Delivery of possession of the property through High Court may or may not be termed as proper delivery.

The plaintiff in O.S.No.110 of 1983, on the file of the District Munsif, Shencottah, is the appellant in the second appeal.

2. He filed the suit for permanent injunction restraining the first defendant/ first respondent herein, from interfering with his possession and enjoyment of the suit properties as cultivating tenant alleging as follows:

He became a lessee of Lakshmiammal about four years prior to suit, agreeing to pay four Kottahs of paddy every year. She died in or about 1980. During her lifetime, the second defendant/ second respondent herein, was receiving the rent from the plaintiff on her behalf. Even after the death of Lakshmiammal, he continued to be in possession of the suit properties as cultivating tenant. He had been regularly paying the rent to the second defendant till pisanam 1983. The original owner and the plaintiff had entered into a lease arrangement on 11.3.1979. On 26.3.1983, the first defendant came to the suit properties, informed him that she had got delivery of the property through Court, and attempted to throw him out, necessitating, the filing of the suit.

3. The first respondent resisted the suit contending inter alia that the lease set up by the plaintiff was false and a fraudulent one. No lease was executed by Lakshmiammal, at any time, in favour of the plaintiff. The lease deed had been created by the plaintiff and the second defendant. The first defendant filed a suit against the second defendant in O.S.No.46 of 1979 before the Subordinate Judges Court, Tenkasi, which was later on transferred to the District Munsif, Shencottah, and renumbered as O.S.No.49 of 1981. In that suit, the second defendant contended that he was entitled to the suit properties as heir to Lakshmiammal. He also claimed that he was in possession of the suit properties. The said suit was decreed on 21.1.1982 in favour of the first defendant, and in E.P.No.9 of 1983 she also took possession of the properties on 9.2.1983. The plaintiff was not in possession of the suit properties and he was not entitled to any relief.

4. Thesecond defendant remained ex parte.

5. Thetrial Court framed the necessary issues and on the oral and the documentary evidence (2002) 1 MLJ 647 at 648 held that the lease deed set up by the plaintiff was not a genuine document, that the receipts produced by him were not genuine, and that the first defendant was in possession pursuant to the Execution Proceedings. So holding by judgment and decree, dated 10.11.1983, the trial Court dismissed the suit.

6. The plaintiff filed appeal in A.S.No.157 OD 1998, before the Subordinate Judges Court, Tenkasi. The learned Subordinate Judge, by judgment and decree, dated 26.2.1988 confirmed the decision of the trial Court and dismissed the appeal. It is as against this, the present second appeal has been filed.

7. At the timeof admission, the following substantial questions of law were raised for decision in the second appeal.

• “(1)

Whether the finding given by the Courts below that pursuant to the proceedings in O.S.No.49 of 1979 on the file of the District Munsifs Court, Shencottah, delivery of possession was given to the respondents, is sustainable when the same is symbolical in nature and has no operation as against the appellant herein, nor does it create any privity of interest of estate between the appellant and the first respondent hereine

• (2)

Whether the said delivery of possession of the suit property to the first respondent is sustainable by the mere production of a certified copy of a warrant of delivery of possession, especially when the facts show that only symbolical possession could have been delivered to the first respondente and

• (3)

Whether the Courts below were right in holding that the appellant is not a cultivating tenante”

8. From the facts it is seen that the suit properties originally belonged to one Lakshmiammal. The first defendant is the grand daughter of Lakshmiammal and the second defendant is the grand son. Under Ex