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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.J. MUKHOPADHAYA & THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN
Sivaprakasam & Others
Versus
The Tahsildar (Jr) Ariyalur & Others
Writ Appeal No.2541 of 2002
Decided on: 25-08-2009
(B)Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act 10 of 69)-Sec.5-Tamilnadu Cultivating Tenants Protection Act, 1955(25 of 1955)-Sec.3-Tenancy-Record of tenancy-Agricultural land-Sale-Effect-On purchase of agricultural land, the purchaser gets title subject to the tenancy right of the cultivating tenants over the land.
When the fourth respondent purchased the property, there could only be a transfer of ownership of property and the status of the petitioners remain the same as that of cultivating tenants. Para 9
(C)Indian Evidence Act, 1872 (1 of 1872)-Sec.101, 102, 103, 104-Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act 10 of 69)-Sec.5-Tamilnadu Cultivating Tenants Protection Act, 1955(25 of 1955)-Sec.3-Tenancy-Record of tenancy-Agricultural land-Possession-Eviction-The continuance of possession of a cultivating tenant over the land under his tenancy would be presumed unless and until his dispossession is proved by substantive evidence.
101 to 104 of the Indian Evidence Act to prove that the petitioners were dispossessed according to law and subsequently the Devasthanam handed over possession of the land to the fourth respondent. Mere allegation in the petition that the fourth respondent was given possession of the property is not sufficient. There should be substantial evidence to prove the said allegation.
Para 9
(D)Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act 10 of 69)-Sec.5-Tenancy-Record of tenancy-Agricultural land-Modification-Modification of Entries in the tenancy register would be done only in case of death of any person, change of interest in land and other subsequent change of circumstances and not otherwise.
A perusal of Section 5 would reveal that the modification of entries in the approved record of tenancy rights can be made in the following circumstances:
(i) by reason of the death of any person
(ii)by reason of the transfer of interest and
(iii)by reason of any subsequent changes in circumstances. Para 17
(E)Constitution of India-Art.226-Writ-Jurisdiction-Practice and procedure-Finding of fact-interference-The writ Court can interfere with the finding of facts when the finding is not based any evidence, contrary to the evidence available on record or it was based upon conjectures and surmise.
Though finding of facts cannot be reversed in appeal under Article 226 usually, the Court is not powerless, when the authorities below erroneously assumed jurisdiction which they are not entitled to exercise and gave erroneous and perverse findings contrary to the evidence available on record. Moreover the findings given in this are based on no evidence and authorities gave finding on the basis of conjectures and surmises and they have to be set-aside. Para 32
(F)Constitution of India-Art.300A-Right to property-Possession-Eviction-Encroachment-Due process of law-Even an encroacher of a land is entitled to protect his possession from unlawful eviction-Possession of anyone including an encroacher can be disturbed only in accordance with the procedure prescribed under ay law and not otherwise.
It is well settled Law that even an encroacher cannot be dispossessed except by due process of Law. When that is the position, the fourth Respondent cannot be allowed to contend imaginary possession by it without proving as to how the possession of the property was taken from the cultivating tenant. Para 32
N. KIRUBAKARAN, J.
This Writ Appeal has been preferred against the order of the learned single Judge, made in W.P.No.3896 of 1992 dated 04.08.2000, dismissing the writ petition filed by the petitioners challenging the order of the third respondent confirmed by the order of the second and first respondents.
2. The brief facts of the case are as follows:
According to the appellants (hereinafter referred to as petitioners), they are the cultivating tenants under Dandeeswaran Temple and Varadharaja Perumal Temple and they have been cultivating the lands comprised in Survey Nos.250/4, 250/8, 250/17 and 252/2 to an extent of 10.65 cents situate in Sendurai Village, Ariyalur Taluk. When things stand so, the fourth respondent filed a petition in T.R.No.1 of 1986 on the file of the first respondent seeking for an order to initiate legal action against the petitioners herein to remove their rights over the aforesaid lands that they had been holding long ago. The said petition was preferred under Section 5(2) of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act 10 of 69).
3. The case of the fourth respondent before the first respondent was that the properties originally belonged to the Sri Sivandandeeswarar and Varadharaja Perumal Temple situate at Sendurai Village, Ariyalur Taluk, Trichy District. Subsequently, they purchased the property through a sale deed dated 112. 1985 after obtaining permission from HR & CE Commissioner. The purchase of the property was for raising houses for the Government employees in the said property.
4. It is the further contention of the fourth respondent that the property was left without proper cultivation; the petitioners were giving troubles to the fourth respondent based on the fact that their names were finding place in the tenancy rights. Hence the fourth respondent sought the deletion of the petitioners name from the tenancy register.
5. The petitioners contested the petition. After enquiry, the first respondent allowed the petition and ordered deletion of the petitioners name from the tenancy rights register.
6. Aggrieved by the order of the first respondent dated 27.05.1987, the petitioners filed R.P.No.10 of 1987 on the file of the second respondent who confirmed the order of the first respondent and dismissed the petition. Against the said dismissal order, a revision was preferred before the third respondent in N.M.S.R.D.R.3 of 1989 and the said revision petition was also dismissed on 12. 1991, upholding the order passed by the first respondent as confirmed by the second respondent. Against the order of the revision passed by the third respondent, W.P.No.3896 of 1992 was filed and the same was dismissed by the learned Single Judge on 04.08.2000. Against the said order, the present appeal has been preferred.
7. Heard the learned Senior Counsels for the respective parties and perused the materials available on record.
8. It is not in dispute that the petitioners names were finding place in the Tenancy Rights Register. The Tenancy Register was also published in the gazette notification dated 13.02.1972 in which the properties were shown as Item Nos.47, 48, 49 and 50. The land owner of the property was shown as Sri Sivandandeeswarar Temple, Sendurai, Sri Varadharaja Perumal Temple, Sendurai. The petitioners names and their ancestors names were shown as the tenants. The above said notification would indisputably prove that the petitioners were let in possession as cultivating tenants and that was the reason why their names found place in the gazette notification dated 13.02.1972 issued by the Special Tahsildar. The said publication was made as per Section 3(5) of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act. Hence there is no question with regard to the petitioners status that they are the cultivating tenants in the said lands.
9. When the fourth respondent purchased the property, there could only be a transfer of ownership of property and the status
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