COMMON JUDGMENT

1. The first defendant in O.S. Nos. 72 and 71 of 1977, District Munsifs Court, Tenkasi, is the appellant in these appeals. The first respondent/s in these Second Appeals, who are brothers, instituted the suits, O.S. 72 and 71 of 1977 praying for a declaration of their right to be in possession of an extent of one acre and one cent and one acre and 84 cents respectively and for an injunction restraining the appellant in these Second Appeals from dispossessing him from those properties. According to the case of the first respondent/s in these Second Appeals, the properties belonged to one Sivaramakrishna Iyer. Petchimuthu Pandia Thevan, the 9th respondent in these appeals, was cultivating the suit properties as a cultivating tenant, having taken them on lease from Sivaramakrishna Iyer. Sivaramakrishna Iyer executed a settlement deed on 24.2.1943 in favour of his third daughter, Avudai Thangammal, conferring a life interest on her and providing for further devolution of the properties in accordance with the terms thereunder. Avudai Thangammal died on 7.7.1965. Thereafter, disputes arose between the appellant in these Second Appeals and respondents 2 to 9 herein. The appellant claimed that by reason of the operation of the terms of the settlement deed, she became entitled to a half share in the properties dealt with under the settlement deed. This was disputed by respondents 2 to 9 in these Second Appeals. This led to the institution of a suit in O.S. 4 of 1969, District Munsifs Court, Tenkasi, on 25.11.1968 by the appellant herein and in that suit, the appellant herein prayed for a preliminary decree for partition and separate possession of her half share in the suit properties, which included the properties in these Second Appeals as well. On 28.1.1970, the learned District Munsif, Tenkasi, granted a preliminary decree for partition in favour of the appellant herein. An appeal therefrom was preferred in A.S. 177 of 1970. Sub Court, Tirunelveli and that appeal was also dismissed on 10.8.1972 and a further appeal preferred before this Court in S.A. 14 of 1973 was also dismissed. Subsequently, the appellant filed an application for the appointment of a Commissioner for dividing the properties and the Commissioner submitted a report, in accordance with which, a final decree was also passed on 4.12.1975. An appeal therefrom was preferred by the 9th respondent herein in A.S. No. 39 of 1977, District Court, Tirunelveli, and it was dismissed on 25.3.1978. The appellant was taking steps to secure delivery of possession of the properties allotted to her share in accordance with the final decree. While matters stood thus, the 1st respondent/s in these Second Appeals instituted O.S. No. 72 and 71 of 1977, stating that after Pisanam 1970, the 9th respondent, who was cultivating the properties, expressed his inability to cultivate the same and surrendered the properties to the appellant and respondents 2 to 8 and thereafter, the appellant and respondents 2 to 8, leased out the suit properties to the 1st respondent/s in these Second Appeals and as such, the 1st respondent/s in these second appeals were paying the melwaram to respondents 2 to 8, who in turn, paid the share of the appellant to her. In short, the 1st respondent/s in these Second Appeals, claimed that they were cultivating tenants or the suit properties entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act, Act 25 of 1955. In support of their claims that they are cultivating tenants, they also referred to their names being recorded in the Record of Tenancy Rights Register prepared under Tamil Nadu Act 10 of 1969. Claiming that they had paid rents till 1977 Pisanam and that the appellant during the first week of February, 1977 desired them to surrender the suit properties to her and that they refused to do so and further that the appellant was giving out that she would take possession of the suit properties by initiating delivery proceedings in O.S. 4 of 1969 the 1st respondent/s in these appeals instituted the suits referred to above for the reliefs set out earlier.

2. The appellant alone resisted the suit contending that the 1st respondent in these Second Appeals are not cultivating tenants entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act and that the entries in the Record of Tenancy Rights are all false and fraudulent, as no notice whatever was given to her and she was not made a party at all to those proceedings. It was also her further plea that the 9th respondent herein, who had in the course of O.S. 4 of 1969, colluded with respondents 2 to 8 in denying her title, had set up his sons, the 1st respondent/s in these appeals, to defeat her from getting possession of her share as per the final decree in O.S. 4 of 1969. The appellant disputed the surrender stated to have been effected by the 9th respondent herein and the subsequent leasing out of the suit properties in favour of the 1st respondent/s in these appeals by respondents 2 to 8 and her. The appellant thus denied the claim made by the 1st respondent/s in these Second Appeals as lessees and as cultivating tenants and also on the basis of the entries in the Record of Tenancy Rights Register and prayed for the dismissal of the suits.

3. Before the trial Court, on behalf of the 1st respondent/s in these Second Appeals, Exs. A1 to A2 were marked and they were also examined as P.Ws. 1 and 2, while on behalf of the appellant, Exs. B1 to B19 were filed and the appellant was also examined as D.W. 1. On a consideration of the oral as well as, the documentary evidence, the learned District Munsif found that the claim of the 1st respondent/s in these Second Appeals that they were the cultivating tenants under the appellant is true, valid and binding on the appellant, that the entries in the Record of Tenancy Rights Register are true, valid and binding on the appellant, that the appellant cannot question the validity of the entries in the Record of Tenancy Rights Register and that the claim of the 1st respondent/s in these appeals was not in any manner barred. On these findings, the suits were decreed. Aggrieved by this, the appellant herein preferred A.S. Nos. 332 and 331 of 1978, before the Sub Court, Tirunelveli. An application in I.A. No. 308 of 1979 was also filed by her for reception of certain documents as additional evidence. The lower appellate Court admitted the additional evidence tendered by the appellant and the documents were marked as Exs. B.20 and B.21. Dealing with the merits of the controversy between the parties, the lower appellate Court found that the surrender of the suit properties by the 9th respondent is not true and that the leasing out of the properties stated to have been made by the appellant and respondents 2 to 8 to the 1st respondent/s in these appeals, is not true. However, the lower appellate Court took the view on the basis of the entries in the Record of Tenancy Rights Register, that the 1st respondent/s in these Second Appeals are the cultivating tenants and it would not be open to the appellant to question the status of the 1st respondent/s in these appeals as cultivating tenants before the Civil Court and therefore, no interference with the judgement and decree of the trial court was called for. On those conclusions, the appeals were dismissed. It is the correctness of this, that is challenged by the appellant in these second appeals.

4. The learned counsel for the appellant contended that the entries in the Record of Tenancy Rights Register prepared under the provisions of Tamil Nadu Act 10 of 1969 had been made without any notice to the appellant and without making any enquiry and the names of the 1st respondent/s in these appeals had been surreptitiously included therein and such an entry cannot be said to be one made after conforming to the procedure prescribed under Tamil Nadu Act 10 of 1969 and therefore, those entries cannot be put against the appellant. It was also further submitted that when even according to the lower appellate Court, the surrender of the suit properties by the 9th respondent and the subsequent leasing out of the properties by the appellant and the respondents 2 to 8 in favour of the 1st respondent/s in these Second Appeals had been found to be not true, it was not open to the Court to grant relief merely on the basis of the entries, which according to the appellant, were fradulently and surreptitiously made without any notice to her and supressing her interest in the properties as land owner. Referring to the grant of the relief of injunction, the learned counsel for the appellant pointed out that after the 9th respondent herein had failed in his attempts to resist the claim of the appellant to the suit properties, he had set up his sons to obstruct the appellant from taking possession of the suit properties without any legal basis therefor and as such, the 1st respondent/s in these Second Appeals would not be in a better position than that of trespassers and therefore, no injunction could issue in their favour. On the other hand, the learned counsel for the 1st respondent/s in these appeals contended that the surrender by the 9th respondent and the subsequent leasing out of the properties by the appellant and respondents 2 to 8 in favour of the 1st respondent/s in these appeals is true, which is also supported by the entries in the Record of Tenancy Rights Register and therefore, no interference with the conclusion of the courts below is called for.

5. There is no dispute that the properties in these Second Appeals belonged to Sivaramakrishna Iyer and that he executed a settlement deed on 24.2.1943 in favour of his third daughter Avudai Thangammal. Equally, there is no dispute that the appellant instituted on 25.11.1968 the suit O.S. 4 of 1969, District Munsifs Court, Tenkasi, for partition and separate possession of her half share in the properties, inclusive of the suit properties and obtained a preliminary decree on 28.1.1970. Admittedly, to this suit, the 9th respondent in these second appeals, was a party. The surrender by the 9th respondent is stated to have taken place according to the 1st respondent in S.A. No. 701 of 1980, examined as P.W. 2, in March, 1970. The surrender is said to be oral. The subsequent leasing out by the appellant and respondents 2 to 8 is also stated to be oral. Significantly, in the plaint, there is nothing mentioned as to when the lease was granted in favour of the 1st respondent in these second appeals. Further, the 1st respondent in S.A. No. 702 of 1980, examined as P.W. 1, has frankly admitted that there is no mention of the date of lease. He would also accept that no steps were taken to agitate their tenancy rights in the course of the further proceedings in O.S. 4 of 1969, instituted by the appellant. There is no acceptable evidence to show that rents were paid. There are no receipts. It is thus clear that there is no acceptable evidence regarding the leasing out of the properties after a surrender by the 9th respondent. Equally, there is no evidence to establish the surrender by the 9th respondent in these Second Appeals pleaded by his sons, the 1st respondent/s in these appeals. A tenancy right is a valuable right and it is impossible to believe that there was an oral surrender by the 9th respondent without anything in writing in support of such surrender. The conduct of the 9th respondent is also significant. In the written statement filed by him in O.S. 4 of 1969, D.M.C., Tenkasi, marked as Ex. B.16, he even went to the extent of denying the title of the appellant. If the 9th respondent had orally surrendered the suit properties in March, 1970, as now claimed by his sons, it is rather difficult to understand as to how the 9th respondent issued notices under Exs. B20 and B21 dated 6.8.1976 and 19.8.1976, respectively, regarding the harvest of the crops, which stood in the properties. The issuance of Exs. B20 and B21 by the 9th respondent six years after the so-called, surrender, belies the case of the 1st respondent in these appeals that there was a surrender in 1970. In addition, it has to be remembered that by the time the surrender is stated to have taken place, the appellant had already obtained on 28.1.1970 a preliminary decree in respect of her half share. It is impossible to believe that the appellant, who had obtained a preliminary decree, would have been inclined to accept an oral surrender. At that stage, the appellant also could not have known what properties are likely to be allotted to her share. It is therefore impossible to accept that in anticipation of the allotment of the suit properties to the appellant, she had accepted a surrender from the 9th respondent herein. Further, it is seen that the 9th respondent had preferred an appeal against the preliminary decree in O.S. 4 of 1969 after the surrender and the so called fresh tenancy. If really the surrender and the fresh tenancy in favour of the 1st respondent in these Second Appeals was true, there was no need for the 9th respondent to have preferred an appeal at all. Again, the 9th respondent in Ex. B.18 dated 31.1.1977 had claimed that he was in possession of the properties as a cultivating tenant. There was no reference to the surrender or the fresh tenancy by the appellant and the respondents 2 to 8 in favour of the 1st respondent/s in these appeals. Again in the course of the proceedings in I.A. 1443 of 1973 relating to the mesne profits, the 9th respondent had asserted that he was the cultivating tenant and there is no mention either of surrender or the fresh tenancy. Above all, it is seen from the judgment of this Court in C.R.P. No. 868 of 1979, to which my attention was drawn by the learned counsel for the appellant that even in the course of execution proceedings, some obstruction was offered only by the 9th respondent herein and not by the 1st respondent/s in these Second Appeals. It is thus obvious that the 9th respondent having contested the suit instituted by the appellant in O.S. 4 of 1969 and lost it before all the courts, had conceived of the device of a surrender and a fresh lease in favour of his sons, the 1st respondent in these appeals, to defeat the rights of the appellant. On a consideration of the available materials, the lower appellate court was quite right in concluding that the surrender stated to have been effected is not true and that the lease said to have been granted by the appellant and respondents 2 to 8 in favour of the 1st respondent in the second appeals is also not true.

6. There is also one other circumstance which would throw serious doubts about the claim of the 1st respondent in these Second Appeals that they are lessees. Under Ex. B.2 dated 28.1.1970, the appellant succeeded in obtaining a preliminary decree for partition in respect of her half share. In other words, the right of the appellant to a half share of the properties in O.S. 4 of 1969, D.M.C. Tenkasi, was upheld, though it was not then known as to what items of properties were likely to be allotted towards her half share. In order to be binding on the appellant, the lease, if any, ought to have been granted by her also. That has not been substantiated by any evidence. Even otherwise, the appellant could at best be considered to be a co-owner with respondents 2 to 8, who were entitled to the other half share. That respondents 2 to 8 as co-owners, purported to lease out the entirety of the suit properties in favour of the 1st respondent/s in these Second Appeals, is also not clearly made out, for respondents 2 to 8 have remained ex-parte. Even on the assumption that respondents 2 to 8 as co-owners, granted a lease in favour of the 1st respondent/s in these appeals, it would not, in any manner, enable the 1st respondent/s in these appeals to claim the benefits as cultivating tenants, in view of the principle laid down by the decision in V. Ratnam & ors. v. S.A.Arunachalam Chettiar & ors. (90 L.W. 633) (D.B.). In that case two out of three co-owners let out the premises to the third co-owner and in a suit for partition and separate possession, it was contended by the tenant co-owner that he came into occupation of the building in that case as a tenant under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and therefore, even though a right of partition was available in common law, yet by reason of the statutory protection to the tenants, the plaintiffs therein were entitled to partition, but were not entitled to separate possession. In negativing this contention, it was pointed out that in the case of co-owners, it would be idle and indeed strange for any one of them to lay their fingers upon any part of the joint property and claim that it is his or their own and that emphasis upon the ownership of an identifiable part of common properties will be available only after final decree for partition is obtained; but that during the pendency of the proceedings for final decree, none amongst the co-owners can project any title to a definite portion of the joint property and therefore, the mere acceptance of possession of a part of whole by one amongst such co-owners, does not give right as a tenant to the other. In this case also, even assuming that respondents 2 to 8 had granted a lease, in view of the principle laid down in the decision referred to above, respondents 2 to 8 could not have granted a valid lease of the suit properties in a manner which would be binding upon the appellant, whose right had been declared under the decree in O.S. 4 of 1969, D.M.C., Tenkasi, without reference to her, while asserting their own exclusive ownership even with reference to the share of the appellant in those properties. On this ground also, the claim of the 1st respondent/s in these Second Appeals that they are lessees cannot be countenanced.

7. That leaves for consideration the rights based upon the entries under the Record of Tenancy Rights Act, 10 of 1969. The relevant documents in this connection are Exs. A10 and A11 in so far as Second Appeal No. 701 of 1980 is concerned and Exs. A2 to A5 in so far as Second Appeal No. 702 of 1980 is concerned. These entries have been made on the same day, namely, 5.6.1972. A perusal of the documents referred to above, does not show that the appellant, whose right has been declared under the preliminary decree in O.S. 4 of 1969, D.M.C. Tenkasi, was made a party to the proceedings under the Record of Tenancy Rights Act. It is seen therefrom that some persons against whom the appellant had instituted the suit for partition alone had been shown as land owners. In respect of suit properties, the final decree in O.S. 4 of 1969, D.M.C. Tenkasi was passed only under Ex. B.19 dated 4.12.1975. Till then, there was no knowing whether the suit properties would be allotted to the share of those persons, whose names have been mentioned in Exs. A2 to A5 and A10 and A11. It is also seen that no notice of the enquiry under the Record of Tenancy Rights Act was given to the appellant. There is no evidence to show that the appellant was either issued a notice regarding the proceedings or was heard in the course of the proceedings. It is thus seen that without reference to the person interested in the properties, who had also obtained a decree in respect thereof, the proceedings under Exs. A2 to A5 and Exs. A10 and A.11 have taken place and had culminated in the recordings of the names of the 1st respondents in these Second Appeals. If, as found earlier, the surrender by the 9tn respondent is not established and the subsequent lease is also not made out, then, it is difficult to accept the entries under Exs. A2 to A5. and A10 and A11 as having been made after conforming to the procedural requirements under Tamil Nadu Act 10 of 1969. In other words, the entries have been made behind the back of the appellant, who had got a decree in respect of the suit properties, without notice to her and without making any enquiry. Obviously therefore, the entries cannot be put against the appellant to confer the status of cultivating tenants on the 1st respondent/s in these Second Appeals. The appellant had stated that these entries had been made surreptitiously and fraudulently. From the manner in which these entries have been made without notice to the person interested and without any enquiry, it is obvious that the 9th respondent in these second appeals had, with the active connivance and assistance of his sons, maneuvered the entries by resorting to a suppression of the real state of affairs as well as the ownership of the properties declared by the decree of Court. The 9th respondent was a party to O.S. 4 of 1969 and had indeed preferred an appeal therefrom. Being fully aware of the rights of the appellant, he had set up his sons to show the names of other persons, not interested, as the land owners and had succeeded in securing entries in the Register of Record of Tenancy Rights in the names of his sons. The 9th respondent and the 1st respondent in these appeals have thus, by suppressing the adjudication by Court in O.S. 4 of 1969 as well as the existence of the appellant and her interest in the properties, secured Exs. A2 to A5, A10 and A11. Such entries secured by concealing the real state of affairs and without an opportunity to the persons interested to show cause against the making of entries, cannot at all be considered as conclusive, even for the purpose of Tamil Nadu Act 10 of 1969. In Vishwa Vijay v. Fakhrul Hassan (A.I.R. 1976 S.C. 1485), the Supreme Court pointed out that while it is true that entries in the Revenue record ought generally, to be accepted at their face value and the Courts should not embark upon an appellate enquiry into their correctness, the presumption of correctness can apply only to genuine and not fraudulent entries. It was also pointed out that the distinction is fine, but real, in that, one cannot challenge the correctness of what the entry in the revenue records states, but the entry itself may be attacked as made fraudulently or surreptitiously and fraud and forgery rob a document fall its legal of effect and cannot found a claim to possesory title. From the manner in which Exs. A2 to A5., A10 and A11 have been brought about, it is obvious that the 9th respondent and his sons have fraudulently secured these entries without disclosing the real state of affairs and therefore, no reliance can be placed upon the entries. It would also be useful in this connection to refer to the decision in Balasubramanian v. Shamsu Thalreez (98 L.W. 536) D.B. where the conclusive nature of the entries was put forth as debarring the Court from embarking upon an investigation. While generally stating that the civil court cannot undertake such an enquiry, it was pointed out that there are exceptions to the rule, such as where the orders have been obtained by fraud, collusion, etc. This decision was rendered with reference to the entries made under Tamil Nadu Act 10 of 1969. This decision would also enable the Court to ignore the entries under Exs. A2 to A5, A10 and A11 as having been fraudulently secured by the 9th respondent in favour of his sons, the 1st respondent/s in these Second Appeals, when even according to the lower appellate Court, there was no lease at all, it is impossible to understand as to how even without a lease in favour of the 1st respondent/s in these Second Appeals, they came to be recorded as cultivating tenants. On a careful consideration of the circumstances under which Exs. A2 to A5, A10 and A11 have come into existence, it is obvious that these entries have been procured by suppression of facts and by the exercise of fraud. Thus, the entries cannot be pressed into service by the 1st respondent/s in these Second Appeals to claim or project rights against the appellant in respect of the suit properties.

8. There is yet another aspect, which would also disentitle the 1st respondent/s in these Second Appeals from claiming rights as cultivating tenants on the basis of the entries Exs. A2 to A5 and A10 and A11. In Natesa Nainar v. Sri Karikudinathaswamy Devastanam, Marudhanallur (97 L.W. 390) I had occasion to consider the purpose for which and the nature of the entries made in the Record of Tenancy Rights Register. In that connection, it was pointed out that the entry in the Record of Tenancy Rights Register by itself does not confer rights as a cultivating tenant on the appellant in that case, for the main aim and purpose of the provisions of Tamil Nadu Act 10 of 1969 is only to prepare and maintain a record of tenancy rights in respect of agricultural lands in Tamil Nadu an d that there is no provision in Tamil Nadu Act 10 of 1969 to show that an entry made in the Record of Tenancy Rights Register confers a right as a cultivating tenant on a person, whose name is so entered. It was also emphasized that the provisions of Tamil Nadu Act 10 of 1969 are not declaratory of rights as cultivating tenants, but pertain to the preparation of the record and that it is common knowledge that there maybe persons fulfilling the definition of the term cultivating tenant, at all, but nevertheless manage to secure an entry to that effect in his name and that merely because a name is found in the Record of Tenancy Rights Register, such a person cannot obtain and secure rights as a cultivating tenant. In this case, as seen earner, there is no proof of a lease having been granted in favour of the 1st respondent/s in these Second Appeals and if so, it is a great wonder as to how the names of the 1st respondent in these Second Appeals came to be entered as cultivating tenants. Even assuming that there are entries in the Record of Tenancy Rights Register, merely on the strength of those entries, no right as cultivating tenant can be declared in favour of the 1st respondent/s in these Second Appeals. Consequently, the lower appellate Court was in error in holding that the entries could not be challenged and that on the strength of the entries, the 1st respondent/s in these appeals would be entitled to the reliefs prayed for by them in the suits

9. When the 1st respondent in these appeals are not tenants, it follows that even if they are in possession, such possession cannot be protected by an order of injunction. When the lease set up by the 1st respondent/s in these Second Appeals in their favour is not made out, then, it follows that their possession is not lawful and such unlawful possession cannot be preserved or protected. No Court by its order can help a party found to be in wrongful possession against the lawful owner. Under those circumstances, the possession of the 1st respondent in these appeals has to be treated as that of trespassers and therefore, the courts below were in error in having granted an injunction.

10. Thus, on a careful consideration of the facts and the circumstances of the case, it has to be held that the courts below were in error in having granted a decree in favour of the 1st respondent in these second appeals. Consequently, the Second Appeals are allowed, and the suits O.S. Nos. 72 and 71 of 1977, D.M.C., Tenkasi, will stand dismissed with costs of the appellant throughout, payable by the 1st respondent/s in these Second Appeals.