S. Padmanabhan, J.
1. While the first defendant in O.S. No. 174 of 1974 on the file of the Court of the Subordinate Judge, Coimbatore, is the appellant in A.S. No. 346 of 1975, the 2nd defendant is the appellant in A.S. No. 88 of 1976. The plaintiff Muruganna Gounder, filed the suit for specific performance of Exhibit A-8, dated 5th December, 1973, the agreement for sale executed by the 1st defendant (the appellant in A.S. No. 346 of 1975) in respect of the suit properties for Rs. 18,750. Under the said agreement for sale the 1st defendant received an advance of Rs. 2000 and undertook to execute the sale on receipt of the balance of consideration of Rs. 16,750 within a period of 3 months from the date of the agreement. The suit property is an extent of 5.96 acres comprised in S. No. 408/6 and 408/8. The plaintiff has always been ready and willing to perform his part of the agreement. Though he called upon the 1st defendant to receive the balance of sale consideration and execute the sale deed the latter was avoiding. Later on, the plaintiff came to know that the 1st defendant had executed Exhibit A-1 sale deed, dated 12th February, 1974 in favour of the second defendant for Rs. 16,000. The said sale deed is said to have been executed pursuant to an oral agreement for sale by the 1st defendant in favour of the.2nd defendant. It is averred by the plaintiff that there Was no such oral agreement and though the consideration mentioned in Exhibit A-1, document was only Rs. 16,000 actually the 2nd defendant paid Rs. 24,000 to the 1st defendant. Exhibit A-1 sale deed itself was secretly executed at Coimbatore and not at Avanashi, which would have been the normal place for registration, just for the purpose of preventing the plaintiff from coming to know of the execution and registration of Exhibit A-1 sale deed. Even at the time the 2nd defendant took Exhibit A-1 sale deed he was aware of the prior agreement in favour of the plaintiff and that consequently he was not a bona fide purchaser for valuable consideration without knowledge of the earlier agreement for sale in favour of the plaintiff. It is on
these allegations the plaintiff has filed the suit for the specific performance.
2. The 1st defendant in his written statement contended that the 2nd defendant was originally the tenant of the suit lands and that his tenancy rights have been recognised by the Tahsildar. To avoid any hitch with the 2nd defendant, the 1st defendant had agreed to sell the properties to the former for Rs. 16,000, as early as Ippasi 1973. As per the said oral agreement the sale deed has to be executed within six months. Subsequently, the plaintiff persuaded 1st defendant to enter into the suit agreement on the representation that he would get the consent of the 2nd defendant and that he would himself take possession of the suit property from the 2nd defendant. However, when the 2nd defendant came to know of Exhibit A-8 agreement in favour of the plaintiff, he refused to surrender possession and insisted that the 1st defendant should execute a sale deed in his favour pursuant to the earlier oral agreement for sale. As a result a Panchayat was held on 10tn Feburary, 1974 and the Panchayatdars returned a verdict that the 1st defendant should return the advance amount of Rs. 2000 to the plaintiff, that Exhibit A-8 agreement for sale in favour of the plaintiff should stand cancelled, that the plaintiff should return the document to the Panchayatdars and that the 1st defendant should sell the property to the second defendant. The 1st defendant denied that the sale was for Rs. 24,000 and not for Rs. 16,000. He further stated that the only remedy of the plaintiff was to return of Rs. 2000 from the 1st defendant.
3. The second defendant filed a separate written statement stating that he was a lessee in possession of the property for the last 20 years and that his rights as a lessee has been recognised by the Tahsildar under the Record of Tenancy Rights Act. When in Ippasi 1973 he learnt that the 1st defendant was intending to sell the property he approached the 1st defendant and offered to purchase the property for Rs. 16,000 to which the 1st defendant agreed. Pursuant to the said oral agreement he paid the sum of Rs. 2000 as advance payment to the 1st defendant and agreed to take the sale deed on payment of the balance consideration within a period of six months from the date of agreement. When he came to know of Exhibit A-8 agreement between the 1st defendant and the plaintiff, be insisted on the document of sale being executed in his favour as a result of which a panchayat took place on 10th February, 1974. The Panchayatdars directed that he being a tenant in possession with an anterior agreement for sale in his favour was entitled to take the sale deed from the 1st defendant and that the plaintiff should receive back the advance paid by him and return the document. The plaintiff also bowed to the decision of Panchayatdars. He having taken Exhibit A-1 sale deed subsequent to the decision of the Panchayatdars, he was a bona fide purchaser for valuable consideration. He pleaded that Exhibit A-8 agreement was no longer subsisting and could not be specifically enforced. In any event, he pleaded that he was entitled to be in possession as a tenant and to fall back on his rights as a tenant and that he was entitled to protection and benefits of the Tamil Nadu Cultivating Tenants Protection Act.
4. On these pleadings the trial Court raised the following issues for consideration:
1. Whether the agreement of sale dated, 5th December, 1973 in favour of the plaintiff is true, valid and binding on the 2nd defendant?
2. Whether the prior oral agreement pleaded by the defendants is true?
3. Whether the 2nd defendant is a cultivation tenant of the properties and entitled to the protection?
4. Whether the 2nd defendant is a bona fide purchaser of the properties without the knowledge of the agreement dated 5th December, 1973?
5. Whether the alleged Panchayat is true?
6. To what relief?
The trial Court found that the prior oral agreement pleaded by the defendants was not true and that the agreement for sale dated 5th December, 1973 in favour of the plaintiff was true and valid. The trial Court also found that the alleged panchayat said to have been held on 10th February, 1974 was not true and that the 2nd defendant was not a bona fide purchaser for valuable consideration without knowledge of the agreement dated 5th December, 1973. The trial Court also found that the 2nd defendant was not a cultivating tenant of the property and was not entitled to the protection of the Tamil Nadu Cultivating Tenants Protection Act. At the time of arguments a point was raised before the trial Court that in view of the fact that under Exhibit A-21, the 2nd defendant had been recognised by the Record Officer as a tenant, the civil Court had no jurisdiction to go behind the said order. The trial Court negatived this plea. In the result, the trial Court passed a decree as prayed for with costs.
5. Both the defeated defendants have filed the above two appeals. The main argument was addressed by the learned Counsel for the appellant in A.S. No. 88 of 19 76 and the said arguments were adopted by the learned Counsel for the appellant in A.S. No. 346 of 1975. Learned Counsel for the appellants raised the following contentions:
1. The finding of the trial Court that the alleged oral agreement for sale of the suit property by the 1st defendant in favour of the second defendant was not there and that no panchayat was held on 10th February, 1974 was erroneous.
2. The 2nd defendant must in any event have been found to be a bona fide purchaser for valuable consideration.
3. The 2nd defendant ought to have been found to be in possession of the suit property as a cultivating tenant He has been recorded as a cultivating tenant by the Record Officer under the Record of Tenancy Rights Act in Exhibit A-21 proceedings. Consequently, under Section 16-A of the said Act, the civil Court was bound by the said order and it had no right to go into the question once again. Consequently, the plaintiff would not in any event be entitled to a decree for recovery of possession of the suit property from the second defendant in the suit.
I shall first take up for consideration the first two contentions strenuously put forward by the learned Counsel for the appellants. As already stated, the suit property is an undivided half share of an extent of 5.96 acres in S. No. 408/6 and 408/8. It is not disputed by the defendants that the first defendant executed Exhibit A-8 agreement for sale in favour of the plaintiff on 5th December, 1973 undertaking to sell the property to the plaintiff for Rs. 18,750 and that he received an advance of Rs. 2,000 on the date of Exhibit A-8. In the circumstances when the defendants set up a case of an oral agreement for sale by the 1st defendant in favour of the 2nd defendant to sell the identical property for Rs. 16,000 anterior to the date of Exhibit A-8 and further that consequent on the said oral agreement and the execution of Exhibit A-8 agreement for sale by the 1st defendant in favour of the plaintiff, a Panchayat was held on 10th February, 1974 under which the Panchayatdars returned a verdict that Exhibit A-8 should stand cancelled and that the plaintiff agreed to the same the burden is heavy on the defendants to prove their case. A part from the defendants 1 and 2, seven witnesses have been examined on the side of the defendants. The written statement does not give any specific date on which the oral agreement is said to have taken place. It is merely mentioned that the agreement took place in Ippasi 1973. The 2nd defendant has stated in his written statement that when he learnt that the 1st defendant was intending to sell away the suit property he approached him in Ippasi 1973 and offered to purchase the property for Rs. 16,000. The 1st defendant agreed to do so, and accordingly the 2nd defendant had paid an advance of Rs. 2,000 in Ippasi itself and concluded the agreement for sale. D.W. 7 Ramasami Gounder has deposed that one Marappa Gounder, Murugesa Gounder, Arumugha Gounder and himself talked about the sale of the suit property to the 2nd defendant in Ippasi 1973 The talk took place in the 1st defendant's shop and it was decided that the 1st defendant should s 11 the property for Rs. 16,000- D.W. 8 Murugesa Gounder also has deposed on the same lines as D.W. 7. It has to be noted that neither D.W. 7 nor D.W. 8 has spoken to the fact that any difference of opinion existed between defendants 1 and 2 on that date as regards the quantum of consideration for which the property should be sold by the 1st defendant to the 2nd defendant which needed any arbitration by the Panchayatdars. But it is significant to note that the 1st defendant had stated that there was difference of opinion as regards the sale c3nsideration between himself and the 2nd defendant and that it had to be settled by arbitration. According to defendants 1 and 2 there was a Panchayat for fixing the sale price on the date of the prior agreement. The written statement does not mention about any panchayat being held for the fixation of the price. The 2nd defendant D.W. 3 has given evidence that his father knew ahout the anterior oral agreement of sale with the 1st defendant and as a matter of fact the sum of Rs. 2,000 to be advanced to the 1st defendant was given by his father. If that were so, one would expect that the father of the 2nd defendant would have referred to the anterior oral agreement by the 1st defendant in favour of his son, the 2nd defendant in Exhibit A-9 notice dated 4tti January, 1974 sent by him to the plaintiff. Curiously, no reference at all is made about this oral agreement in Exhibit A-9. On the other hand, the 2nd defendant's father has categorically mentioned in Exhibit A-9 that he has been in possession of the suit property as a lessee from 1st December, 1965. Further D.W. 3 himself has admitted in his evidence that he came to know of Exhibit A-8 within a week after its execution. If his case that he has been in possession of the property as a tenant for nearly 20 years and that because of that he entered into an agreement for sale with the first defendant for the purchase of property in Ippasi 1973 is true, he would have immediately taken steps to inform the plaintiff about the anterior oral agreement in his favour. However, he remains quiet till 16th January, 1974 on which date alone he sends a notice to the plaintiff. In this connection, it is also necessary to state that while D.W. 3 has stated that he had been in possession of the suit property for nearly 20 years, the 1st defendant has categorically asserted in his chief examination that till 1971 he was personally cultivating the property and that the 2nd defendant was assisting him in his work. This also clearly falsifies the case of the defendants that because the 2nd defendant was already in possession of the property as a cultivating tenant he approached the 1st defendant for the sale of the property to him and that resulted in an oral agreement for sale. In fact the 2nd defendant himself has contradicted the 1st defendant by stating that it is not correct to state the he was assisting the 1st defendant in cultivation. It has to be noted that the 1st defendant has clearly stated in his evidence that the plaintiff approached him and offered to purchase the property on his own responsibility of tackling the second defendant and recover possession of the property from him. On the basis of this he, the 1st defendant immediately sent word to the 2nd defendant but the 2nd defendant did not give him any reply. Therefore, he felt disappointed and he entered into the agreement for sale with the plaintiff. If really there was an oral agreement in favour of the second defendant, the second defendant would have immediately gone to the tint defendant and insisted that he should not enter into any agreement of sale with the plaintiff. That he did not do this also falsifies the case of the alleged oral agreement.
6. Allied to the question regarding the truth or otherwise of the alleged anterior oral agreement, it has also to be considered whether there was any Panchayat held on 10th February, 1974 as has been alleged by defendants 1 and 2 in their written statements. As regards the panchayat the first defendant as D.W. 1 has deposed that when the second defendant complained to him about his having entered into an agreement for sale with the plaintiff and wanted him to execute a sale in his favour the first defendant told him that they should, it necessary, settle the matter under panchayat. He has further stated that he subsequently came to know that many panchayats were held. There is absolutely no evidence in the case or even a plea in the written statement that there was any panchayat other than the one that was said to have been held on 10th February, 1974. He has further deposed that the plaintiff went and told him that the second detendant has arranged for a panchayat and that the villagers and the president of the panchayat were putting pressure on him and therefore, things should be done after due deliberation. The first detendant is clear that he did not send for the Panchayatdars. According to him, the reason which induced, the Panchayatdars to direct the sale deed being executed in favour of the second defendant was that he was the only blacksmith in the village. The second defendant as D.W. 3 has stated that he did not call anybody as Panchayatdar. He has stated that the first defendant asked him to bring D.W. 9, and when he went to bring him all the Panchayatdars were present. He has also stated that D.W. 8 and one of the alleged Panchayatdars and the plaintiff contested an election and they were not on talking terms. Of course, he feigned ignorance when a suggestion was made to him whether the plaintiff along with the other villagers had him an application to the authorities objecting to the issue of a revolver licence to D.W. 8. D.W. 7 has stated that the second defendant sent for him and the other Panchayatdars. He has also stated that the reason for the decision of the panchayat that the property should be sold to him was that the second defendant happened to be the only carpenter in the village. According to him the first defendant and the plaintiff brought the other Panchayatdars. This is not spoken to by the first defendant, while the plaintiff has denied the very holding of the panchayat itself. D.W. 8 stated that he did not know who sent word to the plaintiff asking him to come for the panchayat. D.W. 9, the President of the panchayat has stated that the amount of Rs. 2,000 was with him for two to three months, but the plaintiff refused to take the money and return the document. The trial Court has also referred to Exhibit A-20, the notice sent by the plaintiff to the first defendant which ought to have been delivered to the first defendant on 11th February, 1974 but the endorsement on the cover of Exhibit A-20, shows that it was taken to the first defendant on a number of times and that he was not available. When D.W. 1 was specifically questioned about this he has stated that he did not remember whether he was absent from the place and that if he had been at the place he would have received the letter. Exhibit A-20, office copy of which is Exhibit A-4 was sent on 8th February, 1974. By Exhibit A-4 or Exhibit A-20, the plaintiff had called upon the first defendant to execute the sale deed in terms of Exhibit A-8 agreement for sale. It is unbelievable that the plaintiff, two days after he sent Exhibit A-4 would have agreed to the holding of a panchayat and submitted to the verdict of the panchayat cancelling Exhibit A-8, agreement for sale. The evidence of the first defendant as D.W. 1 that if he were in Avanashi at the time Exhibit A-20 was sent he would have received the same would show that he was not in Avanashi itself at the relevant period or he deliberately evaded receipt of Exhibit A-20 notice and in collusion with the second defendant set up a false case of alleged panchayat. The lower Court also took note of the fact that if really the panchayat was true there was no necessity for the first defendant to issue a notice under Exhibit A-5 dated 15th February, 1974. While the panchayat is said to have been held on 10th February, 1974. Exhibit A-1 has been executed and registered at coimbatore on 12th February, 1974. D.W. 2 is a scribe of the original of Exhibit A-1. D.Ws. 7 and 8 have attested. The original sale deed has not been produced. The alleged reason given by D.W. 2 for registering the document at Coimbatore and not at Avanashi which was normally the place of registration of Exhibit A-1 sale deed is that no stamp papers were available at Avanashi. The trial Court has discussed the evidence of D.Ws. 2 and 3 and has not accepted the explanation. The proximity of the dates of the panchayat and the execution of Exhibit A 1 sale deed and the fact that the attestors and the scribe were all taken from Avanashi would go to show that the document was executed at Coimbatore only with the intention that the plaintiff should not come to know of the execution and registration of Exhibit A-1 sale deed. It is also borne out by the evidence that there was enmity between the plaintiff and D.W. 7, and D.Ws. 7 and 9 are co-brothers. There is also suggestion of enmity between D.W. 8 and the plaintiff on the ground that the plaintiff had not paid the commission due to the former for having purchased a land. On a careful examination of the oral evidence let in on the side of the defendants which are discrepant. I agree with the conclusion of the trial Court that the alleged anterior oral agreement for sale of the suit property between defendants 1 and 2 is not true. I further confirm the finding of the trial Court that the alleged Panchayat said to have been held on 10th February, 1974 under which the plaintiff is said to have agreed to have Exhibit A-8, agreement for sale, cancelled, is also not true. In the light of those findings, I further hold that Exhibit A-8 agreement for sale is true and valid and subsisting on the date of suit.
7. There is no dispute that at the time the second defendant took Exhibit A-1 sale deed from the first defendant he was aware of Exhibit A-8, agreement for sale executed by the first defendant in favour of the plaintiff. When once the plea of the defendants regarding an anterior oral agreement and the alleged panchayat have been found it has been only to be found that the second defendant is not a bona fide purchaser for valuable consideration.
8. The next contention of the learned Counsel for the appellant is that the second defendant is a cultivating tenant in possession of the suit property and has been so for the last 20 years. I have already referred to the evidence of the first defendant as D.W. 1 that till 1971, he was personally cultivating the suit property and that the second defendant was only assisting him. In this respect the second defendant as D.W. 3 has contradicted the first defendant. He has also denied the fact that he and his father were pannials under the first defendant. He has admitted that his father gave Exhibit A-9 notice to the plaintiff claiming himself to be in possession as a cultivating tenant.
9. In his cross-examination D.W. 2 has stated that by mistake in Exhibit A-2 it has been stated that he had been a cultivating tenant for 20 years. He has not produced any receipts for the payment of the lease amount. He has admitted, it is not stated in Exhibit A-1 that he was in possession as a cultivating tenant. Added to all this, the trial Court has laid emphasis on the following words used be the vendor, the first defendant in Exhibit A-8. In the circumstances, I agree with the trial Court that the plea of the second defendant that he was in possession of the suit property as a tenant is not true and that his alleged possession can only be traced to Exhibit A-1 tale deed. However, learned Counsel for the appellant draws my attention to the fact that under Exhibit A-21, dated 18th January, 1974, the second defendant had been recognised as a tenant by the Record Officer under the Tamil Nadu Agricultural Lands Record of Tenancy Act, 1969 (Tamil Nadu Act X of 1969). What happened was, defendants 4 to 6 who were in possession of the other half of suit property No. 408/6 and 408/8, applied under the said Act to the Record Officer for being recognised as tenants. During the said enquiry, the officer enquired of defendants 4 to 6, as to who was in possession of the other half and on the basis of their answer that the second defendant was in possession the second defendant's name was included as a tenant. However, on the basis of Exhibit A-21 order, the learned Counsel argues that under Section 16-A of the said Act no civil Court shall have jurisdiction in respect of any matter which the Record Officer, the District Collector or other Officer or Authority empowered by or under this Act has to determine and no injunction shall be granted by any Court in respect of any action taken or to be taken by such officer or authority in pursuance of any power conferred by or under this Act.
10. A Bench of this Court in Muniyandi v. Rajangam Iyer : AIR1976Mad287 in dealing with the jurisdiction of the civil Court held as follows:
Section 16-A of Act X of 1969 admits of no doubit that a civil Court has no jurisdiction to decsde any matter which the Record Officer, District Collector or other officer or authority empowered by or under the Act should determine. The Court is also forbidden from granting injunction in respect to any action taken or to be taken by such officer or other authority in pursuance of any power conferred by or under the Act. The Act indicates and provides for the remedy to correct the record by following the procedure laid down, Until the contrary is proved, or a new entry is lawfully substituted therefor, the entry shall be presumed to be correct.
Mr. Gopalaratnam for the respondent submits that Exhibit A-21 amounts only to a draft declaration under Section 3(4) of the Act. After the draft declaration the further procedure contemplated under Sections 3(5), 3(6), 3(7) and 3(9) has to be followed, and thereafter under Section 3(9) the record officer shall prepare the final record of tenancy right for the village and the said final record shall be published in the Fort St. George Gazette and the record so published shall be called the approved record of tenancy rights. The approved record of tenancy rights shall also be published in the District Gazette of the District in which the village is situated and in such other manner as may be prescribed. This is laid down in Section 3(10). Under Section 15 an entry in the approved record of tenancy rights shall be presumed to be true and correct until the contrary is proved or a new entry is lawfully substituted therefor. Therefore, according to the learned Counsel for the respondent no finality attaches itself to a draft declaration made in Exhibit A-21 order and that consequently the bar of suit under Section 16-A of the Act cannot be attracted. The learned Counsel further submits that on the facts of the present case it would be unnecessary for me to go into this question as it does not properly arise for consideration at all.
11. Mr. Gopalaratnam submits that even assuming without admitting that the second defendant was in possession as a cultivating tenant prior to the date of Exhibit A-1, the moment he took Exhibit A-1, from the first defendant, his character of possession changed from that of a lessee into that of the owner. Section 111(d) of the Transfer of Property Act states - 'A lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right'. In Mulla's Transfer of Property Act, 1882, 6th Edn., at page 741, it is stated as follows:
When a leasehold and a reversion coincide there is a merger of a lesser estate in the greater. The leasehold is the lesser estate, for, it is carved out of the estate of the owner, which is the reversion. The lesser estate is merged, that is, sunk or drowned in the greater. The lease determines, for it sinks into the reversion. Thus, if the lessor purchases the lessee's interest the lease is extinguished, as the same man cannot be at the same time both landlord and tenant.
On this question, this position has not been accepted by the Court below on the ground that the sale in favour of the second defendant by the first defendant was invalid. This is clearly wrong. In Durga Prasad v. Deepchand : 1SCR360 the Supreme Court considered the proper form of decree to be passed in a suit for specific performance of a contract for sale of land against the vendor and the subsequent transferee with notice of the prior agreement for sale to the plaintiff and held that the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff, and he does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff, this was held so on this basis that title to the properties validly passed from the vendor to the subsequent transferee and that the sale to him later was not void but only voidable at the option of the earlier contract. Again in Anna-malai Gounder v. Venkatasami Naidu : AIR1959Mad354 after the expiry of the period of lease a registered agreement was entered into between the parties whereby the leased properties were to be sold to the lessee. I he balance of the consideration was tendered but the landlord improperly declined to accept the same and a sale deed was not executed. An application for eviction was made by the landlord under Act XXV of 1955. In that context, Ganapathia Pillai, J. held as follows:
It is obvious that till the contract of sale was entered into, the petitioner only occupied the position of lessee. But, after the date of the contract and after it was performed in part by consideration being paid for the contract and the landlord allowing the tenant to remain in possession by reason of the new status created under the contract, it was no longer open to the landlord to contend that the right of possession claimed by the petitioner was referable to the contract of lease.... The moment possession is taken or continued under the contract of sale, the original relationship of landlord and tenant ceases to exist and the landlord cannot take advantage of the provisions of the Madras Cultivating Tenants Protection Act to file an application for eviction.... It is manifest that before any proceeding for eviction could be taken under the Madras Cultivating Tenants Protection Act, the relationship of landlord and tenant must subsist both on the date when the cause of action arose and when the application was made The relationship of landlord and tenant ceased to exist when the contract of sale was entered into and was performed in part.
12. In the present case, there is a sale in favour of the second defendant by the first defendant under Exhibit A-1 and the title of the first defendant passed on to the second defendant as on the date of Exhibit A-1 Consequently, from the date of Exhibit A-1, sale deed, the second defendant's possession ceased to be that of a tenant and the relationship of landlord and tenant, if, any, that existed on that date ceased to be in force. In the circumstances, from the date of Exhibit A-1, the possession of the second defendant can be traced only to Exhibit A-1 sale deed. I, therefore, hold that it would not be open to the second defendant to fall back upon his possession as a tenant. Once I find that Exhibit A-1 is liable to be avoided by the plaintiff on the foot of Exhibit A-8, agreement for sale, the appeal filed by the second defendant as well as the appeal filed by the first defendant have to necessarily fail. In the result, I confirm the judgment and decree of the trial Court and dismiss the appeals with costs of the contesting respondent, one set.