Krishnan(Died) Vs S.Padmanaban(died)

Appellants 2 To 6 Brought On Record as LRs of the deceased Sole Appellant Viz.,krishnan Vide Order of Court Dated 06/08/2020 made in CMP.No.5507,5509 and 5512 of 2020 In SA.No.336/2003(Dr.GJJ)

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SA No. 336 of 2003

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7.P. Nagalingam S/o. Pachai, No.5, Anbazhagan Street, Oragodam, Ambattur, Chennai - 600 053.

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8.N. Saravanan

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S/o. P. Nagalingam, No.5, Anbazhagan Street, Oragodam, Ambattur, Chennai - 600 053.

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9. KAVITHA

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D/o. P. Nagalingam, No.5, Anbazhagan Street, Oragodam, Ambattur, Chennai - 600 053.

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10.N. Elangovan

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S/o. P. Nagalingam, No.5, Anbazhagan Street, Oragodam, Ambattur, Chennai - 600 053.

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11.N. Elavalagan S/o. P. Nagalingam, No.5, Anbazhagan Street, Oragodam, Ambattur, Chennai - 600 053.

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12. JAYALAKSHMI

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D/o. P. Nagalingam, No.5, Anbazhagan Street, Oragodam, Ambattur, Chennai - 600 053.

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Appellant(s)

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(Appellants 7 to 12 brought on record as legal heirs of Deceased 4th Appellant N.Janaki vide order of court dated 22/06/2022 made in CMP.No.2682 of 2022 in SA.No.336 of 2003 (CVKJ).

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Vs

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S.PADMANABAN(died) S/o.Santhanam, Melpakkam,Veeraraghavapuram, Chennai 71

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2.Ilango, S/o.Krishnan

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3.SUNDARAM(died) s/o nagan

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4.RADHA

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W/o. Late. S.Padmanaban, No.4/101, Perumal Koil Street, Malapakkam, Chennai 600 077

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5.SIDHARDHAN

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S/o. Late. S.Padmanaban, No.4/101, Perumal Koil Street, Malapakkam, Chennai 600 077

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6.KANISHKA

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D/o. Late. S.Padmanaban, No.4/101, Perumal Koil Street, Malapakkam, Chennai 600 077

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7.Sasi Kumar

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S/o. Late. S.Padmanaban, No.4/101, Perumal Koil Street, Malapakkam, Chennai 600 077

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8.S.Arasu

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S/o. Late. N.Sundaram No.4/102, Perumal Koil Street, Malapakkam, Chennai 600 077

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9.ILAMATHI

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D/o.Late.N.Sundaram No.4/102, Perumal Koil Street, Malapakkam, Chennai 600 077

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....Respondent(s)

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RR4 to 7 and 8 & 9 brought on record as LRs of the deceased 1st and 3rd respondent respectively vide order of court dated 26/07/2022 made in CMP.Nos. 9061 to 9064, 9066 and 9067 of 2022 in S.A.NO.336 of 2003(CVKJ).

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PRAYER: Second Appeal filed Under Section 100 of the Civil Procedure Code, against the Judgment and decree passed in A.S.No.79 of 2000, dated 22.07.2002, on the file of the Subordinate Court, Poonamallee, passed by the learned Additional District Judge, Fast Track Court No.IV, Poonamallee, set aside the decree and judgement passed in O.S.No.96 of 1996 dated 28.08.2000, on the file of the District Munsif Court, Poonamallee.

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For Appellant(s):	Mr.V.Raghavachari Senior Counsel
	for Mr.N.Palanisamy for A2- A12 For A1 - Died
For Respondent(s):
For R2, R4 to R9	No appearance
For R1 & R3	Died

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JUDGMENT

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The appellants have filed this Second Appeal against the judgment and decree passed in A.S.No.79 of 2000, dated 22.07.2002, on the file of the Subordinate Court, Poonamallee, passed by the learned Additional District Judge, Fast Track Court No.IV, Poonamallee, set aside the decree and judgement passed in O.S.No.96 of 1996 dated 28.08.2000, on the file of the District Munsif Court, Poonamallee.

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For the sake of convenience, the parties herein are referred to as they

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were ranked in the suit.

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Challenging the reversal findings of the first appellate court, the third defendant has preferred this appeal. Before the trial court, the first respondent herein filed a suit in O.S. No. 96 of 1996 on the file of the Principal District

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Court, Poonamallee, seeking the relief of permanent injunction against the three defendants, restraining them from evicting him from the suit property except under due process of law. The said suit was contested by all the three defendants.

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On hearing both sides, the learned trial Judge dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S. No. 79 of 2000 on the file of the Additional District Judge, Fast Track Court No.IV, Poonamallee. The learned first appellate Judge, after considering the evidence on record, framed separate points for consideration and, finally, allowed the appeal by setting aside the findings of the trial court, thereby granting the relief in favour of the plaintiff as prayed for. Aggrieved by the said judgment and decree of the first appellate court, the third defendant has preferred this second appeal.

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The brief facts of the case are as follows: The plaintiff claimed that he is a cultivating tenant under the second defendant and that he has been in possession and enjoyment of the suit property as such. As a tenant, he used to pay ten bags of paddy per year as lease rent to the second defendant, who is the owner of the land, and he cultivated groundnut in the suit property. The first defendant is the son of the second defendant, and, in collusion with the third defendant, all the three defendants attempted to unlawfully interfere with and evict the plaintiff from the property. The plaintiff contended that his tenancy has

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been duly registered under the Cultivating Tenancy Protection Act, and therefore, he cannot be evicted except in accordance with the provisions of the said Act. Hence, he filed the present suit seeking a permanent injunction against all the three defendants.

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The first and second defendants contested the suit. The second defendant stated that he is the owner of the suit property and that the plaintiff is his cultivating tenant. As on date, the plaintiff is in possession, enjoyment, and cultivation of the suit lands. The second defendant further submitted that the third defendant had earlier filed a suit in O.S. No. 191 of 1979 and obtained a decree in his favour, and based on the said decree, he attempted to interfere with the possession of the plaintiff, which he was not entitled to do. The second defendant also stated that the third defendant insisted that he evict the plaintiff, but he had not caused any interference with the plaintiff’s peaceful possession and enjoyment of the property.

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The third defendant contested the suit, stating that the suit property originally belonged to one Rajavelu and one Nagabhushanam, from whom he had entered into a sale agreement in the year 1978. He claimed that he entered into a valid sale agreement with Nagabhushanam in 1978. However, with an ill motive to defeat his lawful claim, the said Rajavelu and Nagabhushanam created a false sale agreement dated 05.08.1978 in favour of the second defendant, thereby creating an encumbrance over the suit property.

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On coming to know of this, the third defendant filed a suit in O.S. No. 191 of 1979 before the Subordinate Court, Chengalpattu, seeking specific performance, directing the defendants therein, namely, Nagabhushanam, Rajavelu, and the second defendant, Sundaram, to execute the sale deed in his favour. The said suit was contested and decreed in favour of the present third defendant. Aggrieved by that decree, the defendants in that suit filed an appeal in A.S. No. 912 of 1980, which was dismissed, thereby confirming the findings of the trial court.

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To execute the decree, the third defendant filed Execution Petition No. 189 of 1989, pursuant to which the sale deed was executed in his favour on 22.07.1993. Thereafter, he sought delivery of possession in E.P. No. 198 of 1993, and accordingly, delivery was ordered in his favour in the year 1996. Since then, he has been in possession and enjoyment of the property as its absolute owner. He further contended that, without any valid basis, the alleged tenancy records were clandestinely created by the plaintiff in collusion with the second defendant, and that the second defendant had also fraudulently obtained a patta in his name. As per the decree passed in O.S. No. 191 of 1979, the third defendant asserted that he is the absolute owner of the suit property and that neither the alleged sale deed created by the second defendant nor the patta could bind him. Therefore, he prayed that the suit be dismissed as devoid of merits.

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Before the trial court, both parties adduced oral and documentary evidence. On the side of the plaintiff was examined as P.W.1 and Ex.P1 and Ex.P2 were marked. On the side of the defendants, 2^nd and 3^rd defendants were examined as D.W.1 and D.W.2 and Ex.B1 to Ex.B10 were marked, and Ex.C-1 and C-2 were marked by the Court. The learned trial Judge framed two issues for consideration. The foremost issue was whether the plaintiff was entitled to the relief of permanent injunction?.

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On consideration of the evidence on record, the trial court held that, in the earlier suit filed by the third defendant in O.S. No. 191 of 1979, a decree had been granted in his favour. In pursuance of the said decree, a sale deed was executed through the process of court, based on which the third defendant took possession of the property. During the pendency of those proceedings, the second defendant, who was one of the defendants in the said earlier suit, suppressed the pendency of those proceedings before the Revenue Authorities and, in collusion with the present plaintiff, got the plaintiff’s name registered as a cultivating tenant in the tenancy records, marked as Exhibit A-1. Based on that, the Tahsildar passed an order, marked as Exhibit A-2.

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However, as per the decree passed in O.S. No. 191 of 1979, the third defendant became the absolute owner of the property on the strength of the sale deed executed through court, and the said decree also binds the second

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defendant, who was a party to that suit. By suppressing those judicial proceedings, the plaintiff and the second defendant obtained the tenancy order illegally. Hence, the plaintiff was not entitled to any relief, as he had not approached the court with clean hands. The trial court further held that the plaintiff failed to prove that he was in lawful possession of the suit property, and that the alleged cause of action was neither true nor valid. Accordingly, the suit was dismissed.

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Challenging the said findings, the plaintiff preferred an appeal in A.S. No. 79 of 2000 before the Subordinate Court, Poonamallee. The learned first appellate Judge analyzed the facts and evidence and finally concluded that, as per the order passed by the Revenue Divisional Officer, the plaintiff was registered as a cultivating tenant, as shown in the register extract, Exhibit A-2. Therefore, the plaintiff was a cultivating tenant under the second defendant in respect of the suit property, and the sale deed in favour of the third defendant was subsequent to that order. Prior to that, the second defendant was the owner of the suit property, under whom the plaintiff was the cultivating tenant. Hence, the plaintiff was entitled to protection under the Tamil Nadu Cultivating Tenants Protection Act.

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Furthermore, the first appellate court observed that, in the decree relied on by the third defendant in O.S. No. 191 of 1979, there was no specific

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prayer for recovery of possession. Therefore, the third defendant was not entitled to claim possession of the property based on that decree. On the other hand, the plaintiff had proved that he was in lawful possession and enjoyment of the suit property as a cultivating tenant, and hence, he was entitled to the relief of injunction. Accordingly, the appeal was allowed, and the suit was decreed.

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Challenging the said findings, the aggrieved third defendant has now preferred the present appeal. The learned counsel for the appellant contended that the second defendant, Sundaram, was one of the defendants in O.S. No. 191 of 1979, filed by the present appellant, in which a decree for specific performance was granted, directing the original owners to execute the sale deed in favour of this appellant. Against that decree, an appeal was filed in A.S. No. 912 of 1980, and the findings of the trial court were confirmed. Pursuant to the decree, a sale certificate was issued in favour of the appellant in E.P. No. 193 of 1993, and based on that, he took possession of the property on 14.02.1996. As on date, the appellant continues to be in possession of the property.

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However, without considering the judicial proceedings and records, the learned first appellate Judge erroneously relied solely on Exhibits A-1 and A-2, documents which were obtained by the plaintiff and the second defendant in collusion, with an intention to defraud the lawful rights of the appellant by suppressing material facts before the revenue authorities. Though the trial court

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had properly appreciated the evidence, the first appellate court failed to do so, leading to an improper and perverse finding, warranting interference by this Court. Hence, the learned counsel for the appellant prayed that the appeal be allowed.

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Furthermore, the learned counsel for the appellant contended that the learned first appellate Judge, while disposing of the appeal, had erroneously observed that there was no prayer for delivery of possession in O.S. No. 191 of 1979, and therefore, the possession claimed by the appellant was illegal and unwarranted. The counsel argued that the plaintiff is bound to prove his own case and cannot rely on the weakness of the defendants’ case. He also pointed out that a sale certificate had already been issued in favour of the appellant through execution proceedings, in which the second defendant was also a party. However, the second defendant suppressed those legal proceedings and, in collusion with the plaintiff, caused an RTA entry in the tenancy register.

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Despite the best evidence being produced on the side of the appellant, the learned first appellate Judge erroneously ignored the documentary evidence and wrongly relied upon Exhibits A-1 and A-2 in granting the relief in favour of the plaintiff. Such a finding is perverse and liable to be set aside.

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Accordingly, the appeal is admitted on the following substantial question of law.

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“Whether the first appellate Court was correct in holding that the plaintiff is entitled for the injunction as prayed for and whether the finding is supported by any evidence on record”.

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Notice was served on the respondents, however, none appeared. Their

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names were printed in the cause list. On considering the submissions of the learned counsel for the appellant and on perusal of the records, it is seen that, based on Exhibit A-1, the RTR tenancy register extract, the plaintiff/first respondent claimed that he was a cultivating tenant of the suit property under the third respondent/second defendant, Sundaram. He stated that, pursuant to a tenancy lease agreement, he had been in possession and enjoyment of the suit lands and had been cultivating the same from the year 1993 onwards. He further contended that the third defendant/appellant, in collusion with the second defendant, attempted to unlawfully evict him from the property. Therefore, he filed the present suit seeking a permanent injunction restraining the defendants from evicting him except under due process of law.

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The third defendant/appellant strongly contested the suit, contending that he had obtained a decree in O.S. No. 191 of 1979. On perusal of the said decree, it is evident that the appellant, as the plaintiff therein, had filed a suit for specific performance against the original owners of the property, namely, Rajavelu and Nagabhushanam, with whom he had entered into a sale agreement

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in August 1978. Subsequently, in order to defeat his lawful right, the said vendors created another sale agreement in favour of the second defendant, Sundaram. Therefore, the appellant filed the said suit for specific performance.

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All the above parties contested the suit on merits, and the trial court decreed the suit in favour of the appellant, holding that he was the bona fide purchaser of the suit property. The court further held that the alleged sale deed relied on by the second defendant, Sundaram, and Nagabhushanam was created only to defeat the claim of the appellant.

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An appeal in A.S. No. 79 of 2000 was filed against the said decree, and the same was dismissed, confirming the judgment and decree in O.S. No. 191 of 1979. Thereafter, the appellant filed an execution petition to obtain a sale deed through the court. Accordingly, a sale deed was executed in his favour in July 1993. The judgment in O.S. No. 191 of 1979 was marked as Ex.A-1, and the sale deed executed in favour of the appellant was marked as Ex.B2. These two documents clearly establish that, from the year 1979 onwards, with respect to the suit property, disputes existed between the appellant and the second defendant (R3 herein) and the original owners, and that, as per the judicial pronouncements, the appellant is the absolute owner of the property. The sale deed was executed in his favour, and possession was also delivered to him through due process of law.

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To that effect, the status report was filed, and delivery was recorded

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in the year 1996 as per the delivery order. The Village Administrative Officer (VAO) also handed over possession to the appellant. It is a settled proposition of law that title follows possession. Therefore, the title of the appellant and his lawful possession were clearly established before the trial court, and the learned trial Judge rightly appreciated this evidence. However, the learned first appellate Judge erroneously concluded that there was no prayer for delivery of possession in O.S. No. 191 of 1979, and hence, the possession claimed by the appellant based on the said decree was not acceptable.

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Countering the same, the learned counsel for the appellant relied on the decision reported in 2020 SCC OnLine Mad 21445 : (2020) 4 LW 851 , wherein this Hon’ble Court elaborately discussed the principle regarding delivery of possession in a suit for specific performance. It was held that even if there is no specific prayer for delivery of possession in the plaint, it is not fatal to the plaintiff, as the executing court has the power to direct delivery of possession upon execution of the sale deed pursuant to a decree for specific performance.

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“14.Mr.V.Raghavachari would contend that the theory that relief of possession is inbuilt in a decree for specific performance is no longer valid and it is obligatory on part of the plaintiff to seek the relief of possession. Drawing my attention to the Judgment of this Court in Vasanthi v. Manickam reported in (2017) 3 CTC 729 wherein, the Hon'ble Justice M.V. Muralidharan has held that the executing Court cannot direct delivery of possession of the property if the decree for specific performance does not provide for delivery of possession. Reliance is also placed by Mr. V. Raghavachari on the

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judgment of the Single judge of Delhi High Court in Mahendra Nath Gupta v. Moti Ram Rattan Chand reported in AIR 1975 Del 155 wherein, the learned Single Judge of the Delhi High Court had taken note of the introduction of Section 22 in the 1963 Act and the absence of a analogous provision in the 1877 Act to conclude that the new section would apply only to suits, which have been instituted after the commencement of the new Act.

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15. Mr. Srinath Sridevan, learned counsel for the first respondent would however contend that the Section 22 is only enabling provision and it introduces only a new rule pleading and does not effect the substantive law. According to the learned counsel, once specific performance of the Contract is sought for in a suit and the suit is decreed, the said decree would take in itself all the obligations of the vendor under the contract including delivery of possession. Therefore, according to him, there is no need for a separate prayer for possession.

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16. Drawing my attention to the language of the section which specifically states that "the plaintiff may in an appropriate case ask for", Mr. Srinath Sridevan would submit that this provision will not have the effect of abrogating the law as it stood prior to its enactment. He would further submit that even after the enactment of Section 22, the Hon'ble Supreme Court has held that even without a prayer for possession, the Executing Court will have the power to direct delivery of possession upon execution of sale deed pursuant to a decree for specific performance. Reliance in this regard is placed by the learned counsel on the judgment of the Hon'ble Supreme Court in Babu Lal v. Hazari Lal Kishori Lal reported in (1982) 1 SCC 525: AIR 1982 SC 818. The learned counsel would draw my attention 1963.

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19. Mr. Srinath Sridevan would also rely upon the judgment of this Court in S. Sampoornam v. P.V. Kuppuswamy reported in (2007) 3 CTC 529 wherein, the Hon'ble Justice Mrs. Prabha Sridevan had considered a similar issue and after referring to both Babu Lal's case reported in AIR 1982 Page 818 as well as the judgment of the Hon'ble Supreme Court in Adcon Electronics reported in (2001) 4 CTC 39 and held that the decree for specific performance includes a term for delivery of possession and it is unnecessary for Court to direct delivery of possession expressly because the Court was

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directing enforcement of the entire agreement including the agreement to delivery of possession.

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20. Mr. Srinath Sridevan would also point out to the recitals in the sale deed executed by the Court in the case on hand, which require possession to be handed over to the first respondent. Reliance is also placed on the judgment of the Hon'ble Justice R.S. Ramanathan in Srikandasaswamy Permanent Fund Ltd. v. B.Μ. Sivanarayanan Sah reported in 2014 SCC Online Mad 531 wherein, the learned judge after referring to the judgments of the Supreme Court in Babu Lal's case, Adcon Electronics and the judgment of this Court in S. Sampoornam v. P.V. Kuppusamy Kuppusamy had held that a decree for for specific performance would take within its ambit the relief of possession also and therefore, in the absence of prayer for possession cannot be fatal to the plaintiffs right to seek possession in execution proceedings. Reliance placed by the learned counsel for the first respondent on the judgment of the Calcutta High Court in (1991) 1 Cal LJ 55 and the judgment of the Andhra Pradesh High Court is also in (2007) 1 AP LJ 186 (HC) wherein, also a similar view was expressed. ”

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Therefore, even in the absence of a specific prayer for possession in a suit for specific performance, the executing court is empowered to deliver possession based on the sale deed executed through court. In the present case, based on the sale deed executed by the court of law, the appellant initiated execution proceedings in E.P. No. 198 of 1993 in O.S. No. 191 of 1979, and delivery of possession was accordingly ordered and effected. Hence, the appellant’s possession is lawful, and the contrary observation of the first appellate court is illegal, perverse, and liable to be set aside.

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Admittedly, from 1979 onwards, civil proceedings have been pending

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between the appellant and the second defendant (R3 herein). Suppressing the pendency of those litigations, and after the issuance of the sale certificate in favour of the appellant in 1993, the second defendant (R3), in collusion with the plaintiff, created an RTR entry without disclosing the pending suits before the Revenue Authorities. Based on such suppression, the Revenue Divisional Officer (RDO) passed the order marked as Exhibit A-3, which has been proved by the appellant. The trial court rightly appreciated this aspect, but the first appellate court failed to consider the legal implications of the pending litigation and the judicial pronouncements between the parties. By merely relying on Exhibits A-1 and A-2, the first appellate court erroneously concluded that the plaintiff was a cultivating tenant of the property, which finding is illegal and unsustainable.

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Moreover, as rightly pointed out by the learned counsel for the appellant, there is no iota of evidence regarding payment of the alleged lease rent of ten bags of paddy. The plaintiff failed to produce any muchilika or lease agreement to substantiate the alleged tenancy. The second defendant also failed to produce any document, such as a sale deed, to prove his ownership of the suit property. All these deficiencies clearly show that the plaintiff is not a cultivating tenant. Even assuming, for the sake of argument, that he was a tenant, there is no proof of payment of rent or lease amount. Hence, the plaintiff is not entitled to the relief as prayed for.

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In support of this contention, the learned counsel for the appellant

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relied upon the following decisions:

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(i) Johnson vs. Chathan / Eravi Olittar Trust, Urithiran Kalkandan

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Sasthankoil Family Trust, rep. by its Trustees, Kanniyakumari District and

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Others , (2008) 3 MLJ 711, stated as follows:

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Act (25 of 1955) - Code of Civil Procedure (5 of 1908), Section 100 - Suit for permanent injunction - Claim that plaintiff is a cultivating tenant - No evidence to show that plaintiff is a cultivating tenant - Alleged caus of action, not proved - In view of the scheme decree framed by the Government, plaintiff precluded from claiming to be a lessee - Plaintiff, being a defaulter in payment of rent, cannot get the equitable relief of injunction against”.

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(ii) Saraswathi Ammal and Others vs. Nagaraj , 2018 MAD 7894, held

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as follows:

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“Tenancy Laws Cultivating Tenant Suit For Permanent Injunction Respondent/Plaintiff alleging to be cultivating tenant of suit property after demise of his father filed suit for permanent injunction restraining Appellants/Defendants/Owners of suit property from trespassing into suit property so as to evict him as defaulted in paying rentals Trial Court decreed suit holding Respondent in possession of property as cultivating tenant and same affirmed by First Appellate Court Whether impugned concurrent judgments of Lower Courts maintainable Held, relief of permanent injunction could not be granted in favour of tenants seeking to preempt landlord from taking steps to evict tenant Both Lower Courts erred in granting relief of permanent injunction in favour of Respondent by holding him to be cultivating tenant when his application to declare him as cultivating tenant pending before Appellate Authority for past 14 years Respondent being defaulter not entitled to seek equitable relief of permanent injunction against

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Appellants/owners of property Lower Courts erred in declaring Respondent to be cultivating tenant relying on document showing payment of rental for year 1996 alone Respondent being defaulter and admitted nonpayment of rentals from year 1997 to 2003 till date of filing suit and even after filing of suit not entitled to relief of permanent injunction and same erroneously granted by Lower Courts impugned concurrent judgements of lower courts set aside appeal allowed.”

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Hence, this Court holds that the first appellate court erred in finding that the plaintiff was a cultivating tenant entitled to the relief of injunction. Accordingly, the substantial question of law is answered in favour of the appellant.

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For the foregoing reasons, the findings of the first appellate court are set aside. The judgment and decree of the trial court are confirmed. The suit stands dismissed with costs. Consequently, the second appeal is allowed with costs.

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10.11.2025

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Index:Yes/No Speaking/Non-speaking order Internet:Yes Neutral Citation:Yes/No rri

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To

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