A. ARUNACHALAM PILLAI Vs. SRI MAYURANATHASWAMY TEMPLE, MAYURAM BY ITS SOLE AND HEREDITARY, TRUSTEE SRI-LA-SRI AMBALAVANA PANDARASANNADHI AVARGAL, ADHEENA KARTHAR, THIRUVADUTHURAI ADHEENAM

JUDGEMENT

(1.) THE first defendant in O.S. No. 114 of 1973 on the file of the Court of the Subordinate Judge of Mayuram, is the appellant. The respondent herein, Sri Mayuranathaswamy Temple, Mayuram, by its sole and Hereditary Trustee, Sri -la -Sri Ambalavana Pandarasannadhi Avargal, Adheenakarthar, Thiruvaduthurai Adheenam, instituted the suit against the appellant and one Kandaswamy Pillai, the second defendant in the suit, for recovery of possession of the suit property and a sum of Rs. 7,500 towards, past damages for three years and for future damages. The case of the respondent is that the suit property, marked as A B C D E F G in the sketch attached to the plaint, belongs to it and is a cocoanut tope of an extent of 4 acres and 25,465 sq. ft. and known as Sami Naicken Tope. The tope is said to contain 282" cocoanut trees besides two mango trees and a number of iluppai trees. The respondent used to lease out the usufruct of the trees periodically in open auction and the last occasion when the tope was leased out was on 1st : August, 1956. The second defendant participated in the auction and was declared the highest bidder and the tope was leased out to him for an annual lease of Rs. 1,032 for a period of three years. As per the terms of auction, the second defendant was bound to execute a lease deed, but the second defendant got into possession of the tope without executing any lease deed. He fell into arrears of lease for three faslis upto to fasli 1368 and for recovery of the lease arrears the respondent filed a suit, O.S. No. 32 of 1960 on the file -of the Court of the District Munsif, Mayuram and obtained a decree and recovered the arrears of lease. Though the lease period expired after the lapse of three years, the second defendant continued to hold over possession of the tope. Hence from fasli 1369 onwards the second defendant was liable to pay damages for use and occupation of the tope and the total damages due from him till the end of fasli 1,382 came to Rs. 9,443. For the said period certain amounts were paid in part payment of damages. While so, the appellant, who has no right to enjoy the usufruct of the tope, had managed to gain possession and the respondent has reason to believe that the second defendant, who had gone away from Mayuram, should have allowed the appellant to be in possession of the tope as a care -taker. Having thus gained possession of the tope unlawfully, the appellant filed a petition in P. No. 276 of 1973 in the Revenue Court, Mayuram under Tamil Nadu Act XXI of 1972, and falsely claimed that he was a lessee or sub -lessee of the property and that he was contributing his personal physical labour for raising crops on the -land and hence he was entitled to the status of a cultivating tenant. Though the appellant is not entitled to be in possession of the tope or to claim the status of a cultivating tenant or invoke the aid of Act XXI of 1972, to perpetuate Ms unlawful possession of the property, yet to avoid unpleasant situations, the officers of the respondent have desisted from entering the land and demanding surrender of possession. On such averments, the respondent came forward with the suit for recovery of possession of the suit property and also for recovery of damages from the appellant and the second defendant for a period of three years at the rate of Rs. 2,500 per year and for future damages.

(2.) THE appellant filed a written statement and set out the defence that he and the members of his family are cultivating tenants and they have been contributing their own physical labour in the cultivation of the suit land and they have been raising plants and vegetables on the land besides growing trees like portia and drumstick. According to the appellant, when the Advocate -Commissioner appointed at the instance of the respondent inspected the suit property, he showed him the seed -beds prepared by him for growing vegetables like brinjal, lady's finger, avarai, snake -gourd, bitter gourd, etc., and the saplings of plants grown by him and also the areas where tapioca had been planted and paddy had been grown. It was not correct to say that only the right of, enjoyment of the usufruct of the cocoanut and other trees was leased out to the second defendant, but the lease was of a composite nature because there was no prohibition for raising crops in the suit property or the formation of a kitchen garden. Not only the trees on the land, but the land also was in the possession of the appellant as a cultivating tenant and hence no suit for recovery of possession or mesne profits could be filed against him. The further defence of the appellant was that in the survey number appended to the plaint and in the boundaries mentioned therein, there are a number of huts occupied by tenants who were also cultivating tenants and, as such, they should also have been impleaded as parties to the suit and the failure to implead them vitiated the suit for non -joinder of parties. The appellant alleged that the second defendant had nothing to do with the suit property and he alone was in possession as a cultivating tenant and he had been paying rents to the respondent and consequently, his status as a statutory cultivating tenant and his rights in law in accordance with that status should be recognised and upheld by the Court. Lastly, the appellant contended that the suit property would not yield crop of a value of Rs. 2,500 per annum and as such, the respondent was not justified in claiming damages at that rate. The appellant thus alleged that the suit was not sustainable and hence he prayed for its dismissal.

(3.) THE second defendant entered appearance through counsel, but failed to file any written statement and allowed himself to be set ex -parte, On the basis of the pleadings of the parties, the learned Subordinate Judge set for trial the following issues: