Purpose of the Act is only to protect cultivating tenant.

A.S.VENKATACHALAMOORTHY, J.

Plaintiff in O.S.11 of 1986 on the file of Sub Court, Dharapuram is the appellant herein.

2. The plaintiff filed the said suit against the defendants praying the Court to pass a decree for division of suit properties into four equal shares with reference to good and bad soil and allot one such share to the plaintiff and to put her in possession of the same contending as follows.

One Palanisamy Gounder, who admittedly entitled for ¼ share in the suit property, sold the same on 8.4.1974 to one Veerammal. After the purchase the said Veerammal and other sharers were enjoying definite portions by way of convenient enjoyment without any partition amongst themselves by metes and bounds. It is the further case of the plaintiff that she purchased 1/4 share of Veerammal under a sale deed dated 29.10.1985 and since then she has been enjoying that portion of land which Veerammal was enjoying. According to the plaintiff, since the defendants refused to heed to the request to partition the properties by metes and bounds, the present suit has been filed.

3. The second defendant filed a written statement inter alia denying various claims made by the plaintiff. The defendant disputed the claim of the plaintiff that she is entitled to 1/4 share in the plaint schedule properties. Further case of the second defendant is that even assuming that the plaintiff is entitled for 1/4 share as claimed by her, she would not be entitled for possession and that is because the second defendant took the property on lease under a document dated 23.3.1973 for a period of three years from the predecessor-in-title of the plaintiff viz., Palanisamy Gounder and even after expiry of the said term, he continued to be in possession. A specific claim is made in the written statement that he is entitled to the protection under the Tamil Nadu Cultivating Tenants Protection Act, 1955 (hereinafter referred to as 'the Act').

4. At the trial, both the parties let in oral and documentary evidence. After considering the materials available on record, the trial Court came to the conclusion that the plaintiff is entitled to 1/4 share in the plaint schedule properties and that her share has to be demarcated. However, the Court held that she would not be entitled to get possession of the same since the second defendant is the cultivating tenant of the plaintiff's share of the property. Being aggrieved by that part of the finding of the trial Court, the present appeal has been filed by the plaintiff.

5. The learned counsel for the appellant contended that the second defendant in his written statement has not pleaded that he is cultivating the suit property with reference to the share of the plaintiff and even in his evidence he has not deposed that he is entitled to the protection under the Act. According to the learned Counsel, the trial Court ought to have granted a decree for possession as well.

6. On the other hand, learned counsel for the respondent would contend that the fact that Palanisamy Gounder leased out the property to the second defendant in the year 1973 has not been disputed and that further since he continues to be in possession even after expiry of lease period, he satisfies the conditions contemplated in the Act to claim the status of a cultivating tenant. According to him, payment of kist and electricity charges would further prove that he has been actually cultivating the plaintiff's share of the suit property.

7. It has to be noted that in the appeal, the plaintiff has not claimed that she is in possession of a portion of the suit property by way of convenient enjoyment. That being so, on the basis of the claims made by the respective parties, if this Court comes to the conclusion that the second defendant is the Cultivating Tenant, then the Judgment and Decree of the trial Court has to be sustained. But on the other hand, if this Court arrives at a finding that the second defendant is not the cultivating tenant as contemplated