JUDGMENT :

[Prayer:- Second Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 25.07.2012 made in A.S.No.20 of 2011 on the file of Sub Court, Kulithalai in reversing the judgment and decree dated 07.02.2011 made in O.S.No.188 of 2008 on the file of District Munsif Court, Kulithalai.]

The first defendant in O.S.No.188 of 2008 on the file of the District Munsif Court, Kulithalai, laid for recovery of possession of the suit property, is the appellant herein. The parties would be referred by their rank before the trial court.

2. The case of the plaintiff may be briefly stated :

- The suit property is described as a block of agricultural land comprised in S.F.No.702/6 of Mullipadi Village, Kulithalai Taluk, Karur District, measuring 1.08.5 hectares or 2.68 acres. This property belonged to a certain Perumayee, who purchased it under Ext.B.1-sale deed, dated 01.09.1987. This Perumayee is stated to have executed Ext.A.2-Power of Attorney, dated 17.10.2002 in favour of Sakthivel, on the strength of which the power holder had sold the said property to the plaintiff vide Ext.A.1-sale deed, dated 23.10.2002.

- On purchase, the plaintiff instituted O.S.No.209 of 2005 for bare injunction against the same set of defendants. It may be stated that the first defendant is the husband of Perumayee under whom, the plaintiff claims. The first defendant resisted the suit on the ground that he has been a tenant under his wife vide Ext.B.2-lease deed, dated 18.10.1988. The trial Court accepted the contention of the first defendant and dismissed the suit vide Ext.A.4-decree. This was challenged by the present plaintiff in A.S.No.20 of 2007 and this appeal came to be dismissed Vide Ext.A.6-decree. Soon thereafter, the plaintiff laid the present suit for recovery of possession.

3. The solitary line of defence of the first defendant is that he is a cultivating tenant of the property under his wife and that his application to register him as a cultivating tenant is still pending before the official under the Tamil Nadu Cultivating Tenants Protection Act, 1955 (hereinafter referred to as “the CTP Act”).

4. The matter went to trial and both sides adduced necessary oral and documentary evidences, some of which have already been introduced. On appreciating the evidence, the trial Court dismissed the suit. The plaintiff preferred a first appeal in A.S.No.20 of 2011 before the Sub Court, Kulithalai, and the first appellate Court reversed the finding and decreed the suit. Hence, this second appeal at the instance of the first defendant.

5. This appeal was admitted for considering the following substantial questions of law :

“(i) Whether the plaintiff suit for recovery of possession as against the cultivating tenant is maintainable before the Civil Court especially when there is a specific bar under Section 6(A) of the Tamil Nadu Cultivating Tenants Protection Act?

and

(ii) Whether the present suit for recovery of possession before the Civil Court is legally maintainable when there is a finding in the earlier round of litigation with respect to the same party is to the effect that the parties should approach the competent authority under the Cultivating Tenants Protection Act?”

6.1. The learned counsel for the appellant/first defendant made a pointed argument that the first defendant has been consistently contending that he has been a cultivating tenant under his wife Perumayee from whom the plaintiff had purchased the property. This was his line of defence even in the earlier round of litigation in O.S.No.209 of 2005, wherein the Courts have consistently held that the first defendant indeed has been a tenant of the property. The learned counsel submitted that inasmuch as the first defendant's status vis-a-vis the suit property has already been decided in the earlier round of litigation, the present suit cannot be maintained for eviction under the common law, and if at all the plaintiff requires the termination of the tenancy and