Legal heirs claiming cultivating tenant status must establish physical contribution to cultivation; mere documentation of tenancy by a deceased parent is insufficient.

JUDGMENT :

1. Aggrieved over the dismissal of the suit filed for declaration and permanent injunction, the present appeal has been filed by the unsuccessful plaintiffs.

2. The parties are arrayed as per their own ranking before the trial Court.

3. It is the case of the plaintiffs that the suit property was originally owned by the first defendant. The plaintiffs and third defendant are sisters and brother. The plaintiffs' father Nallaperumal Pillai was a cultivating tenant in respect of the suit property and tenancy was recorded in the Record of Tenancy in T.R.No.321 of 1975. The plaintiffs' father died intestate. Even during the life time of their father, the plaintiffs and the third defendant were exerting joint labour along with their father. According to them, they are cultivating tenants along with the third defendant and they are in physical possession of the property. The second defendant is their neighbour and he owns 39 cents in the same survey number. Besides he has also sold the same to one Rajalakshmi on 15.03.1999. However, from 01.06.2018, the second defendant is attempting to trespass into the suit property. Hence, the suit has been filed by the plaintiff for a declaration that the plaintiffs and the third defendant are joint cultivating tenants in respect of the suit property and for permanent injunction restraining the second defendant and their men from interfering with the plaintiffs' enjoyment of the suit property.

4. It is the contention of the second defendant that the description of he property is not correct. The third defendant has already filed a suit through Selvakumar, Krishnaraj and Senthil in O.S.No.30 of 2012 on the file of the District Munsif Court, Portnovo for permanent injunction against this defendant and his wife. The said suit has been dismissed after contest. In the above suit, the third defendant has been examined as P.W.2, wherein he has spoken as if he has sold out the lease hold right in favour of above three persons for a sum of Rs.2 lakhs and executed a sale deed dated 19.04.2011. It is also denied that the plaintiffs' father has been recorded as a cultivating tenant and the plaintiffs were also exerting joint labour. According to this defendant, his father had been in possession and enjoyment of an extent of 2.00 acre as a lessee under the first defendant for more than 50 years. After his death, this defendant has been in possession and enjoyment of the property. He had also raised paddy crops in the extent of 1.48 acres which is three months old. Besides he has also constructed a thatched house in the property on the north of the road leading to railway station and also obtained electric service connection in his name. The thatched house was constructed in the extent of 1.48 acres and his wife has been in possession and enjoyment of an extent of 0.48 cents by a sale deed executed by the first defendant. Hence, it is his contention that he is in possession of 1.49 acres. Hence, opposed the suit.

5. On the basis of the above pleadings, the following issues have been framed by the trial Court :

1. Whether the plaintiffs and the third defendant are the cultivating tenants in respect of the suit schedule property?

2. Whether the plaintiffs are entitled to get the relief of declaration as prayed for?

3. Whether the suit properties are in possession and enjoyment of the plaintiffs and the third defendant?

4. Whether the plaintiffs are entitled for permanent injunction against the third defendant?

5. Whether the second defendant is a tenant under the first defendant?

6. Whether the suit is bad for want of leave of the Court under section 92 of CPC?

7. To what relief the plaintiffs are entitled for?

6. On the side of the plaintiffs, P.W.1 and P.W.2 have been examined and Ex.A.1 to Ex.A.9 have been marked. On the side of the second and third defendants, D.W.1 and D.W.2 have been examined and Ex.B.1 to Ex.B.12 have been marked. The first defendant remained exparte in the suit. Considering entire evidence,