Philominal vs M. Shanmugasundaram (died)

P.R. Shivakumar, J.—The Defendants in the Original Suit are the Appellants in the Second Appeal. The deceased First Respondent-Shanmugasundaram filed O.S. No.93 of 2007 on the file of the District Munsif, Thiruvaiyaru for recovery of possession of the Suit properties from the Appellants (Defendants in the original Suit). The said prayer was made based on the following Plaint averments:

(a) The Suit property, namely an extent of 1.62 acres comprised in S. No. 150 of Palamaneri, Thiruvaiyaru Taluk, Thanjavur District belonged to the deceased First Respondent/Plaintiff. His Mother Logambal Ammal had purchased the said property in the year 1946. After such purchase, she was cultivating the said land personally with the help of one Sowrinayagam. After the death of the said Sowrinayagam in 1972, his wife Ponnachi @ Irudayameri was helping Logambal Ammal in cultivating the said land and Logambal Ammal alone incurred the expenditure for such cultivation. The deceased First Respondent/Plaintiff, who was employed in the Forest Department, retired from service in 1995 and after his retirement, he was helping his mother by providing necessary funds for the cultivation to the above said Ponnachi @ Irudayameri and he was getting the mahazool. As such, neither Sowrinayagam nor his wife Ponnachi @ Irudayameri was in possession of the Suit land under a tenancy arrangement. Even after the death of Logambal Ammal, they did not cultivate the land as tenants under a Tenancy Arrangement. While so, the said Ponnachi @ Irudayameri, due to old age, could not render help to the deceased First Respondent/Plaintiff by contributing her physical labour in cultivating the Suit land. However, one Arokiasamy, son-in-law of Ponnachi @ Irudayameri, who had married Kulanthai Therasu, the daughter of Ponnachi @ Irudayameri, forcibly trespassed into the Suit land and caused obstruction to the cultivation of the same by the deceased First Respondent/Plaintiff, pursuant to which a Complaint was lodged on the file of Thirukattuppalli Police Station on 05.04.2004 and also a Petition was submitted to the District Collector, Thanjavur informing that the said Arokiasamy plowed the land and sowed the seeds during night hours. The Inspector of Police of Thirukattuppalli Police Station, who enquired the above said Arokiasamy and Ponnachi @ Irudayameri, obtained an undertaking from them not to enter the Suit property belonging to the deceased First Respondent/Plaintiff.

(b) While so, at the instigation of Arokiasamy, Ponnachi @ Irudayameri moved a Suit O.S. No. 175 of 2004 on the file of the Vacation Court for permanent injunction and made an attempt to get a permanent injunction. But failed in such attempt. Thereafter, the said Suit was taken on file in the regular Court, namely the Court of the District Munsif, Thiruvaiyaru as O.S. No. 140 of 2004. Subsequently Ponnachi @ Irudayameri, the Plaintiff in the said Suit, died on 07.11.2004 and her daughters Philominal and Kulanthai Therasu, the Appellants herein failed to apply for getting them impleaded in the said Suit as Legal Heirs of Ponnachi @ Irudayameri, as a result of which the Suit came to be dismissed on 23.02.2005. Thereafter, on an Application filed by them, they were impleaded as the Legal Heirs of the original Plaintiff in the said Suit O.S. No. 140 of 2004 and the Suit was restored. The said Suit originally filed by Ponnachi @ Irudayameri, on the basis of her claim that she was cultivating the said land as a Tenant, came to be abated on her death and the right to sue did not survive the death of Ponnachi @ Irudayameri. However, the Appellants managed to pursue the Suit filed by Ponnachi @ Irudayameri after her death as her Legal Representatives and obtained a decree in their favour. Such a Decree shall be invalid and shall be a nullity. The said Decree passed by the District Munsif, Thiruvaiyaru in O.S. No. 140 of 2004 was challenged by the deceased First Respondent/Plaintiff before the Principal Subordinate Judge, Thanjavur in A.S. No.63 of 2006. However, the Appellate Court chose to confirm the Decree passed by the Trial Court. Neither the name of Sowrinayagam nor the name of his wife, namely Ponnachi @ Irudayameri was recorded as a Cultivating Tenant in respect of the Suit property. As such, the decree passed by the Trial Court in O.S. No. 140 of 2004, which was confirmed by the Appellate Court in A.S. No.63 of 2006, is not sustainable in law. Hence, the deceased First Respondent/Plaintiff was entitled to get a decree for recovery of the said Suit property as its owner. For a pre-suit Notice issued by the deceased First Respondent/Plaintiff through his Advocate on 01.05.2007, a reply was sent by the Appellants/Defendants through their Advocate on 07.05.2007 claiming benefits under the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 on the basis of the Decree obtained by them in O.S. No. 140 of 2004. Under such circumstances, the deceased First Respondent/Plaintiff was entitled to a decree for recovery of possession of the Suit property from the Appellants herein/Defendants.

The Suit was resisted by the Appellants/Defendants based on the avements made in their Written Statement which are, in brief, as follows:

(a) It is true that the Suit property measuring an extent of 1.62 acres comprised in S.No. 150 belonged to the deceased First Respondent/Plaintiff. But the averment that Logambal Ammal, the mother of the Plaintiff purchased the Suit property and was directly cultivating the land is totally wrong. The further averments made in the Plaint that Sowrinayagam during his life time and after his death, Ponnachi @ Irudayameri helped Logambal ammal in her direct cultivation of the Suit property are false. On the other hand, at the first instance Sowrinayagam and subsequently Ponnachi @ Irudayameri cultivated the Suit land as tenants contributing their physical labour. The Plaint averment that the mother of the First Respondent/Plaintiff was giving money for such cultivation is totally false. The further averment that Ponnachi @ Irudayameri made her son-in-law Arokiasamy to trespass into the Suit property is also false. It became the routine practise of the First Respondent/Plaintiff to make attempts to take possession of the land by hook and crook by lodging Complaints. As the Supreme Court has directed that the Police should not interfere in Civil matters, Thirukattuppalli Police could not have obtained any undertaking from the Appellants/Defendants. Even if such an undertaking could have been obtained from Arokiasamy, the same would not be legally valid and the same will not be binding on the Appellants/Defendants as the said Arokiasamy is not a party to the Suit.

(b) O.S. No. 140 of 2004 was filed by Ponnachi @ Irudayameri for an injunction against the First Respondent/Plaintiff not to disturb the possession of Ponnachi @ Irudayameri and her daughters namely the Appellants as a Cultivating Tenants. On the death of Ponnachi @ Irudayameri, the Appellants/Defendants as her Legal Heirs in law became the Cultivating Tenants and the said contention was upheld in O.S. No. 140 of 2004. Suppressing the said fact, the First Respondent/Plaintiff chose to file the present Suit as if the said decree was a nullity. The same would even amount to contempt of Court. Similarly, the contention raised in the Plaint that the decree of the Appellate Court made in A.S. No.63 of 2006 confirming the decree passed in O.S. No. 140 of 2004 is a nullity will amount to contempt of Court. Only after considering the notice dated 12.06.1992, issued by the First Respondent/Plaintiff through his Advocate, which was marked as Ex.B1 & 50 other documents produced in O.S. No. 140 of 2004 by the Appellants herein, the said Court granted a decree for the relief of permanent injunction. A false allegation has been made in the Plaint as if the name of the husband of Ponnachi was not entered in the Tenancy Register maintained in accordance with the record of tenancy Act. On the death of a Cultivating Tenant, his/her Legal Heirs, who cultivate the land contributing their physical labour, will be entitled to the benefits of the Tamil Nadu Cultivating Tenants'' Protection Act. In the previous Suit and in the Appeal filed therefrom both the Trial Court and the Appellate Court held in clear terms that the Appellants herein/Defendants were directly cultivating the lands contributing their physical labour and that hence, they were entitled to the benefit of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955. Even though there had been a number of communications regarding the payment of rent, the First Respondent/Plaintiff, with a view to retrieve the property from the Cultivating Tenants without resorting to procedure prescribed by law, chose to file the Suit with false and untenable allegations. The Suit of the First Respondent/Plaintiff is also barred by the Principle of res judicata. The remedy available to the First Respondent/Plaintiff is to approach the revenue Court for necessary relief. Hence, the Suit for recovery of possession from the Appellant/Plaintiff, who are Cultivating Tenants, should be dismissed with costs.

Based on the above said pleadings, the following issues were framed by the Trial Court:

(1) Whether the Plaintiff is entitled to the relief of recovery of possession as prayed for in the Plaint ?

(2) Whether the Suit is barred by res judicata ?

(3) To what other relief ?

In the trial, the Plaintiff figured as the sole witness (PW1) and produced 9 documents as Exs.A1 to A9 on his side whereas the First Appellant/First Defendant figured as the sole witness (DW1) and 5 documents were marked as Exs.B1 to B5 on the side of the Appellant First/Defendants. The learned trial Judge, on a consideration of evidence, held that the Suit was not barred by res judicata. The learned trial Judge held that the Plaintiff s contention that the Defendants were trespassers could not be sustained and, on the basis of the said finding, negatived the prayer for recovery of possession. The Trial Court also held that the Plaintiff was not entitled to any relief and accordingly dismissed the Suit by its Judgment and Decree dated 27.06.2008 without costs.

The decree of the Trial Court dismissing the said Suit without costs was challenged by the First Respondent/Plaintiff before the first appellate Court, namely the Court of the Principal Subordinate Judge, Thanjavur in A.S. No.47 of 2008. The learned Lower Appellate Judge, (Principal Subordinate Judge, Thanjavur), after hearing, held that though the Appellants herein/Defendants would have claimed to be Cultivating Tenants entitled to the protection of Tamil Nadu Cultivating Tenants'' Protection Act, 1955, since they had admitted the ownership of the First Respondent/Plaintiff and the First Respondent/Plaintiff never admitted the Appellants/Defendants to be the Cultivating Tenants, the First Respondent/Plaintiff was entitled to the relief of recovery of possession. Accordingly, the learned Lower Appellate Judge reversed the finding of the Trial Court regarding Issue No.1 though it concurred with the finding of the Trial Court regarding Issue No.2, set aside the Decree of the Trial Court dismissing the Suit and decreed the Suit for recovery of possession directing the Appellants herein/Defendants to hand over possession of the Suit property to the deceased First Respondent/Plaintiff within three months from the date of Judgment of the Appellate Court. The said Decree of the Lower Appellate Court dated 19.12.2008 made in A.S. No.47 of 2008 is challenged by the Appellants herein/Defendants in this Second Appeal.

After the filing of the Second Appeal, the First Respondent/Plaintiff passed away and hence, his Legal Heirs were impleaded as Respondents 2 & 3. The Second Appeal came to be dismissed twice for non-prosecution, at the first instance on 4.2.2011 and for the second time on 9.7.2012. Both the judgements dismissing the Second Appeal for non-prosecution came to be set on a Miscellaneous Petition filed on each occasion and at last, it has come up for final hearing.

Section 100 of the Code of Civil Procedure provides that an Appeal from the Decree of the Appellate Court shall lie to the High Court only on a substantial question of law. The Second Appeal came to be admitted identifying the following questions to be the substantial questions of law involved in the Second Appeal:

"(1) Whether the Courts below have jurisdiction to entertain the Suit for possession while the Defendants have been already found to be "Cultivating Tenants" in O.S. No. 140 of 2004 in the Suit property ?

(2) Whether the principle "due process of law" would mean that a Suit for possession can be entertained by Civil Court against Cultivating Tenants as held by the Lower Appellate Court ?

(3) Whether the ruling of the Lower Appellate Court that the Plaintiff need not file a Suit for possession before the Revenue Court and it has jurisdiction to entertain the same is legally sustainable in view of the specific finding that the Defendants are Cultivating Tenants in the Suit property ?"

The arguments advanced by Mr. M. Subash Babu, learned Counsel for the Appellant and by Mr. D. Nalla Thambi, learned Counsel for the Respondents (Legal Aid Counsel) were heard. The judgments of the Courts below and the materials available on record were also perused and this Court paid its anxious consideration to the same.

The deceased First Respondent/Plaintiff filed the original Suit for recovery of possession on the premise that he was the absolute owner of the Suit property having derived title to it by way of succession from his mother Logambal Ammal, who had purchased the Suit property in the year 1946. Though the deceased First Respondent/Plaintiff would have contended that the Suit property was purchased by his mother Logambal Ammal in the year 1946, the Sale Deed in the name of the mother of the Plaintiff has not been produced. However, the Appellants herein/Defendants, in their Written Statement, have not denied the Plaint averments regarding the title to the Suit property and on the other hand, they have admitted in clear terms that the Suit property, namely 1.62 acres comprised in S. No. 150 of Palamaneri, Thiruvaiyaru Taluk, Thanjavur District belonged to the deceased First Respondent/Plaintiff. However, they had denied the Plaint averments that Logambal Ammal, the mother of the Plaintiff was directly cultivating the land with the help of Sowrinayagam and that, after the death of Sowrinayagam, Ponnachi @ Irudayameri, the mother of the Appellants, were assisting her in cultivating the Suit land. In this regard, when an earlier attempt was made by the deceased First Respondent/Plaintiff to evict Ponnachi @ Irudayameri from the Suit property without approaching the appropriate forum, the said Ponnachi @ Irudayameri, the mother of the Appellants, filed a Suit O.S. No. 140 of 2004 on the file of the District Munsif, Thiruvaiyaru for a permanent injunction restraining the First Respondent herein/Plaintiff from interfering with her possession and from dispossessing her without following due process of law. The said Ponnachi @ Irudayameri died during the pendency of the Suit and within the time prescribed under Code of Civil Procedure, the Appellants herein, being the daughters of the said Ponnachi @ Irudayameri, did not take steps to get them impleaded as Plaintiffs in their capacity as Legal Heirs of their mother which resulted in the abatement of the Suit. Thereafter, on Applications filed by the Appellants herein/Defendants, the abatement came to be set aside and they were impleaded as Plaintiffs 2 & 3 in the said previous Suit, namely O.S. No. 140 of 2004. After such impleadment, they pursued the remedy sought for in the Suit and the learned District Munsif, Thiruvaiyaru decreed the Suit as prayed for granting the relief of permanent injunction restraining the First Respondent herein/Plaintiff from dispossessing the Appellants herein/Defendants without following due process of law. The certified copies of the said Judgment and Decree of the learned District Munsif, Thiruvaiyaru has been produced in the Suit from which the present Second Appeal has arisen as Exs.A1 & A2. In the said judgment, the learned District Munsif, Thiruvaiyaru held that the Appellants herein/Defendants were found to be in possession of the Suit property claiming tenancy rights and also protection under the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 and that under such circumstances, they were entitled to a permanent injunction against the deceased First Respondent/Plaintiff not to evict them/dispossess them without following due process of law.

The said Decree of the learned District Munsif, Thiruvaiyaru was challenged by the First Respondent herein as Appellant in the Court of Principal Subordinate Judge, Thanjavur in A.S. No.63 of 2006. The learned Principal Subordinate Judge concurred with the findings of the District Munsif, Thiruvaiyaru and dismissed the Appeal confirming the decree passed by the learned District Munsif, Thiruvaiyaru in O.S. No. 140 of 2004. The certified copies of the Judgment and Decree of the Principal Subordinate Judge, Thanjavur made in A.S. No.63 of 2006 have been marked as Exs.A3 and A4. Apart from producing the certified copies of the Judgments and Decrees of the Trial Court in O.S. No. 140 of 2004 and that of the Appellate Court in A.S. No.63 of 2006 as Exs.A1, A2, A3 & A4 respectively, the deceased First Respondent/Plaintiff has also chosen to produce the certified copy of a Decree dated 23.2.2005 dismissing the said original Suit O.S. No. 140 of 2004 for default as Ex.A 7. The fact remains that though such a Decree came to be passed on 23.2.2005 dismissing the Suit for default, on an Application made by the Appellants/Defendants, the said order came to be set aside and the Appellants herein/Defendants got impleaded in the said Suit O.S. No. 140 of 2004 and they pursued the remedy claimed in the said Suit by contending that even during the life time of their mother they were assisting her by contributing their physical labour in cultivating the land and that after the death of their mother, they continued to cultivate the land as Cultivating Tenants contributing their physical labour. The learned District Munsif, Thiruvaiyaru, after completion of trial in the said Suit, chose to incidentally go into the question of the nature of their possession and held that they were in possession of the Suit property claiming to be the Cultivating Tenants and that therefore, their possession should not be allowed to be disturbed without following due process of law for evicting them. Accordingly, the Suit was decreed as indicated supra. The Appeal preferred therefrom was also dismissed confirming the Decree.

The deceased First Respondent herein/Plaintiff seems to have produced a certified copy of the Decree dated 23.02.2005 dismissing the said Suit for default which was subsequently set aside. In addition, the First Respondent/Plaintiff has chosen to produce a copy of the affidavit filed in the Application filed by the Appellants herein for getting them impleaded in the said Suit O.S. No. 140 of 2004 as Ex.A8 to show that the Appellants herein/Defendants did not contend therein that they were contributing their physical labour in cultivating the Suit land and hence they were Cultivating Tenants in respect of the Suit land Of course, it is true that in Ex.A8, excepting the fact that the Appellants herein/Defendants prayed for their impleadment in the said former Suit as Legal Heirs of their mother, no other averments as to whether they were cultivating the land as Cultivating Tenants contributing their physical labours after the death of their mother. When a Cultivating Tenant passes away, his/her Legal Heirs can continue to cultivate the Tenancy land. If they contribute their physical labour for such cultivation, then they will be recognised as Cultivating Tenants. On the other hand, if they do not contribute their physical labour in cultivating the land and they engage somebody to cultivate the land without there being any physical contribution by them, then they will cease to be Cultivating Tenants. It is not necessary that a heir of a Cultivating Tenant, to claim protection under the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 should contribute his/her physical labour during the life time of the predecessor Cultivating Tenants and it shall be enough that on the death of a Cultivating Tenant his heir continues the cultivation contributing his/her physical labour to claim the benefits under the Tamil Nadu Cultivating Tenants'' Protection Act, 1955.

In the present case, the Appellants have claimed that one of them was assisting their mother for cultivating the lands during her life time and after the death of their mother, they themselves are cultivating the land contributing their physical labour. Under such circumstances alone, the earlier Suit, namely O.S. No. 140 of 2004 came to be decided in their favour holding them entitled to a permanent injunction restraining the deceased First Respondent herein/Plaintiff from disturbing their possession without adopting due process of law. The Judgment and Decree of the Trial Court in the above said former Suit and Judgment and Decree of the Appellate Court in A.S. No.63 of 2006 will go to show that the said Courts came to a conclusion that the Appellants herein/Defendants had established a prima facie case that they were Cultivating Tenants entitled to the protection under the Tamil Nadu Cultivating Tenants'' Protection Act, 1955. Though such a finding shall not be final, since the power to decide the question whether one is a Cultivating Tenant or not has been given to the Revenue Divisional Officer under Section 6-A of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 the said Court conscious of its limited jurisdiction in deciding the said question, came to the conclusion that the Appellants herein/Defendants, who were admittedly in possession of the Suit property, could not be evicted without following due process of law, meaning that the question whether they were entitled to the protection under the Tamil Nadu Cultivating Tenants; Protection Act, 1955 it had to be decided by the Competent Authority under the said Act and that till such decision their possession should not be disturbed. When such is the finding of the Trial Court and the Appellate Court in the former Suit and the Appeal arising therefrom, the deceased First Respondent/Plaintiff could not have validly maintained a Suit for recovery of possession in the Civil Court rather than approaching the Competent Authority under the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 for a decision as to whether the Appellants herein/Defendants were Cultivating Tenants entitled to the protection of the said Act.

In this regard, there is a clear admission made by the deceased First Respondent/Plaintiff that the Suit property is in the possession and enjoyment of the Appellants/Defendants. In fact, the deceased First Respondent/Plaintiff, who figured as the sole witness on the side of the Plaintiff as PW1, admitted having sent a notice to the Appellants herein/Defendants. A copy of the said Notice dated 12.6.1992 has been marked as Ex.B2. The said Notice itself contains a clear admission that Ponnachi @ Irudayameri, the mother of the Appellants, was cultivating the Suit land on a Lease Arrangement agreeing to pay the rent in kind, namely 6 kalams of Padi and 20 bundles of hay per year and in case of cultivation of black grams, 12 marakals of Black gram should be given as rent. It has also been admitted that the said Ponnachi @ Irudayameri was paying the said rent (in kind as indicated above). The relevant portion in the Notice is extracted hereunder:

VERNACULAR MATTER

The same will make it clear that the deceased First Respondent/Plaintiff made an admission that the land was taken by Ponnachi @ Irudayameri, the mother of the Appellants, on lease agreeing to pay the rent in kind as indicated above. The said notice seems to have been issued to inform Ponnachi @ Irudayameri that one Somasundaram, the brother of the deceased First Respondent/Plaintiff, did not have any right or share in the property and that the rent in kind should not be paid to him. The said document itself contains a clear admission that Ponnachi @ Irudayameri was cultivating the land as a tenant under the deceased First Respondent/Plaintiff. After the death of Ponnachi @ Irudayameri, her daughters, namely the Appellants herein, have claimed them to be the Cultivating Tenants in respect of the Suit land, since according to them they themselves are cultivating the land contributing their physical labour. The land in question was admitted to be tenancy land and the mother of the Appellants/Defendants was also admitted to be tenant as per the said document.

Under such circumstances, if at all the deceased First Respondent/Plaintiff wants to retrieve possession of the lease hold land from the Appellants/Defendants on the premise that after the death of their mother they did not come under the definition of Cultivating Tenants, the remedy available to the deceased First Respondent/Plaintiff was to approach the Competent Authority under the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 for eviction and recovery of possession. In stead of doing it, the deceased First Respondent/Plaintiff has chosen to approach the Civil Court with the present Suit O.S. No.93 of 2007 for recovery of possession on the premise that at no point of time the Suit property was a leasehold land held by Sowrinayagam or by Ponnachi @ Irudayameri or by the Appellants/Defendants. The same is quite contrary to the admission made by him under Ex.B2-Notice.

The learned Trial Judge, on proper appreciation of evidence, and on proper application of the provisions of law, came to a correct conclusion that though the earlier Suit in O.S. No. 140 of 2004 came to be decreed, the same would not constitute a bar of res judicata as the question whether the mother of the Appellants herein and after her, the Appellants herein w ere entitled to the protection of the provisions of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 as in the decree passed in the said Suit, the Court had simply restrained the deceased First Respondent/Appellant from interfering with the peaceful possession and enjoyment of the Appellant herein in respect of the Suit property unless and until they would be evicted by due process of law. The learned Trial Judge came to a correct conclusion that though the question whether the Appellants herein/Defendants were the Cultivating Tenants entitled to the protection of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 could not be conclusively decided by the Civil Court, since the possession of the mother of the Appellants herein/Defendants as Cultivating Tenant was admitted, the question whether the Appellants/Defendants, being the Legal Heirs of Ponnachi @ Irudayameri were entitled to the protection of Tamil Nadu Cultivating Tenants'' Protection Act, 1955 should be adjudicated upon and decided by the Competent Authority under the said Act and that the Civil Court could not decide the said issue and grant the relief of recovery of possession having the effect of evicting the Appellants/Defendants. Such a well considered judgment was unnecessarily and improperly interfered with by the learned Lower Appellate Judge.

The learned Lower Appellate Judge also made an observation that the Civil Court did not have the jurisdiction to determine the question whether a person was a Cultivating Tenant and that though the Civil Court had jurisdiction to determine the nature of tenant''s possession incidentally, such a decision should not override the provisions of Section 16-A of the Tamil Nadu Cultivating Tenants'' Protection Act, which confers the jurisdiction on the Competent Authority to decide the question. It seems, ironically the learned Subordinate Judge came to the conclusion that the judgment in the previous Suit and the Judgment in the Appeal arising therefrom could not be sustained as the Civil Court decided the question whether a particular person was a Cultivating Tenant or not. However, the learned Principal Subordinate chose to hold that since no prayer for setting aside the said Decree passed in the previous Suit and the Appeal arising therefrom was made and no prayer for declaring the same to be null and void had been made by the deceased First Respondent/Plaintiff, the contention of the First Respondent/Plaintiff that the said Judgments made in the previous Suit and the Appeal arising therefrom should be disregarded, as nullities could not be countenanced. The learned Lower Appellate Judge seems to have confused the issue and such confusion is Writ large in the very judgment itself. The later part of the Judgment of the Lower Appellate Court proceeds on the footing that for recovery of rent from the Cultivating Tenant alone the Landlord has to approach the Authority under the Act and that for eviction and recover}'' of possession, a Civil Suit shall be maintainable. The said view taken by the learned Principal Subordinate Judge is quite contrary to the provisions of law. The observations made by the learned Principal Subordinate Judge (Lower Appellate Judge) that even in respect of a leasehold land to which the Tamil Nadu Cultivating Tenants'' Protection Act applies, a Suit for eviction and recovery of possession will lie in a Civil Court is a total misconception and misreading of the provision. The well considered Judgment of the Trial Court ought not to have been interfered with by the Appellate Court. In the former Suit, permanent injunction had been granted against the deceased First Respondent/Plaintiff not to interfere with the possession of the Appellants without adopting due process of law. Such a due process of law in respect of a leasehold land, to which the Tamil Nadu Cultivating Tenants'' Protection Act applies, shall mean initiation of a proceedings under the said Act for eviction and recovery of possession, jurisdiction for the same has been conferred on the Competent Authority under Section 16-A of the Tamil Nadu Cultivating Tenants'' Protection Act. The learned Lower Appellate Judge misread and misinterpreted the said rider found in the previous Decree to mean that a Suit for eviction and recovery of possession would lie even in respect of a leasehold land against the Defendant, who claims protection under the Tamil Nadu Cultivating Tenants'' Protection Act.

Though the Civil Court does not have the jurisdiction to decide the question whether one is a Cultivating Tenant or not, such a question when raised incidentally in a Suit which is otherwise maintainable can be gone into and decided by the Civil Court. But, such incidental decision shall not have the effect of overriding the provision found in Section 16-A of the Tamil Nadu Cultivating Tenants'' Protection Act as held in Krishnasanty Pillai v. Arulmighu Adhi Satheeswarasamy Devasthanam, Kopurapuram by its Executive Officer, 2006 (3) LW 207. Such a decision made incidentally to the main issue by the Civil Court shall be based on prima facie finding. In the previous Suit, namely O.S. No. 140 of 2004, no doubt the Trial Court rendered a finding that the mother of the Appellants herein and after her, the Appellants herein were tenants in respect of the Suit property and that the land owner should be restrained from interfering with their possession without adopting due process of law for their eviction and recovery of possession. Of course the finding that the Appellants were the Cultivating Tenants was incidentally decided by the Court and the same could not be termed a final decision. Though the said finding, in strict sense, will not amount to res judicata in a subsequent Suit like the present one wherein the very same question as to whether the Appellants are the Cultivating Tenants entitled to the protection under the Tamil Nadu Cultivating Tenants'' Protection Act has arisen, the Appellate Court (Civil Court) should have referred the parties to the Competent Authority (Revenue Divisional Officer) and ought not to have ventured a decision as to whether the Appellants were Cultivating Tenants are not.

Apart from that, the interpretation given by the Lower Appellate Court that the due process of law referred to in the Decree passed in the earlier Suit does not mean a proceedings before the Revenue Divisional Officer (Competent Authority) for eviction and recovery of possession in the facts and circumstances of the case is also erroneous. Accordingly, the first and second questions framed as substantial questions are answered in favour of the Appellants and against the Respondents.

The learned Lower Appellate Judge, as indicated supra, has rendered an erroneous finding on a misconception of the provisions of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 that a Suit for recover)'' of possession in respect of a land held by a tenant as a Cultivating Tenant need not be filed in the Revenue Court and the Civil Court does have the jurisdiction to entertain such Suit. Such a finding is totally erroneous and accordingly Question No.3 framed as the third substantial question of law is answered in favour of the Appellant holding that a Suit for recovery of possession in respect of a leasehold land where the tenant/lessee claims protection under the Tamil Nadu Cultivating Tenants'' Protection Act, 1955 in a Civil Court will not be competent and that the Landlord should have approached the Revenue Divisional Officer (Competent Authority) for an order of eviction and recovery of possession.

For the reasons cited in the forgoing paragraphs and on the basis of the answers to the substantial questions of law, this Court comes to the conclusion that the Lower Appellate Court has committed an error in reversing the well considered Judgment and Decree of the Trial Court and that the Judgment and Decree of the Lower Appellate Court are liable to be set aside restoring the Decree passed by the Trial Court.

In the result, the Second Appeal is allowed, the Decree of the Lower Appellate Court setting aside the Decree passed by the Trial Court in O.S. No.93 of 2007 is set aside and the Decree of the Trial Court dismissing the Suit is restored. Considering the facts and circumstances of the case, this Court directs that the parties shall bear their respective costs in this Second Appeal.