Sivaraj vs / on 27 June, 2025

    0
    31
    ADVERTISEMENT

    Madras High Court

    Sivaraj vs / on 27 June, 2025

                                                                                        S.A(MD)No.502 of 2022
    
                                BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
    
                                             RESERVED ON : 21.01.2026
    
                                             DELIVERED ON : 27.02.2026
    
                                                           CORAM:
    
                                 THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
    
                                              S.A.(MD).No.502 of 2022
                                                       and
                                             C.M.P.(MD)No.4629 of 2025
    
    
    
    
                    1.Sivaraj
                    2.Kanagaraj                     : Appellants/Respondents 1 and 2/
                                                                            Defendants 1 and 2
    
                                                                Vs./
    
                    1.Shanthi
                    2.Chitra
                    3.Kamala
                    (Respondents 1 to 3 are given up
                    vide order dated 27.06.2025)
    
                    Sarbunnisa Begam(died)
    
                    4.Muhamed Assarudin                                : Respondents/Respondents/
                                                                                  Defendants
    
                    PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code,
                    against the judgment and decree dated 28.03.2022 in A.S.No.71 of 2018, on the
                    file of the Principal Subordinate Court, Kumbakonam, confirming the judgment
    
    
                    1/29
    
    
    
    https://www.mhc.tn.gov.in/judis           ( Uploaded on: 24/03/2026 01:19:45 pm )
                                                                                             S.A(MD)No.502 of 2022
    
                    and decree dated 09.07.2018 in O.S.No.3 of 2014, on the file of the Principal
                    District Munsif Court, Kumbakonam.
    
    
                                      For Appellants     : Mr.V.Sasikumar
    
                                      For Respondents : Mr.M.P.Senthil
                                                      for Mr.G.Aravindan
                                                            for R.4
    
                                                         : R.1 to R.3 given up
                                                         vide order dated 27.06.2025
    
    
                                                             JUDGMENT
    

    The Second Appeal is directed against the judgment and decree made in

    A.S.No.71 of 2018, dated 28.03.2022, on the file of the Principal Subordinate

    SPONSORED

    Court, Kumbakonam, confirming the judgment and decree passed in O.S.No.3 of

    2014, dated 09.07.2018, on the file of the Principal District Munsif Court,

    Kumbakonam.

    2. The appellants are the plaintiffs 1 and 2. The deceased Sarbunnisa

    Begam filed a suit in O.S.No.3 of 2014 on the file of the Principal District Munsif

    Court, Kumbakonam claiming permanent injunction restraining the defendants

    and their men from any manner interfering with the plaintiff’s peaceful possession

    and enjoyment of the suit property. Pending first appeal, the sole plaintiff died

    2/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    and her legal representative was impleaded as the second respondent in the first

    appeal and the fourth respondent in the present Second Appeal. The defendants 3

    to 5 who also filed the first appeal are now shown as the respondents 1 to 3 in the

    present Second Appeal.

    3. For the sake of convenience and brevity, the parties will hereinafter be

    referred as per their status/ranking in their original suit.

    4. The case of the plaintiff, in brief, is as follows:

    a). The suit properties comprise three items of cultivable wet (nanja) lands

    situated in Re-survey Nos. 258/4, 263/1 and 273/8 of Krishnapuram Village,

    Kumbakonam Taluk, measuring a total extent of 1.60 acres. The plaintiff

    purchased the said properties under two registered sale deeds dated 05.09.2001,

    bearing Document Nos. 452 and 453 of 2001. The plaintiff was also the owner of

    adjacent properties, a portion of which was subsequently sold to one Jeyabalan,

    specifically excluding the borewell portion. As the said Jeyabalan attempted to

    lay claim over the borewell, the plaintiff sought to sink a new borewell in the suit

    properties and, in that connection, put up a thatched shed in Items II and III of the

    suit schedule properties.

    3/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    b). The defendants have no manner of right, title or interest in the suit

    properties. Originally, one Sambantham Padayatchi, the father of the defendants,

    was cultivating the suit properties as a tenant under the plaintiff’s predecessors-

    in-title, namely Hamida Beevi. Even prior to the plaintiff’s purchase, the said

    Sambantham Padayatchi had sub-leased the suit properties to the plaintiff under

    two documents dated 01.02.1996 and 16.08.1999.

    c). The said Sambantham Padayatchi died in the year 2000. However,

    taking advantage of the fact that his name continued to remain in the cultivating

    tenants register, the defendants 1 and 2 falsely claimed cultivating tenancy rights

    from the plaintiff, which was categorically denied. It is further stated that prior to

    the execution of the sale deeds, the plaintiff’s predecessors-in-title had entered

    into a sale agreement dated 30.07.2001 in favour of the plaintiff agreeing to sell

    the suit properties. On 31.12.2013, the defendants 1 and 2 once again attempted

    to assert cultivating tenancy rights and, upon refusal, made attempts to trespass

    into the suit properties and to dismantle the thatched shed put up by the plaintiff.

    Such unlawful attempts were resisted by the plaintiff. Hence, the plaintiff was

    constrained to institute the present suit seeking the relief of permanent injunction

    restraining the defendants from interfering with her peaceful possession and

    enjoyment of the suit properties.

    4/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    5. The defence of the defendants, in brief, is as follows:

    (a) The suit properties along with the other property in Survey No.262/2

    originally belonged to Hameeda Beevi. The defendants’ father Sambantham

    Padayatchi had obtained cultivating tenancy rights from the said Hameeda Beevi

    and his name was duly entered in the Cultivating Tenants Register. The

    defendants are disputing the documents dated 01.12.1996 and 16.08.1999 said

    to have been executed by their father Sambantham Padayatchi and are also

    disputing the signatures of Sambantham Padayatchi found therein. The said

    documents are unstamped and unregistered and therefore, liable to be rejected.

    (b) After the demise of their father Sambantham Padayatchi, the defendants

    1 and 2 have been in possession and enjoyment of the suit properties and have

    been cultivating the same. The allegation of the plaintiff that she had put up a

    thatched shed in connection with the sinking of borewell, is false and untenable.

    The first defendant being the the elder son of Sambantham Padayatchi had

    approached the Krishnapuram Primary Agricultural Co-operative Bank and

    obtained crop loans upto 2012. The plaintiff has never been in possession of the

    suit properties. The plaintiff has no cause of action and alleged one is false and

    untenable. Hence, the suit is liable to be dismissed.

    5/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    6. The learned trial Judge, upon considering the pleadings of both parties,

    framed the following issues:

    (i) Whether the plaintiff is entitled to get the relief of permanent injunction

    as sought for?

    (ii) To what other reliefs?”

    7. During trial, the plaintiff examined herself as P.W.1 and five other

    witnesses as P.W.2 to P.W.6 respectively and exhibited 12 documents as Exs.A.1

    to A.12. The defendants 1 and 2 examined themselves as D.W.1 and D.W.3

    respectively and examined one Annathurai as D.W.2 and adduced no

    documentary evidence. Five witness documents came to be exhibited as Exs.X.1

    to X.5 and the Commissioner’s report and plan came to be exhibited as Exs.C.1

    and C.2 respectively. The learned Principal District Munsif, upon considering the

    pleadings and evidence both oral and documentary and on hearing the arguments

    of both sides, passed the judgment and decree dated 09.07.2018, granting the

    relief of permanent injunction as sought for with costs. Aggrieved by the said

    judgment and decree, the defendants preferred an appeal in A.S.No.71 of 2018

    and the learned Principal Subordinate Judge, Kumbakonam upon considering the

    materials available on record and on hearing the arguments of both sides, passed

    the impugned judgment and decree, dated 28.03.2022, dismissing the appeal and

    6/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    thereby confirming the judgment and decree of the trial Court. Challenging the

    dismissal of the appeal, the defendants 1 and 2 have preferred the present Second

    Appeal.

    8. Though the Second Appeal has been pending since the year 2022, the

    same has not yet been admitted and consequently no Substantial Question of Law

    has been formulated. Pending Second Appeal, the appellants filed an application

    under Section 151 C.P.C., seeking to raise additional Substantial Questions of

    Law in the Second Appeal.

    9. Heard the learned Counsel appearing for the appellants and the learned

    Counsel appearing for the respondents and perused the materials available on

    record.

    10. In the above petition, the appellants seek permission to raise six

    additional substantial questions of law. At the outset, it is to be noted that the

    Second Appeal, though pending since 2022, has not yet been admitted and no

    substantial question of law has been formulated by this Court under Section

    100(4) of the Code of Civil Procedure. It is well settled that additional substantial

    questions of law can be considered only after the Court has framed the original

    7/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    substantial question(s) of law at the stage of admission. In the absence of such

    admission and formulation, the question of entertaining a petition to raise

    additional substantial questions of law does not arise. In the present case, when

    the Second Appeal itself is yet to be admitted and no substantial question of law

    has been framed, the petition seeking to raise additional substantial questions of

    law, that too after a lapse of more than three years, is clearly misconceived.

    Accordingly, this Court holds that the petition is not maintainable and the same is

    liable to be dismissed.

    11. At the outset, it is necessary to refer the mandate of Hon’ble Supreme

    Court for High Courts in deciding the second appeal under Section 100 of the

    Civil Procedure Code, given in the case of Gurnam Singh (dead) by LRs., and

    others Vs. Lehna Singh (dead) by LRs., reported in AIR 2019 SC 1441, that the

    jurisdiction of the High Court in an appeal under Section 100 of the Code of Civil

    Procedure is strictly confined to the case involving substantial question of law

    and the relevant passage is extracted hereunder:

    “18. Before parting with the present judgment, we remind the
    High Courts that the jurisdiction of the High Court, in an appeal
    under Section 100 of the CPC, is strictly confined to the case
    involving substantial question of law and while deciding the second
    appeal under Section 100 of the CPC, it is not permissible for the

    8/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    High Court to re-appreciate the evidence on record and interfere
    with the findings recorded by the Courts below and/or the First
    Appellate Court and if the First Appellate Court has exercised its
    discretion in a judicial manner, its decision cannot be recorded as
    suffering from an error either of law or of procedure requiring
    interference in Second Appeal. We have noticed and even as
    repeatedly observed by this Court and even in the case of Narayanan
    Rajendran v. Lekshmy Sarojini
    , (2009) 5 SCC 264, despite the catena
    of decisions of this Court and even the mandate under Section 100 of
    the CPC, the High Courts under Section 100 CPC are disturbing the
    concurrent findings of facts and/or even the findings recorded by the
    First Appellate Court, either without formulating the substantial
    question of law or on framing erroneous substantial question of
    law.”

    12. The Hon’ble Supreme Court in the case of Chandrabhan Vs. Saraswati

    and others reported in 2022 SCC OnLine SC 1273 has specifically held that right

    of appeal is not automatic and right of appeal is conferred by statute and when

    statute confers a limited right of appeal restricted only to cases which involve

    substantial questions of law, it is not open to the High Court to sit in appeal over

    the factual findings arrived at by the First Appellate Court and the Hon’ble

    Supreme Court summarized the principles relating to Section 100 C.P.C., which

    are as follows;

    9/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    “(i) An inference of fact from the recitals or contents of a
    document is a question of fact. But the legal effect of the terms of
    a document is a question of law. Construction of a document
    involving the application of any principle of law, is also a
    question of law. Therefore, when there is misconstruction of a
    document or wrong application of a principle of law in
    construing a document, it gives rise to a question of law.

    (ii) The High Court should be satisfied that the case involves a
    substantial question of law, and not a mere question of law. A
    question of law having a material bearing on the decision of the
    case (that is, a question, answer to which affects the rights of
    parties to the suit) will be a substantial question of law, if it is not
    covered by any specific provisions of law or settled legal
    principle emerging from binding precedents and involves a
    debatable legal issue. A substantial question of law will also arise
    in a contrary situation, where the legal position is clear, either on
    account of express provisions of law or binding precedents, but
    the court below has decided the matter, either ignoring or acting
    contrary to such legal principle. In the second type of cases, the
    substantial question of law arises not because the law is still
    debatable, but because the decision rendered on a material
    question, violates the settled position of law.

    10/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    (iii) The general rule is that the High Court will not
    interfere with findings of facts arrived at by the courts below. But
    it is not an absolute rule. Some of the well-recognised exceptions
    are where (i) the courts below have ignored material evidence or
    acted on no evidence; (ii) the courts have drawn wrong inferences
    from proved facts by applying the law erroneously; or (iii) the
    courts have wrongly cast the burden of proof. When we refer to
    “decision based on no evidence”, it not only refers to cases where
    there is a total dearth of evidence, but also refers to any case,
    where the evidence, taken as a whole, is not reasonably capable
    of supporting the finding.”

    13. Bearing the settled legal position in mind, let us proceed with the

    present case.

    14. The three items of Nanja lands measuring 88 cents in Re.Survey No.

    258/4, 51 cents in Re.Survey No.263/1 and 21 cents in Re.Survey No.273/8

    totallying 1.60 acres in Krishnapuram Village, Kumbakonam taluk are shown as

    the suit properties. It is not in dispute that the suit properties were originally

    owned by one Hamida Beevi, that the defendants’ father Sambantham Padayatchi

    was inducted as a cultivating tenant under the said Hamida Beevi in respect of the

    suit properties and that the name of Sambantham Padayatchi came to be entered

    11/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    into cultivating tenants’ register. It is also not in dispute that the plaintiff

    purchased the suit properties on 05.09.2001, vide Exs.A.1 and A.2 sale deeds.

    15. It is the specific case of the plaintiff that, even prior to the execution of

    the sale deeds, she had entered into two agreements with Sambantham

    Padayatchi, dated 01.02.1996 and 16.08.1999, marked as Exs.A.4 and A.5

    respectively, under which she claims to have acquired leasehold rights from

    Sambantham Padayatchi for valuable consideration, and that she has been in

    possession and enjoyment of the suit properties ever since. Admittedly, Exs.A.4

    and A.5 are unstamped and unregistered documents. As rightly contended by the

    learned counsel for the defendants, the learned trial Judge overruled the

    objections raised with regard to the admissibility of the said documents and

    proceeded to rely upon them. However, the learned first appellate Judge, on a

    proper appreciation of the nature of the documents, and upon noting that they are

    insufficiently stamped under the Indian Stamp Act and unregistered as required

    under the Registration Act, has rightly held that the said documents are

    inadmissible in evidence and cannot be relied upon either for the main purpose or

    even for any collateral purpose.

    12/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    16. As already pointed out, it is the specific case of the plaintiff that she

    purchased the suit property from the original owner and after obtaining the

    possession of the suit properties from the cultivating tenant Sambantham

    Padayatchi, she has been in possesson and enjoyment of the suit properties and

    that since there was an attempt to interfere with her possession, the above suit

    claiming permanent injunction came to be filed. It is the specific defence of the

    defendants that their father Sambantham Padayatchi was a registered cultivating

    tenant and after his demise, the defendants 1 and 2 have been cultivating the suit

    properties and that since the plaintiff has never been in possession and enjoyment

    of the suit properties, the suit is liable to be dismissed.

    17. The plaintiff has produced patta pass book under Ex.A.7, kists receipts

    under Ex.A.6, agricultural loan waiver certificate under Ex.A.8, receipts for

    purchase of agricultural fertilizers under Ex.A.9, crop insurance scheme amount

    credit receipt under Ex.A.10, Aaruran Sugar Mills sugarcane amount distribution

    list under Ex.A.11 and the certificate issued by the Village Administrative Officer

    under Ex.A.12. As rightly pointed out by the learned Counsel for the plaintiff,

    the plaintiff summoned and examined the Village Administrative Officer who

    issued Ex.A.12 as P.W.6, as she deposed that after enquiring the Village workers

    and on perusal of the records available, she issued Ex.A.12 certificate. Moreover,

    13/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    the plaintiff through witnesses produced an application for loan submitted to

    Kumbakonam Central Co-operative Bank under Ex.x.1 and the copy of the said

    bank’s loan ledger under Ex.X2. The trial Court as well as the first appellate

    Court, considering the above documentary evidence along with oral evidence of

    other witnesses, have come to a finding that the plaintiff has proved his

    possession of the suit properties.

    18. The defendants have produced the copies of the registers relating to the

    agricultural loan availed by the defendants from Krishnapuram Primary

    Agricultural Cooperative Society under Exs.X.3 to X.5 and except the above

    documents, the defendants have not produced any iota of materials to substantiate

    their case. No doubt, since the plaintiff has come forward with the suit claiming

    permanent injunction, the plaintiff is duty bound to prove her case and she cannot

    be allowed to succeed in the suit by taking advantage of the loopholes in the

    defence. In the present case, as already pointed out, the Courts below have

    specifically held that the plaintiff has discharged his initial burden of proving the

    possession over the suit properties. As rightly contended by the learned Counsel

    for the plaintiff, since the defendants have taken a stand that after the demise of

    their father, they have been cultivating the suit properties, the burden now gets

    shifted to them to prove that they have been in possession and enjoyment of the

    14/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    suit properties since the death of their father.

    19. At this juncture, it is necessary to refer the decision of the Division

    Bench of this Court in Venkataswami Reddiar and another Vs.

    Sundaramoorthy reported in AIR 1972 Mad 171, wherein this Court has held

    that a person claiming to be a cultivating tenant must establish that some one in

    their family has been contributing their physical labour in the cultivation of the

    land and the relevant passages are extracted hereunder:

    “4. But, the learned Counsel for the appellants contends that the
    defendant’s father was a cultivating tenant under the Act and that
    therefore his heirs would automatically become cultivating tenants
    and that they need not satisfy the test of ‘contributing physical
    labour in the cultivation.’ Assuming that the defendant’s father was a
    cultivating tenant there is no warrant for this contention in the clear
    language of the provisions of the Act. In our opinion, the definition
    of “cultivating tenant”, with reference to the heirs, could be
    paraphrased as follows: “Cultivating tenant, in relation to any land,
    means a person or the heirs of such person, who carried or personal
    cultivation on such land under a tenancy agreement express or
    implied.” It is therefore clear that the heirs of the original tenants
    should also satisfy the test of personal cultivation, if they want to
    claim the benefits of the Act. The object of the enactment also does

    15/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    not lend support to the contention of the appellants. It is also seen
    from the decision of the Supreme Court in Sudalaimuthu S. N.
    Chettiar v. Palaniyandavan
    that before an heir can be given the
    benefit of the definition of “carry on personal cultivation”, it is
    necessary for him to establish that some one is contributing his
    physical labour in the cultivation of the land and that that someone
    is a member of his family. We have, therefore, no doubt that the
    defendant’s are not cultivating tenants within the meaning of the Act.

    5. In view of our finding that the defendants are not cultivating
    tenants within the meaning of the Act and that they are not entitled
    to the benefits of that Act, the other points that have been decided by
    the lower Court do not arise.”

    20. The learned Counsel would also rely on a decision of this Court in

    E.K.M.G.Bakir Ali Vs. G.Sundarraj and others reported in 2011(2) MWN

    (Civil) 754, wherein also it was reiterated that to hold that a particular individual

    is a cultivating tenant, it shold be proved that there was physical contribution of

    labour in raising crops in the property and the relevant paragraphs are extracted

    hereunder:

    “14. If at all a person, as a tenant, has been cultivating a land for a
    decade or so, certainly there would be some records, which would
    enable him to prove before the court objectively that he cultivated the
    said piece of land. But in this case, the plaintiffs could not produce

    16/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    any such evidence.

    15. Indubitably and indisputably, for the said 10 years period, no rent
    was paid by the plaintiffs, who claim to be the cultivating
    tenants/tenants under the admitted land owners, viz., the defendants.

    16. The law is clear on the point that a tenant is expected to pay the
    rent to the landlord and if there is refusal or even if there is any
    dispute relating to the rent, it is for the tenant to deposit it with the
    revenue authority concerned under the Tamil Nadu Cultivating
    Tenants Protection Act
    or the court under the general civil law. But, in
    this case, no such event occurred at all. If really for 10 years, the
    plaintiffs had been cultivating the said land, then the defendants would
    not have kept quiet without even demanding for rent. The plaintiffs
    also could not have continued in possession for 10 years without
    paying rent.

    17. I hark back to the legal adage “Preponderance of probabilities
    would govern the adjudication in civil cases”; here, those
    preponderance are in favour of the defendants and not in favour of the
    plaintiffs.

    18. The learned counsel for the plaintiffs would place reliance on the
    adangal records, viz., Exs.B3 to B13 and point out that no steps have
    been taken by the defendants to get mutated the said adangal by
    getting deleted the phrase “lease hold cultivation” and that itself is
    indicative of the fact that in reality, the defendants have not been in
    possession.

    19. I would like to point out that in the adangal records, there is no
    specification of any tenant’s name. What is found mentioned therein is

    17/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    the phrase “lease hold cultivation”. However, one other important
    point should be noted that no where it is found stated that a particular
    kind of crop was cultivated during the said long 10 years’ period.

    However, anterior to that, so to say, during the year 1993, in the
    adangal pertaining to the said land, it is found specified that Turmeric
    crop was cultivated therein. After 1993, that is to say, after the death
    of the cultivating tenant-Ganapathy Thevar, were there any cultivation
    continued, certainly that would have found place in the adangal. The
    plaintiffs while vociferously finding fault with the defendants for
    having not taken steps to get mutated the revenue records, have
    forgotten as to why they had not taken such steps to get incorporated
    their names in such records including the crops, which they allegedly
    cultivated in the suit property. As such, the plaintiff cannot approbate
    and reprobate and blow hot and cold. The adangal extracts, which the
    plaintiffs tried to place reliance bespeak against them. Both the courts
    below without au fait with law and au courant with facts, simply
    proceeded on the footing that the plaintiffs being the sons of deceased
    Ganapathy Thevar should be taken as the ones continuing in
    possession of the suit property.

    20. The learned counsel for the defendant would invite the attention of
    this court to the depositions of PWs.1 and 2 and point out that PW1
    happened to be the third son of deceased Ganapathy Thevar and PW2
    is none but the close relative of PW1 and their evidence is nothing but
    their ipse dixit, which in no way throws light on the issue relating to
    possession. As claimed by PW1 were there any such physical
    contribution of labour by the plaintiffs in raising crops, then

    18/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    necessarily there would have been some documents in their favour. But
    no such document is available. The averments on plaintiffs’ side are
    nothing but a load of baloney, which fails to carry conviction with this
    court.

    27. My mind is reminiscent and redolent of the maxim “In re dubia
    magis infitiatio quam affirmatio intelligenda [In a doubtful matter, the
    negation is to be understood rather than the affirmation]. But in this
    case, I could see no such reliable piece of evidence. Both the courts
    below misunderstood the gamut of the case and they proceeded on the
    mere assumption having no legs to stand that Ganapathy Thevar was
    the cultivating tenant and the plaintiffs being the sons should be
    presumed to have been in possession and enjoyment of the suit
    property. In my considered opinion, such a finding is not legally
    acceptable.

    28. En passante, at this juncture, it would not be out of context to refer
    to some other more or less similar laws prevailing in some part of
    India other than Tamil Nadu; in those legislations, there are express
    provisions to the effect that there cannot be any resumption at all of a
    lease hold land by the land owner except through the intervention of
    the revenue authority; but in the Tamil Nadu Act, even though there
    are provisions for such resumption through Revenue authorities by
    citing and proving legal grounds, yet there is no legal embargo to the
    effect that even if there is any voluntary abandonment or surrender of
    the lease hold land, yet the landlord should not take possession of it.
    ………….

    Those decisions would exemplify and demonstrate that in order to

    19/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    hold that a particular individual is a cultivating tenant, the individual
    should prove that there was physical contribution of labour in raising
    crops in the property concerned. There is no quarrel over such a
    proposition.”

    21. In Chinnaponnu (died) and others Vs. Mamundiand others reported

    in (2021)1 MWN (Civil) 595 relied on by the learned Counsel for the plaintiff,

    this Court has held that unless the appellants’ name are recorded under Section 4

    of the Act 10 of 1969, they cannot be considered as cultivating tenants and the

    relevant passages are extracted hereunder:

    “15. Perusal of the entire written statement, it is made clear that
    except stating that the appellants are cultivating tenants and they are
    entitled to the benefits under the Act, no other pleadings whatsoever
    had been made as to the nature of the exercising the said right. The
    entire written statement when perused, except denial of the facts,
    which is in evasive nature, no specific denial is made. 16. Be that as it
    may, though the plaintiff in O.S. No. 2094 of 1993 claims to be a
    tenant, no documents whatsoever had been filed before the trial Court
    to show that the lands are cultivable and the appellants have the
    benefits from the lands. Further, no proof had been filed to show that
    the agricultural produce had been sold by plaintiff and her name had
    been included in the Tamil Nadu agricultural Lands Records under
    the Act 10 of 1969. It is to be noted that under Section 4 of the Act 10
    of 1969, the tenants having interest in the land, in which they are

    20/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    cultivating shall make an application to the Record Officer for
    inclusion of the said lands in the approved record of tenancy rights.
    No such application was made under Section 4 of the Act 10 of 1969
    to contend that her tenancy has been recognized under the statute. If
    such right was recognized, the person became statutorily a tenant. In
    such case, it is always open to the tenants to pay the rent regularly.
    No such rents whatsoever had been paid in this case. 17. Therefore,
    This Court is of the view that unless appellants’ name are recorded as
    tenant under Section 4 of the Act 10 of 1969, they cannot be
    considered as cultivating tenant, merely on the basis of some
    documents namely, lease deeds said to have been executed in their
    favour. Admittedly, those documents also came to be executed as a
    result of fiduciary relationship and active confidence as discussed
    above. Therefore, merely on the basis of such documents, one cannot
    claim right as tenant without registering himself under Section 4 of
    the Act 10 of 1969.

    18. Besides, even under Section 14 of the Tamil Nadu Cultivating
    Tenant Protection Act, if really the appellants are stated to be a
    cultivating tenant, three copies of the lease deeds ought to have been
    prepared in the prescribed form within a reasonable time after the
    commencement of such tenancy, specifying the name and description
    of the cultivating tenant, the name (if any) survey number. One of the
    three copies shall be kept by the landlord, one shall be kept by the
    cultivating tenant and the third shall be caused to be lodged in the
    Taluk Office/Revenue Divisional Officer by the landlord or his agent
    within a fortnight of the date on which the cultivating tenant signs it.

    21/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    This procedure is also not done in this case.

    19. All these facts clearly show that the contention of the appellants
    that they are the cultivating tenants is nothing but an attempt to squat
    on the property forever.”

    22. In the present case, it is not the stand of the defendants that their names

    were entered in the Cultivating Tenants Register subsequent to the demise of their

    father. It is also not their case that they had applied for substitution of their names

    in the said register and that such application is pending before the competent

    authority. As rightly observed by the Courts below, the defendants have not stated

    as to in what manner they have been cultivating and enjoying the suit properties,

    what crops were raised, or where the harvested produce was taken or sold.

    Significantly, there is no whisper regarding payment of lease rent. It is not their

    case that they paid lease amount either to the plaintiff or to the original owner,

    Hamida Beevi, or her legal representatives. Nor have the defendants 1 and 2

    asserted that they were carrying on personal cultivation by contributing their own

    physical labour.

    23. As rightly contended by the learned counsel for the plaintiff, the

    22/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    evidence of D.W.1 and D.W.3 clearly indicates that the first defendant (D.W.1)

    has been employed as a salesman in Prasanna Stores, Kumbakonam, for about 15

    years, and the second defendant (D.W.3) has also been working as a salesman in a

    private concern for a similar period. The defendants have not adduced any

    evidence to show that they or their family members were engaged in the

    cultivation of the suit properties by deploying their physical labour. Even D.W.1

    has admitted that no steps were taken to have their names entered in the relevant

    revenue records, and that no documents have been produced to establish payment

    of lease rent or any effort taken in that regard. In view of the above, the Courts

    below have rightly concluded that the defendants have miserably failed to

    establish that they were in cultivation and enjoyment of the suit properties as

    cultivating tenants.

    24. The learned Counsel for the defendants placed reliance on the decision

    of the Hon’ble Supreme Court in Thimmaiah Vs. Shabira and Others reported in

    (2008)4 SCC 182 and contended that in as much as the defendants have denied

    the possession of the plaintiff and the plaintiff not being in possession, ought to

    have sought for the relief of recovery of possession and not a mere injunction.

    The learned Counsel relied on the following paragraph from the said judgment:

    23/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    “10. Undisputedly, the suit was one for permanent injunction and in
    such a suit the plaintiff has to establish that he is in possession in
    order to be entitled to a decree for permanent injunction. The
    general proposition is well settled that a plaintiff not in possession
    is not entitled to the relief without claiming recovery of possession.
    Before an injunction can be granted it has to be shown that the
    plaintiff was in possession.”

    25. In the above decision, it has been specifically clarified that only in case

    when the plaintiff is not in possession, is duty bound to seek the relief of recovery

    of possession. The learned Counsel would also rely on a decision of the Hon’ble

    Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (dead) by LRs and

    others reported in (2008)4 SCC 594, wherein the Hon’ble Supreme Court

    summarized the principles with regard to the suits for prohibitory injunction

    relating to immovable properties and the first principle which is relevant to the

    present case is extracted hereunder:

    “…….

    Where a cloud is raised over plaintiff’s title and he does not have
    possession, a suit for declaration and possession, with or without a
    consequential injunction, is the remedy. Where the plaintiff’s title is

    24/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    not in dispute or under a cloud, but he is out of possession, he has to
    sue for possession with a consequential injunction. Where there is
    merely an interference with plaintiff’s lawful possession or threat of
    dispossession, it is sufficient to sue for an injunction simpliciter.”

    26. The above principle is squarely applicable to the case on hand and

    since there is no cloud raised over the plaintiff’s title and also the fact that the

    Courts below have rendered a concurrent finding that the plaintiff is in

    possession, claiming declaration or recovery of possession does not arise. Since

    there was an interference, as per the above principle, the suit for bare injunction

    is perfectly maintainable.

    27. It is settled law of jurisprudence that the standard of proof required for

    establishing a fact in civil proceedings is that of a preponderance of probabilities

    and not proof beyond reasonable doubt. The Court is required to assess the entire

    evidence on record to determine as to whether the existence of a particular fact is

    more probable than its non-existence.

    28. In Rattan Singh v. Nirmal Gill, reported in (2024) 2 SCC 630, the

    Hon’ble Supreme Court has reiterated that the standard of proof in civil cases is

    25/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    that of preponderance of probabilities, and that the Court is required to determine

    the rights of the parties by assessing which of the rival versions appears more

    probable on the materials available on record. It has further been held that, while

    exercising jurisdiction under Section 100 of the Code of Civil Procedure, this

    Court would not ordinarily re-appreciate the evidence merely because another

    view is possible. However, if the findings of the Courts below are vitiated by

    misreading of evidence, non-consideration of material evidence, or application of

    an erroneous standard of proof contrary to the test of preponderance of

    probabilities, such findings would be rendered perverse, thereby giving rise to a

    substantial question of law warranting interference in a Second Appeal.

    29. In the present case, the learned trial Judge, upon a proper appreciation

    of the oral and documentary evidence available on record, has rendered a

    categorical finding that the plaintiff has established her possession and enjoyment

    of the suit properties. The said findings were independently re-appreciated by the

    learned first appellate Judge, who concurred with the conclusions of the trial

    Court and held that the plaintiff was in possession and enjoyment of the suit

    properties as on the relevant date and was, therefore, entitled to the relief of

    permanent injunction. Thus, both the Courts below have concurrently recorded

    26/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    findings of fact regarding the plaintiff’s possession, based on a proper

    appreciation of evidence.

    30. As already pointed out, the appellants/defendants have not

    demonstrated that the concurrent findings of the Courts below suffer from any

    perversity, illegality, or misreading of evidence warranting interference by this

    Court. On a careful perusal of the judgments of the Courts below, and as rightly

    contended by the learned counsel for the plaintiff, no question, much less any

    substantial question of law, arises for consideration in this Second Appeal.

    Accordingly, this Court holds that the Second Appeal is liable to be dismissed.

    Considering the facts and circumstances of the case, the parties are directed to

    bear their own costs.

    31. In the result, the Second Appeal is dismissed, confirming the judgment

    and decree made in A.S.No.71 of 2018, dated 28.03.2022, on the file of the

    Principal Subordinate Court, Kumbakonam, confirming the judgment and decree

    passed in O.S.No.3 of 2014, dated 09.07.2018, on the file of the Principal District

    Munsif Court, Kumbakonam. The Civil Miscellaneous Petition in

    27/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    C.M.P(MD)No.4629 of 2025 is also dismissed. The parties are directed to bear

    their own costs.

    27.02.2026

    NCC :Yes/No
    Index :Yes/No
    Internet : Yes/ No

    SSL

    To:

    1. The Principal Subordinate Court, Kumbakonam.

    2. The Principal District Munsif Court, Kumbakonam.

    3. The Section Officer,
    VR Section,
    Madurai Bench of Madras High Court,
    Madurai.

    28/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )
    S.A(MD)No.502 of 2022

    K.MURALI SHANKAR,J.

    SSL

    PRE-DELIVERY JUDGMENT MADE IN
    S.A.(MD).No.502 of 2022

    27.02.2026

    29/29

    https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2026 01:19:45 pm )



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here