A. Malaichamey and Others vs P. Muthandi and Others

Ramaprasada Rao, J.—The Petitioner s are the tenants who were sought to be evicted by the Respondent. u/s 3(2)(b) read with Section

4(a) and (b) of Madras Act XXV of 1955. The sole question which arose for consideration before the Authorised Officer, who was the Revenue

Court. Pudukkottai. was whether the Petitioner s were tenants at all within the meaning of the Act and/or if they were Sub-tenants, were they

entitled to protection under the Tamil Nadu Cultivating Tenants Protection Act, 1955. After fully considering the documentary and oral evidence let

in, the Authorised Officer came to the conclusion that the petitioners were let into the land after the determination of the lease in favour of the

original tenant. After noting the facts, he was of the view that even if a cultivating tenant grants a sub-lease of a part of what has been demised to

him, the sub-tenant would he liable for eviction under the provisions of Section 3(2)(b) read with Section 4 of the Act, But he later on, found as a

fact, that the assignment of the lease in favour of the sub-lessees in this case was undoubtedly long after the determination of the original tenancy

agreement between the landlord and the tenant and that the sub-lessees could not therefore, claim to have got into possession of the land under a

tenancy agreement. express or implied. On these grounds, he held that the Petitioner s were not entitled to portection under the Act. The Petitioner

s have now come up before this Court in revision.

The question, therefore, is whether a sub-tenant who was inducted into the premises. which is agricultural land, in this case after the

determination of the lease in favour of the quondam tenant could still claim benefits under the Act, This leads on to the question as to what is the

status of a tenant under the cultivating Tenants Protection Act. who continues in occupation of the demised premises after the determination of the

lease. Ordinarily under the provisions of the Transfer of Property Act, he has a right to continue in possession thereof. but there is a snapping of the

contractual relationship as between himself and the landlord in relation to the demised property. What he secures by continuing in possession of the

property after the determination of the lease is what is termed in legal phraseology as the right of iiremovability but he cannot claim rights which

ordinarily flow from a contract of tenancy. But in cases where he holds over and remains in possession after the determination, of the tenancy,

certain statutes which are of a later origin and which are agrarian in nature have created certain special benefits and vested in such persons holding

over and remaining in the demised premises after the determination of the tenancy, certain special rights not provided for under the Transfer of

Property Act. Under the provisions of the Transfer of Property Act, during the period and currency of the contractual tenancy, the tenant has the

option to assign the same and bind the assignee and create a fictional contractual relationship between the assignee and the landlord and also make

his interest in the land as tenant, heritable, this is not available to a tenant who remains in possession of the property after the determination of the

ease. Such a tenant who holds over cannot assign or make his right of irremovability which is appurtenant to his status as a statutory tenant,

heritable. But certain exceptions, however, have been envisaged in what I characterised as agrarian legislation and one such provision is found in

the Tamil Nadu Cultivating Tenants Protection Act, 1955.

The earlier view which the Supreme Court took and which V. Ramaswami J., followed in R. Subbaiah Thevar Vs. R.V. Muthurangaswamy

Naicker and Others, , appears to be no longer an opinion which has the weightage demanding following up. This is so, because, the learned Judge

himself, after noticing the later decision of the Supreme Court in Damadilal and Others Vs. Parashram and Others, corrected his view in Second

Appeal No. 1916 of 1973 (Ramiah Natta v. Jambakathamma & Co. ) and went to the extent of pointing out that it is no longer open to rely on the

earlier judgments of the Supreme Court, viz., The Jiyajeerao Cotton Mills Ltd. Vs. State of Madhya Pradesh, and Jagdish Chander Chatterjee and

Others Vs. Shri Kishan and Another, . We shall just trace out the foundation for such variance in the two judgments rendered by the learned

Judge.

Before doing so, it is necessary to refer to the statutory prevision under the Tamil Nadu Cultivating Tenants Protection Act, 1955 (hereinafter

refered to as the Act, Section 2 runs thus:

(aa) ''Cultivating tenant:

(i) means a person who contributes his own physical labour or that if any member of his family in the cultivation of any land belonging to another,

under a tenancy agreement, express or implied; and

(ii) includes:

(a) any such persons who continues in possession of the land after the determination of the tenancy agreement;

(b) the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land ;

(c) a sub-tenant if he contributes his own physical, labour or that of any member of his family in the cultivation of such land; or

(d) any such sub-tenant who continues in possession of the land notwithstanding that the person who-sublet the land to such sub-tenant ceases to

have the right to possession of such land; but

(iii) does not include a mere intermediary of his heir;

Explanation: A sub-tenant shall be deemed to be a cultivating tenant of the holding under the landlord if the lessor of such sub-tenant has ceased to

be the tenant of such landlord.

No doubt, the two requirements under the definition of a cultivating tenant, are contribution of personal labour and the existence of a tenancy

agreement, express or implied. In so far as the inclusive definition of a tenant which is provided for in Section 2(aa)(ii) is concerned, the existence

of one of the requirement as above is automatically dispensed with, for, in the case of a person who continues in possession of the land after the

determination of the tenancy agreement, one cannot expect an agreement, either express or implied. for such continuance. But the other

requirement regarding contribution of physical labour in the matter of cultivation of the land, of course, is neceessary. But what is to be noted is that

a person who continues to be in possession of the land after the determination of the tenancy agreement is also a cultivating tenant. Under the

Explanation to the section, a sub-tenant shall be a ''cultivating tenant'' of the holding under the landlord if the lessor of such sub-tenant has ceased

to be a tenant of such landlord. This explanation makes it clear that on the cessation of the contractual relationship as between the landlord and the

quondam tenant and if at site a sub-tenant who has been lawfully inducted by the quondam tenant is found in it and has been contributing his

physical labour force the cultivation of the land demised to him, then, u/s 2(aa) explanation such a sub-tenant shall be deemed to be a cultivating

tenant of the holding under the landlord, It is this which I pointed out as an exception to the main, understanding of the words tenant and sub-tenant

under the provisions of the Transfer of Property Act. The Supreme Court had occasion to deal with, a similar provision in Damadilal and Others

Vs. Parashram and Others, under the Madhya Pradesh Accommodation Control Act (XLI of 1961). They specifically considered the question

whether the statutory tenant has a heritable interest in the premises. Having regard to the definition of a tenant and a sub-tenant in the Madhya

Pradesh Accomodation Control Act the Supreme Court said:

The definition makes a person continuing in possession after the determination of his tenancy, a tenant unless a decree or order for eviction has

been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a

contractual tenancy must therefore, be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant

retains an interest in the premises not merely a personal right of occupation, will also appear from Section 14.... A contractual tenant has an estate

or interest in premises from which he carves out what he gives to the sub-tenant.

It was because of this opinion expressed by the Supreme Court in Damadilal and Others Vs. Parashram and Others, V. Ramaswami J., had to

revise his opinion while deeiding S.A. No. 1916 of 1973 afore-said and would not follow his own judgment reported in R. Subbaiah Thevar Vs.

R.V. Muthurangaswamy Naicker and Others, . It is in this content the learned Judge said that the two earlier judgments of the Supreme Court are

no longer applicable.

Considering a similar position, the learned Judge was of the view in the second appeal afore-said that so long as the sub-tenant contributes his

physical Labour or that of any member of his family in the cultivation of the land and he was lawfully inducted into possession by the quondam

tenant then, he would have all the rights annexed to a cultivating tenant and he will be deemed to be one of the holding under the landlord.

The Authorised officer was, therefore, wrong in having expressed the view that the Petitioner s are not entitled to protection under the Act. He

ought not to have directed eviction of the Petitioner s from the holding in question.

On a consideration of the authorities cited above, the Civil Revision Petition is allowed. There will be no order as to costs.