SIKKENDER ANEES Vs. VAIYALIMUTHU THEVAR

JUDGEMENT

(1.) THE petitioner who is the plaintiff in O.S.No.35 of 2003, on the file of the learned Additional Sub -Judge, Tenkasi, has come forward with this revision challenging the order dated 17.01.2006 made in I.A.No.641 of 2004. The respondents are the defendants in the suit.

(2.) THE petitioner has filed the above suit for recovery of a sum of Rs.2,00,000/ - with interest and costs. The substance of the plaint would be that on 01.01.2000, the petitioner entered into a lease agreement (Kuthagai) to enjoy the usufructs from the coconut trees belonging to the defendants for a period of 5 years. There is a specific allegation made in paragraph No.3 of the plaint that to evident the said lease, a lease agreement was executed on 01.01.2000 by the parties. It has been further stated in the plaint that as per the recitals of the said lease deed, a sum of Rs.4,00,000/ - shall be paid by the plaintiff to the defendants towards rent for 5 years. Already on 01.01.2000, itself a sum of Rs.1,00,000/ - was paid towards rent and there was also an arrangement regarding the balance of amount i.e., Rs.1,00,000/ - should be paid on 15th day of Tamil month Thai and Rs.2,00,000/ - should be paid within 1 1/2 years from 01.01.2000. Apart from that, as per the lease agreement, during every season, whenever the coconuts are plucked, 150 coconuts should be given to the defendants and maintenance of the land and irrigating the coconut trees should be undertaken by the petitioner/plaintiff. The petitioner can use the electric motor to irrigate the coconut trees from the well which is situated in the suit property till the expiry of period of lease agreement dated 01.01.2005. It has been further stated that as agreed upon the rent of Rs.4,00,000/ - was paid in four equal monthly instalments on the dates viz., 01.01.2000, 29.01.2000, 29.06.2001 and 11.09.2001 and due endorsements have been made on the rear side of the lease deed in acknowledgment of the said amount. It has been further stated that since there was no sufficient water in the well and since the defendants did not make any arrangement to deepen the well, the plaintiff could not irrigate the coconut trees and as a result, he suffered loss and therefore, by mutual agreement, the lease was terminated on 30.06.2002. Therefore, according to the plaintiff since, he did not enjoy the usufructs for the period of 5 years, as per the lease agreement, the defendants are liable to repay Rs.2,00,000/ -, which was paid under the lease agreement on various dates as stated above.

(3.) IN the written statement, the first defendant has admitted that such a right to enjoy the usufructs from the coconut trees for the period between 01.01.2000 to 01.01.2005, was given to the petitioner. But, he has denied the execution of the lease agreement. He has further disputed the claim of the petitioner that the defendants are liable to repay Rs.2,00,000/ -. The second defendant has filed a separate written statement wherein, he has disputed the payments said to have been made by the plaintiff on 01.01.2000, 29.01.2000, 29.06.2001 and 11.09.2001. Further, he has stated that the lease agreement dated 01.01.2000, was not executed by him consciously.