No presumption of cultivating tenancy without statutory registration or proof; civil courts defer tenancy rights determination to specified authority.

JUDGMENT :

P.B. BALAJI, J.

The defendants, who are the appellants, challenging the judgment and decree in A.S.No.68 of 2019 on the file of the Additional Sub Court, Kumbakonam, reversing the judgment and decree in O.S.No.23 of 2015 on the file of the District Munsif cum Judicial Magistrate, Papanasam.

2. The Second Appeal was admitted by this Court on 07.03.2023, on the following substantial questions of law:-

“i. Whether the lower appellate court is right in its construction of Ex.A3 especially when the possession has already been given tot he appellants/ defendants.

ii. Whether the lower appellate Court is correct in decreeing the suit in the absence of a receipt showing that the possession was handed over to the appellants/defendants on the date of Ex.A3?

iii. Whether the lower appellate Court is right in reversing the judgment and decree of the trial Court when the respondent plaintiff himself admitted the oral lease agreement and the possession and enjoyment of the appellants / defendants over the suit schedule property based on the said oral lease agreement through the averments in Ex.A3 filed by the respondent plaintiff?”

3. I have heard Mr.Raguvaran Gopalan, learned counsel for the appellants / defendants and Mr.M.Ponniah, learned counsel for the respondent / plaintiff.

4. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

5. Mr.Raguvaran Gopalan, learned counsel for the appellants/ defendants would contend that the plaintiff had filed the suit for redemption of mortgage and for recovery of possession, contending that the lands were Nanja as well as Punja lands. The plaintiff had come to the Court with a specific case that the plaintiff had borrowed Rs.30,000/- from the mother of the defendants on 19.04.1993 and executed a simple mortgage on the same day in favour of the mother of the defendants. However, Mr.Raguvaran Gopalan, learned counsel for the appellants/defendants would state that the defendants had only admitted the factum of borrowing of Rs.30,000/- upon execution of a simple mortgage on 19.04.1993 and had specifically denied the self serving claims in paragraph No.5 of the plaint that the mother of the defendants has also executed a receipt for payment of interest on the said mortgage amount, consenting to cultivate the lands in lieu of payment of interest and that the usufructuary, has been created in pursuance of which the plaintiff's mother had been cultivating the lands and enjoying the same, in lieu of interest on the mortgage amount. Inviting my attention to the findings of the trial Court, Mr.Raguvaran Gopalan, would contend that the trial Court rightly found that the mortgage is only a simple mortgage and the possession of the mother of the defendants was only as a cultivating tenant and not under any usufructuary mortgage as claimed by the plaintiff. He would further state that the plaintiff had not been able to even establish even the borrowal and the self serving claim made in paragraph No.5 to impress character of usufructuary mortgage to a simple mortgage, which alone had been admitted by the defendants / appellants. He would however state that the first Appellate Court erroneously reversed the well considered findings of the trial Court in holding that neither the defendants' mother nor the defendants had been recognized as cultivating tenants and therefore, the possession of the defendants could only be under the mortgage as pleaded by the plaintiff in the plaint and not as cultivating tenants.

6. Inviting my attention to the substantial questions of law, Mr.Raguvaran Gopalan, learned counsel would submit t