of D.W s.1 and 2 are concerned, the first appellate court has observed that the lower court has rightly rejected their evidence on the ground that they are servants under the appellant before the District Court. But, even the servants of the appellant before the appellate court have stated in their evidence that the plaintiff used to come to the suit land by engaging labourers he used to irrigate the land. It is not as if they have stated that the plaintiff has nothing to do with the suit property. The evidence of D.Ws.1 and 2 shows that there is some relationship between the plaintiff and the suit property. The specific case of the plaintiff is that he had taken the suit property on lease from Chandrasekaran Pillai and it is an oral lease. The specific case of the defendants is that the plaintiff was employed to irrigate the lands and since he did not do the work properly, his services were terminated, and therefore, he filed a suit and then trespassed into the suit property. Possession of the plaintiff at the time of the recording of the evidence before the Sub Judge is admitted. Whether this possession is by virtue of the oral agreement pleaded by the plaintiff or by trespass into the suit property has to be considered. Since the plaintiff claims that he is a tenant and in that capacity, he is in possession, it is for the defendants to prove that he had trespassed into suit property and his possession is only unlawful. The best person to speak about the same can be either of the two defendants, more particularly, Chandrasekaran Pillai with whom the plaintiff claims to have entered into an oral agreement. But none of them have given evidence. Apart from the oral evidence, the plaintiff has also filed Ex.A-24 a pocket notebook in which there are entries for payment of certain amounts on certain dates by the plaintiff under acknowledgement either by Chandrasekaran Pillai or by his daughter. According to the plaintiff, these payments were made towards lease as and when Chandrasekaran Pillai demanded the same and according to the defendant, it is the amount which is given to them after selling the plantains entrusted to him for sale. The opening of the account by stating 'as entered previously' has to be explained by the defendant Chandrasekaran Pillai as to why he has made such an endorsement. But, Chandrasekaran Pillai has not been examined, nor Krishnaveni the daughter has been examined on behalf of the defendants. It has been held in the decision reported in Sardar Gurbaksh Singh v. Gurdial Singh and Anr. 53 M.L.J. 392 as follows:
It is the bounden duty of a party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination. His non-appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.
The non-examination of Chandrasekaran Pillai or Krishnaveni by the defendant as to why they have made entries in the pocket notebook is a strong circumstance against the defendant. But the lower appellate court has not considered this aspect and has accepted the case of the defendant that it is only towards payment of the sale proceeds of the plantains these entries have been made. In fact, the lower appellate court has observed that except the solitary piece of evidence under Ex.A-24 which by itself suffers from infirmities, there is no intrinsic evidence on the side of the respondents to show that he was in possession as a tenant and has been paying the rent regularly to the land owners subsequent to 1971. The lower court has wrongly placed the burden of proof on the plaintiff to show that he was in possession of the suit property as a tenant. When the possession is admitted, it is for the defendant to show that the possession of the property by the plaintiff is unlawful. Therefore, the lower court has committed an error in placing the burden of proof on the plaintiff. It cannot be stated that the finding that the plaintiff is not a tenant is a question of fact and therefore this Court cannot go into the same in second appeal when the lower court has grossly erred in appreciating the oral and documentary evidence adduced by both parties regarding the question whether the plaintiff is a cultivating tenant or not.
18. Similarly, the lower appellate court has observed that the appellant's case is that the plaintiff had been merely engaged for irrigating and that he has been subsequently removed for unsatisfactory work on the ground among others that the first respondent has not contributed his physical labour in the cultivation of the suit land, and therefore it must be held that he would not get the benefits of the Act. This finding that the first respondent before the appellate court viz., the plaintiff would not get the benefits of the Act, is on the basis that the plaintiff has not contributed his physical labour in the cultivation of the suit land. But it is a well established principle of law as laid down in the decision reported in Kunchithapatham Pillai v. Ranganathan Pillai : (1958)1MLJ272 wherein it has been held that in order to qualify as a 'cultivating tenant' within the meaning of Section 2(aa) of the Act, it is not necessary that a person should put his own muscular effort into the soil and that it is sufficient for the land is cultivated under his direct supervision and if further he assumes the risk of the cultivation, and is not the paid agent in respect of some one else. In our case it is not the case of the defendant that the plaintiff is paid agent in respect of someone else. The plaintiff is said to have been employed for irrigating, which case has not been proved by the defendants, by examining Chandrasekaran Pillai who was said to be in management in 1969. The finding of the lower appellate court that because there is no evidence that the plaintiff has not contributed his physical labour, it must be held that he would not get the benefit of the Act is again a gross mistake committed by the lower appellate court on the basis of the legal position and therefore, I am of opinion that the appellant herein cannot be refused hearing that he is a cultivating tenant on the ground that the lower appellate court has given a finding of fact and in the second appeal, it cannot be challenged. In this connection, I would like to refer to the decision reported in Gopalakrishna Pillai v. Chinnapillai Padayachi : (1977)2MLJ368 wherein it has been held that while considering the scope of Section 100, the High Court could intervene if conclusion of fact finding authority was wrong or not reasonable. In the decision reported in Him Lal v. Gajjan (1990) 3 S.C.C. 285, it has been held as follows:
Section 100(1)(c), C.P.C. (as it stood prior to the 1976) amendment referred to a substantial error or defect in the procedure. The error or defect in the procedure is not that in the appreciation of evidence adduced by the parties on the merits. Even if the appreciation of evidence made is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. If in dealing with a question of fact the lower appellate court has placed the onus on wrong party and its finding of fact is the result substantially of this wrong approach that may be regarded as a defect in procedure. When the first appellate court discarded the evidence as inadmissible and High Court is satisfied that the evidence was admissible that may introduce an error pr defect in procedure. So also in a case where the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in reappreciating the evidence and coming to its own independent decision.
In the decision reported in J.B. Sharma v. State of M.P. : AIR1988SC703 , the Apex Court has held that where the first appellate court while recording the finding acted on an assumption not supported by any evidence and failed to consider the entire document on the basis of which the finding was recorded, the High Court was justified under Section 100 of the Code of Civil Procedure, to set aside the finding. When we approach the case on hand in the light of the above decisions, I am of opinion that the argument of the learned Counsel appearing for the respondent that the finding by the lower appellate court that the plaintiff in O.S. No. 392 of 1975 is a cultivating tenant is a finding of fact and therefore the correctness of the same cannot be challenged in this second appeal is not a tenable one.
19. The learned Counsel appearing for the appellant has also argued that one landlord viz., the second plaintiff in O.S. No. 962 of 1974 did not appeal against the judgment and decree of the trial court and the judgment of the trial court has become final insofar as the said second plaintiff is concerned and the first plaintiff in the said suit cannot get a decree for possession of the entire properties as per the judgment of the appellate court and on that ground also judgment and decree of the first appellate court has to be set aside. The learned Counsel appearing for the respondent would contend that the plaintiffs in the said suit O.S. No. 962 of 1974 have developed some misunderstanding and they are act in talking terms and it is admitted by the first defendant in the said suit that there is a partition among the two in which the suit property has been allotted to the share of the first plaintiff and therefore there is nothing improper or illegal in the first first plaintiff alone preferring the appeal in A.S. No. 10 of 1981 for recovery of possession. It is of course stated that there is some misunderstanding and the plaintiffs 1 and 2 are not in talking terms with each other, at the time of the trial of the suit, D.W.4 son of the second plaintiff in the said suit has stated that his uncle may not come for giving evidence on account of the enmity. Even though it is stated by him that there was a division between the cousin brothers and the suit property has been allotted to the share of his father viz., the first plaintiff in O.S. No. 962 of 1974, no document has been filed by him to show that the first plaintiff has been given the suit property. P.W.1 during cross-examination has stated that a partition has been effected between the defendants 1 and 2 in O.S. No. 392 of 1975, but he does not know to whom the suit property was allotted. When the plaintiff in O.S. No. 392 of 1975 pleads that he does not know to whom the suit property was allotted, the defendant who claims to have acquired the suit property in his favour as per the partition, could have filed the partition deed and shown that he alone is entitled to the suit property and his cousin brother Chandrasekaran Pillai has nothing to do with the same. But, he has not filed the partition deed and no explanation has been given by Thirunavukkarasu Pillai as to why he has not filed any document to show that he alone is the owner of the suit property. When the plaintiff in O.S. No. 392 of 1975 specifically pleads that he has been inducted into possession only by Chandrasekaran Pillai, the defendant should have let in evidence to show that Chandrasekaran Pillai has no interest subsequent to the partition. It is no doubt true that Chandrasekaran Pillai has been impleaded as a respondent in the two appeals. But the same cannot cure the defect in filing the appeals by Thirunavukkarasu for setting aside the judgment of the trial court in which the relief sought for by Chandrasekaran Pillai viz., recovery of possession from the plaintiff in O.S. No. 392 of 1975 has been rejected by the trial court and when Chandrasekaran Pillai has not chosen to file any appeal against the said rejection. The respondent has no doubt argued that all co-owners must join in a suit to recover the property unless the law otherwise provides and if some co-owners refused to sue, the proper course to adopt is to make them defendants in the suit. This principle is applicable to suits for recovery of possession from lessees who have a right in the property. The defect in the filing of the appeal is said to have been cured on account of this proposition of law. But the said proposition of law cannot be made applicable to the present case on hand since the relief sought for by Chandrasekaran Pillai against the defendant has been negatived in the trial court and there is no evidence placed before the trial court that Chandrasekaran Pillai has no interest in the property by virtue of the allotment of the property in favour of his cousin brother Thirunavukkarasu by filing the partition deed. When Chandrasekaran Pillai has taken the judgment and decree of the trial court, the other plaintiff viz., Thirunavukkarasu Pillai has to let in evidence that Chandrasekaran Pillai has no interest in the property on account of the partition between them. In the absence of any such evidence, the argument of the learned Counsel appearing for the appellant that Thirunavukkarasu Pillai who is said to be a co-owner of the property, cannot be given relief of delivery of possession of the entire property and yet, the lower appellate court granted the same and therefore the said judgment and decree of the lower court is liable to be set aside is well-founded and I am opinion that the appeals are to be allowed on that ground also.
20. The learned Counsel appearing for the appellant has argued that the question whether the plaintiff in O.S. No. 392 of 1975 is a cultivating tenant or not can be relegated to the enquiry by the Record of Tenancy Tahsildar and the judgment of the first appellate court that he is not cultivating tenant has to be set aside. The suit O.S. No. 392 of 1975 is a suit for permanent injunction. In this suit, O.S. No. 392 of 1975, the question whether the plaintiff is a cultivating tenant or not had arisen incidentally. As per the decision reported in Hira Lal v. Gajjari (1990) 3 S.C.C. 285, where title to land arises incidentally exclusive jurisdiction of revenue court will not bar a suit for injunction in civil court. Therefore, it is not as if the question whether the plaintiff is a cultivating tenant or not cannot be decided in a civil suit. Suffice it to observe that incidentally that question can be decided. The argument of the learned Counsel appearing for the appellants that the question whether the plaintiff is a cultivating tenant or not can be relegated to the enquiry before the Record of Tenancy Tahsildar only on account of the bar imposed by Section 16(a) of the Act, which provides that the civil court has no jurisdiction to go into the question. But, as we have seen in the decision reported in Hira Lal v. Gajjan (1990) 3 S.C.C. 285, when the suit is one for injunction, it cannot be stated that the incidental question whether the plaintiff in O.S. No. 392 of 1975 is a cultivating tenant or not cannot be gone into. On considering the materials placed before this Court. I am of opinion that possession of Subbiah Pillai from 1969 having been admitted, it is for the landlord to prove that he is a trespasser and it is not for Subbiah Pillai to prove that he is in possession in his capacity as a cultivating tenant and yet the lower appellate court has proceeded erroneously placing the burden on Subbiah Pillai and allowed both the appeals holding that the plaintiff is not a cultivating tenant and he is only a trespasser and this finding has to be set aside in these two appeals and it cannot be shut down holding that in the second appeals, the question of fact cannot be gone into, by the High Court. In that view, I am of opinion that both the appeals are to allowed.
21. In the result, both the appeals are allowed with costs setting aside the judgment and decree of the District Judge, Tiruchi in A.S. No. 10 of 1981 and A.S. No. 87 of 1981 and confirming the decree granted in O.S. No. 392 of 1975 and dismissing the suit O.S. No. 962 of 1974 by the Sub Judge, Tiruchi.