AMIRTHALINGA PANDARATHAR Vs. KESAVACHARIAR

JUDGEMENT

(1.) THE defendants are the appellants. The suit was for possession and past and future mesne profits. The facts leading to this appeal are. The properties in plaint a and B schedules in Maduranthaganallur belong to the plaintiff who was cultivating the same personally. Under the original of Ex. A-1, registration copy of the mortgage deed, dated 2-9-1962, he usufructuarily mortgaged the A schedule properties consisting of three items, measuring 1. 93 acres, to his sister thangammal of Kammapuram, 16 miles away from the suit village. The first defendant who was working as kariasthar under the plaintiff and whose services were terminated in the beginning of 1962 due to faction in the village took the lands usufructuarily mortgaged to the sister of the plaintiff, viz, the A schedule lands, on lease, and cultivated the same. Then he trespassed into the B schedule lands taking advantage of the fact that he was a lessee of the A schedule lands. The said usufructuary mortgage was discharged on 3-10-1965 but the first defendant who was cultivating the lands of the A schedule as lessee under the usufructuary mortgagee and the B schedule lands as trespasser did not surrender possession of the land to the plaintiff in spite of notice, claiming that he was a cultivating tenant under him in respect of the third item in the A schedule, i. e. , 72 cents, having taken it on waram seven years prior to the issue of the notice under ex. A-2 dated 31-10-1966. The second defendant claimed to be the cultivating tenant of the remaining two items in the A schedule, i. e. , item 1 and 2, measuring 2. 21 acres, and the only one item in the B schedule measuring 99 cents since 1961, having taken it on waram from the plaintiff in fasli 1370. The plaintiff denied the claims of the defendants that they were cultivating the lands under him on waram basis or otherwise, and stated that he was entitled to possession of the suit properties.

(2.) THE trial Court found that the first defendant was cultivating the A schedule properties under the mortgagee, Thangammal, that he was not cultivating item 3 of the A schedule under any tenancy agreement, under the plaintiff from fasli 1369 onwards on waram basis, that the 2nd defendant was not cultivating item 1 and 2 of the A schedule and the B schedule property under tenancy agreement with the plaintiff from fasli 1370 on waram basis, that there was no arrangement between the plaintiff and defendants, that the defendants were not cultivating tenants entitled to the benefits of Act XXV of 1955, that the Court of the District Munsif, chidambaram, had jurisdiction to try the suit, and that the plaintiff was entitled to possession of the properties with past mesne profits of Rs. 2232. In that view, it decreed the suit as prayed for relegating the question of quantum of future mesne profits for decision in separate proceedings.

(3.) THE defendants preferred an appeal to the Sub Court, Chidambaram. The appellate Court, after elaborately discussing the evidence on record, found that the first appellant took the A schedule properties on lease from the usufructuary mortgagee, Thangammal, and that he did not trespass into the B schedule property thus, the lower appellate court came to the conclusion that since the first appellant is not the waramdar under the respondent, he was a trespasser in respect of 73 cents, of land in the third item of the A schedule, with the result it confirmed the judgment and decree of the trial court. Even though the lower appellate court found that the first appellant did not trespass into the B schedule property, it held that the first appellant is liable for mesne profits even in respect of the B schedule property.