GNANASOUNDARAPANDIAN Vs. THOMAS NADAR

JUDGEMENT

(1.) THIS second appeal has been filed by the plaintiff in O.S. No. 29 of 1978 in the Court of the District Munsif of Thiruvai-yaru. He has been unsuccessful throughout. The suit properties measuring 9.28 acres are situate in Keeraikollai Vattam within the Municipal limits of Thanjavur Town. It is not in dispute that these properties belong to the plaintiff. He and his brother executes' a mortgage over those and other properties in favour of one Ramanathan Chettiar of Karai-kudi on 6th July, 1967, as security for a loan of Rs. 55,000. The mortgagee assigned his interest by a registered assignment dated 2nd September, 1972, in favour of defendants 1 and 2, who are husband and wife respectively. The plaintiff's case was that on the same day, he entered into an oral arrangement by which the defendants were to be in possession of the suit properties for a period of three years, so that the income from the properties could be adjusted against the loan. After the said period of three years it was stated that possession was to be surrendered to the plaintiff. One of the items of properties viz., Item No. 2, is a cocoanut thope. The possession would, therefore, have to be surrendered by 2nd September, 1975. According to the, plaintiff, it was actually so surrendered. But on 5th May, 1976, defendants 1 and 2 and their agent, the third defendant, prevented him from harvesting the crops. Though originally he came forward with the suit for permanent injunction, subsequently he amended the plaint to the effect that even if the Court found that the plaintiff was not in possession of the suit properties on the date of the suit, the defendants may be directed to deliver the suit properties to the plaintiff.

(2.) IN the written statement, while admitting that there was an assignment of the mortgage in favour of defendants 1 and 2, the plea taken was that on 17th April, 1973, possession was handed over to the first defendant under Exhibit B-l, an unregistered lease deed. The plea was that the first defendant was a cultivating tenant and that he could not be evicted from the properties. It was also pleaded that the civil Court has no jurisdiction to go into the question of possession in the hands of a cultivating tenant.

(3.) ON appeal by the plaintiff, the learned Subordinate Judge of Tharijavur was also of the opinion that the lease deed Exhibit B-1 was not brought into existence by any fraud, coercion or under influence, that it was valid and that the defendants were in possession of the properties. Even if the first defendant was taken to be a cultivating tenant and even if he was not entitled to the benefit of the Tamil Nadu Cultivating Tenants' Protection Act, the lease in his favour had not been properly terminated under section 106 of the Transfer of Property Act, so that the suit was liable to be dismissed. The appeal was accordingly dismissed.