(Prayer: This Second Appeal is filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree passed by the Additional Subordinate Judge, Karur in A.S.No.28 of 2010, dated 06.08.2010, confirming the judgment and decree passed by the Additional District Munsif Court, Karur in O.S.No.390 of 2002, dated 29.06.2009 and allow this Second Appeal.)

1. This Second Appeal is preferred against the judgment and decree dated 06.08.2010 passed in A.S.No.28 of 2010 on the file of the Additional Subordinate Court, Karur, confirming the judgment and decree, dated 29.06.2009 passed in O.S.No.390 of 2002 on the file of the Additional District Munsif Court, Karur.

2. The first appellant is the defendant and the respondent is the plaintiff in O.S.No.390 of 2002 on the file of the Additional District Munsif Court, Karur. The respondent/plaintiff filed the suit for recovery of possession of the suit property and for mesne profits. Pending the second appeal, the original appellant died and his Legal Heirs have been impleaded as appellants 2 to 4.

3. For the sake of convenience, the parties are referred to as plaintiff and defendant in O.S.No.390 of 2002 on the file of the Additional District Munsif Court, Karur.

4. The Case of the plaintiff:

The plaintiff’s father, Ammaiyappa Gounder and his brother, Karuppanna Gounder, partitioned their family properties under a registered partition deed dated 19.09.1986. In that partition, the suit properties and other properties were allotted to the father of the plaintiff. The plaintiff purchased the suit properties from his father through a registered sale deed dated 14.09.1990, for due sale consideration and possession of the suit properties was also handed over to him. Since there was a misunderstanding, the plaintiff’s father left the family and started to live in the defendant’s house. To cause disturbance, the plaintiff’s father and the defendant colluded together and created a lease deed as if the defendant was inducted as lessee in the suit property. On that basis, the defendant filed a suit in O.S.No.735 of 1992 and an exparte decree came to be passed therein. As the plaintiff was suffering from ill-health, she filed the petition to set aside the decree with a delay condonation petition and the same was dismissed. Upon the exparte decree, the defendant trespassed into the suit property and is in possession of the same. There is no lease agreement between the defendant and the father of the plaintiff at any point of time. The defendant is an illegal trespasser. So, the plaintiff has laid the suit for recovery of possession and mesne profits from the defendant.

5. The Case of the Defendant:

The defendant is a cultivating tenant, and he was declared as such by the Tahsildar by his order dated 15.06.1992. The plaintiff filed an appeal in F.V.No.23 of 1992 to set aside the said order and the said appeal was dismissed on 11.07.1994. The plaintiff is the own sister of the defendant. At the time of marriage, the plaintiff executed a release deed relinquishing her share in the suit properties by receiving her share amount. On ill advise, the plaintiff tried to interfere with the possession of the defendant, and he filed the suit in O.S.No.735 of 1992 for an injunction and the same was decreed exparte. The plaintiff did not take steps to set aside the same. The defendant has been paying rent to the owner of the suit property, namely Ammaiyappa Gounder and thereafter, to his guardian, Lakshmi Ammal, to date. Such being the facts, the plaintiff has filed the suit in order to threaten and to gain possession of the property. The plaintiff has no cause of action.

6. The trial Court framed the following issues:

                     1)Whether the averment that the plaintiff was in possession of the suit property is false?

                     2)Whether the defendant had not illegally trespassed into the suit property?

                     3)Whether the defendant has to hand over possession to the plaintiff?

                     4) Whether the plaintiff is entitled to mesne profits?

                     5)To what other relief?

7. During trial, on the plaintiff's side, two witnesses were examined as P.W.1 & P.W.2 and Ex.A.1 & Ex.A.2 were marked. On the defendant's side, two witnesses were examined as D.W.1 and D.W.2 and 6 exhibits were marked as Ex.B.1 to Ex.B.6.

8. After hearing both sides, the learned Additional District Munsif, Karur, concluded that the plaintiff is entitled to relief of recovery of possession except a 3/8 share in Well & 5HP Motor in S.No.897/A and she was given liberty to file a petition for mesne profits by judgment dated 30.01.2006.

                     8.1. Aggrieved by the same, the defendant preferred an appeal in A.S.No.7 of 2007 before the District Court, Karur. The learned District Judge, Karur, allowed the appeal and remanded the case back to find out whether the defendant was inducted as a lessee either before the Ex.A.2 sale deed or after the said deed.

9. After remand, the trial Court has framed the following additional issues:

                     (1) Whether the lease entered into between the defendant and Ammaiyappa Gounder will bind the plaintiff?

                     (2) Whether the civil court has no jurisdiction to try the suit under section 6 of the Tamil Nadu Cultivating Tenants Protection Act 1955?

10. The trial Court heard both sides again and concluded that the lease agreement came to be executed after the Ex.A.2 sale deed and so, the trial court has jurisdiction to try the suit and decreed the suit directing the defendant to hand over possession within two months except 3/8 share in well and 5 HP Motor in S.No.897/A. Accordingly, a decree was passed by passing judgment and decree dated 29.06.2009.

11. Challenging the judgment and decree dated 29.06.2009 passed in O.S.No.390 of 2002, the defendant preferred the first civil appeal in A.S.No.28 of 2010 before the Additional Subordinate Court, Karur. The first Appellate Court, after hearing both sides, passed judgment dated 06.08.2010 dismissing the appeal in A.S.No.28 of 2010 and confirmed the judgment and decree of the trial court passed in O.S.No.390 of 2002.

12. Unsatisfied with the judgment and decree of the First Appellate Court, the defendant has preferred this second appeal and the same has been admitted on 02.06.2026 on the following substantial questions of law:-

                     (A)Whether the Courts below are correct in entertaining the civil suit in O.S.No.390 of 2002, when it was hit by the principle of res-judicata under Section 11 of the Code of Civil Procedure?

                     (B)Whether the Courts below are correct in saying that the defendant is the trespasser to the suit schedule property without considering the fact that already in the civil suit in O.S.No.735 of 1992, it was held that the defendant is the cultivating tenant in the suit schedule property?

                     (C)Whether the Courts below are correct in entertaining the civil suit in O.S.No.390 of 2002, when the civil suit is barred under Section 6 of the Tamil Nadu Cultivating Tenants Protection Act, 1955?

                     (D)Whether the Courts below are correct in deciding that the defendant is not a cultivating tenant, but the Tahsildar held that the defendant is a cultivating tenant in his proceedings in F.E.8/1992, dated 15.06.1992 under the Tamil Nadu Cultivating Tenants Protection Act, 1955?

13. The learned counsel for the first appellant/defendant has submitted that the suit property belonged to Ammaiyappa Gounder. The first appellant/defendant entered into a tenancy agreement with the said Ammaiyappa Gounder on 07.10.1989 and he was registered as a cultivating tenant as per order of the Tahsildar under Ex.B.6, dated 15.06.1992. Thereafter, as he was restrained from enjoying possession, the defendant filed an injunction suit in O.S.No.735 of 1992 against the plaintiff and her father, in which an ex parte decree was passed. The plaintiff did not take steps to set aside the same immediately, but she filed a delay condonation petition and it was dismissed and the same was upheld by this Court in a Civil Revision Petition. Hence, the present suit is hit by res judicata. Since the defendant is a cultivating tenant, the present suit before the civil Court is not maintainable U/s.6 of the Tamil Nadu Cultivating Tenants Protection Act 1955. The plaintiff is estopped from saying that the order of the Tahsildar is not binding on her because she did not file any appeal before the Revenue Divisional Officer to cancel the order of the Tahsildar. The plaintiff’s daughter, as P.W1 admitted the same. During pendency of the appeal, the defendant died and the Legal Heirs were added and they are contributing labour in the field. Therefore, the suit is hit U/s.6 of the Tamil Nadu Cultivating Tenants Protection Act 1955 and the second appeal may be allowed. In support of his contention, the learned counsel for the defendant relied on the ruling of this Court reported in 2015 (5) CTC 423 in the case of R.Venkatachalam and Others /v/ S.R.lakshmanan (Deceased) and Others.

14. Per contra, the learned counsel for the respondent/plaintiff has argued that there is no dispute that the plaintiff’s father was allotted the suit property under a partition deed dated 19.09.1986. It is the specific case of the plaintiff that she purchased the suit property from her father through a registered sale deed dated 14.09.1990. Earlier, the suit was decreed, on preferring an appeal by the defendant, the first Appellate Court remanded the case to find out whether the alleged cultivating tenancy right of the defendant had happened either prior to the Ex.A.2 sale deed or after the sale deed. The trial Court found that the defendant registered his cultivating tenancy on 15.06.1992, i.e., after the Ex.A.2 sale deed, and so decreed the suit. The first Appellate Court has also confirmed the same. The defendant has filed the second appeal as a second round of litigation. There is no dispute regarding title over the suit property upto the date of Ex.A.2 sale deed. The defendant obtained Ex.B.6 order as the plaintiff’s father stated no objection. Though the defendant stated there was a tenancy agreement in 1989, he has not stated so in his written statement nor proved it by way of document or evidence. Only to get an exparte order in the prior suit in O.S.No.735 of 1992, the defendant obtained order Ex.B.6, dated 15.06.1992. The defendant filed the suit in O.S.No.735 of 1992 on 01.07.1992. In Ex.B.6, the plaintiff is not a party, and this fact was admitted by the defendant/D.W.1 in his cross examination. So, Section 6 of the Tamil Nadu Cultivating Tenants’ Protection Act is not applicable to the plaintiff. The finding of the Courts below is a concurrent one. Concurrent findings could not be set aside unless questions of law were decided in favour of the appellants in the second appeal. The questions of law could not be decided in favour of the appellants as the suit was factually decided by the Courts below. Therefore, this second appeal may be dismissed.

15. On hearing both and on perusal of records, it is clear that the suit properties and other properties were allotted to the plaintiff’s father Ammaiyappa Gounder by virtue of a partition deed dated 19.09.1986 entered into between Ammaiyappa Gounder and his brother Karuppana Gounder. The defendant claims that he was a cultivating tenant under Ammaiyappa Gounder as per a tenancy agreement dated 07.10.1989 and he had been paying rent to Ammaiyappa Gounder by enjoying the suit property as a cultivating tenant and thereafter to his guardian, Lakshmi Ammal. It is further stated by the defendant that since the said Ammaiyappa Gounder and his daughter, the plaintiff herein, had been giving trouble to him, he filed a suit in O.S.No.735 of 1992 for the relief of permanent injunction against the plaintiff and her father Ammaiyappa Gounder. The learned counsel for the defendant submits that since the defendant was held as a cultivating tenant in O.S.No.735 of 1992 to which the plaintiff is also a party, the present suit is hit by the doctrine of res judicata and that the suit is barred under Section 6 of the Tamil Nadu Cultivating Tenants Protection Act, 1955. This was vehemently denied by the plaintiff stating that the defendant is not cultivating under the plaintiff and there is no agreement as such between the plaintiff and the defendant. It is further submitted by the plaintiff’s counsel that the defendant has not produced any agreement dated 07.10.1989 regarding cultivating tenancy with the plaintiff’s father.

16. From perusal of material records, evidence and judgments of courts below, it is very clear that the plaintiff purchased the suit properties from her father Ammaiyappa Gounder under Ex.A.2 registered sale deed dated 14.09.1990. Earlier, the trial Court decreed the suit on 30.01.2006 and on appeal preferred by the defendant, the Appellate Court remanded the suit to decide the fact whether the defendant was inducted as a cultivating tenant either prior to the Ex.A.2 sale deed or after the said sale deed. After remand, the trial Court found that the defendant had registered his name as a cultivating tenant under Ex.B.6 dated 15.06.1992. The trial Court has further held that the defendant has not proved the cultivating tenancy agreement dated 07.10.1989 entered into with the plaintiff’s father. Except Ex.B.6, the order of the Tahsildar, the defendant has not produced any other revenue records to show his tenancy.

17. The Tamil Nadu Cultivating Tenants Protection Act has clearly given a definition in respect of a cultivating tenant. As per Section 2 (a) (ee) of the Act, a cultivating tenant is a person who carries on personal cultivation or contributes his physical labour. Hence, the basic requirement to claim the status of cultivating tenant, the defendant should satisfy the definition of a cultivating tenant. From perusal of the records of the case, the defendant has not satisfied the Court by placing materials before the Courts below to show that he was a cultivating tenant under the plaintiff. The plaintiff has purchased the suit property on 14.09.1990 under Ex.A.2, and though the defendant claimed that the suit property was let out to him by the plaintiff's father, there is no material produced to substantiate the same. The Ex.B.6 is between the defendant and the plaintiff’s father for registering the name of the defendant as a cultivating tenant. The plaintiff is not a party to Ex.B.6, which was clearly admitted by the defendant in his cross examination as D.W.1. The defendant's side further stated that the defendant was ready to pay the lease amount to the plaintiff, so it is clearly presumed that the plaintiff is the title holder of the suit property and the same is correctly observed by the Courts below.

18. In the previous suit in O.S.No.735 of 1992, the defendant pleaded as if he was cultivating tenant under the plaintiff’s father and not under the plaintiff. So, the exparte decree obtained in that suit will not be operated as resjudicata to the present suit, since the defendant failed to prove that he was cultivating tenant even prior to the Ex.A.2 sale deed dated 14.09.1990, since the documents produced by the defendant show that he is only a tenant on the basis of Ex.B.6 dated 15.06.1992, which is an order of Tahsildar registering the name of the defendant as cultivating tenant. In Ex.B.6, the plaintiff is also not a party. Therefore, when the defendant does not come under the category of cultivating tenant under the plaintiff, the suit filed by the plaintiff is not barred by Section 6 of the Tamil Nadu Cultivating Tenants Protection Act.

19. A careful perusal of the ruling relied on by the appellant/defendant it is clear that the said suit was filed for recovery of possession and the said case was tried between the landlord and tenant for non payment of rent, so it was held that the civil Court has no jurisdiction. But the records of this case clearly proved that the defendant is not a cultivating tenant of the plaintiff, but the plaintiff pleaded that the defendant is a trespasser. Hence, the said citation is not applicable to the facts of this case.

20. No document indicates that the appellant was engaged in any cultivation using his labour under the land-lordship of the plaintiff. As of now, the defendant died during pendency of the second appeal and his legal heirs are impleaded as appellants 2 to 4. They have also not produced any material to show that they have contributed physical labour for cultivating the land under any lease agreement from the plaintiff. The Courts below, after considering the evidence available and the law governing the point, have rightly rejected the defence of cultivating tenant. The Courts below correctly appreciated the evidence adduced on both sides and gave findings. The evidence cannot be reappreciated by the High Court in second appeal.

21. It is a settled proposition of law that when concurrent findings are given by the Courts below, the High Court will not interfere with the concurrent findings of the Courts below, except under some exceptions, as held by the Hon’ble Supreme Court in the case of Nazir Mohamed v. J.Kamala and Ors. reported in (2020) 19 SCC 57, held as follows:

                     “33.4 The general rule is, that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognized exceptions are where: (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”

But in this case, the concurrent findings of the Court below do not fall within the above criteria. Both the Courts below correctly appreciated the evidence adduced on both sides and correctly came to the conclusion that the defendant failed to establish his case.

22. From the above facts and circumstances conjoined with the oral and documentary evidence adduced in this case, the Courts below found a concurrent finding based on Ex.A.2 registered sale deed. The said findings need not be interfered with by this Court by way of second appeal. Hence, the questions of law framed in this appeal are answered against the appellants. Thus, this second appeal fails.

23. In the result, the Second Appeal is dismissed. The judgment and decree dated 06.08.2010 passed in A.S.No.28 of 2010 on the file of the Additional Subordinate Court, Karur, confirming the judgment and decree dated 29.06.2009 passed in O.S.No.390 of 2002 on the file of the Additional District Munsif Court, Karur, is confirmed. No costs. Consequently, the connected Miscellaneous Petition is closed.