KAMALAMBAL Vs. RAJALAKSHMI AMMAL

JUDGEMENT

(1.) THIS Second Appeal is preferred from the Judgment and decree of the learned Subordinate Judge, Kumbakonam made in A.S. No. 61 of 1989, dated 9.2.1990 confirming the judgment and decree of the learned District Munsif, Kumbakonam made in O.S. No. 1 of 1985, dated 31.8.1989.

(2.) THE respondent herein filed a suit for recovery of possession of the suit mentioned immovable properties with the following averments. THE plaintiff was the lessee of R.S. No. 17/1, Nanja 1.01 cents in Thathuvancheri Village, which belonged to the Tirupanandal Kasi Mutt. THE plaintiff usufructuary mortgaged the suit property to the defendant for Rs. 600/- with a condition that whenever the plaintiff pays the principal to the defendant, the defendant should deliver the possession of the properties. THE defendant had also agreed to pay the rent to the plaintiff and the plaintiff will pay the same to the Tirupanandal Kasi Mutt. But the defendant did not pay the amount. THE plaintiff had to pay the amount to the Tirupanandal Kasi Mutt. So, for the loss sustained by the plaintiff, the plaintiff filed a suit in O.S. No. 116/76 and the suit was decreed. THE defendant filed a suit for the recovery of amount paid by her in O.S. No. 496 of 1973. To the amount, she filed an Execution petition in E.P. No. 214 of 1982 in O.S. No. 496 of 1973 and the plaintiff filed an Execution petition in O.S. No 116 of 1976 in E.P. No. 62/82. THE amount payable by the defendant was adjusted towards the amount payable to the plaintiff. So the amount paid by the defendant for the enjoyment of the property has been discharged fully. As per the agreement, the defendant should automatically redeliver possession of the property. THE defendant was not entitled to continue in possession of the suit property. Hence, the plaintiff filed a suit for recovery of possession of the suit mentioned immovable property.

(3.) COUNTERING to the above contentions of the appellant's side, the learned counsel for the respondent would urge that the respondent/plaintiff was a lessee in respect of the suit mentioned Nanja land, which belonged to Tirupanandal Kasi Mutt; that the respondent executed a usufructuary mortgage with respect to the suit property in favour of the defendant for Rs. 600/- with a condition that whenever the respondent/plaintiff paid the principal to the appellant, she should deliver the possession of the properties; that though the appellant had agreed to pay the rent to the respondent, she did not pay any amount but the respondent was however to pay the amount to the owner, namely, Tirupanandal Kasi Mutt. Under such circumstances, the plaintiff was constrained to file a suit in O.S. 116/76 and the same was also decreed; that the appellant has also filed a suit for recovery of amount paid by her in O.S. No. 496/73; that in order to recover the same, the appellant filed E.P. 214/82 in O.S. No. 496/73 and the respondent filed E.P. 62/82; that it is pertinent to note that the amount payable by the parties under the decrees were adjusted and thus, the amount paid by the appellant for the enjoyment of the property has been fully discharged and under such circumstances, the appellant, who was bound to redeliver the possession of the property, has been continuing in illegal possession and has put forth an unsustainable defence that she was recorded as cultivating tenant by the Record of Tenancy Officer and hence she could not be evicted; that the appellant could neither call herself as cultivating tenant nor was she entitled to the protection in respect of the possession as contemplated under the Act; that both the Courts have a thorough analysis of the legal position in that regard and have arrived at a correct conclusion that the appellant could not get the benefit under the provisions of the Tamil Nadu Cultivating and Tenancy Protection Act and that even assuming the appellate was so recorded, it has not become final. In view of the abovestated circumstances, the judgment of both the Courts below have got to be confirmed and the appeal has got to be dismissed.