Annavi Moopan vs Silambayee Ammal

V. Sethuraman, J.—The defendant in O.S. No. 554 of 1972 in the Court of District Munsif of Tiruchirapalli is the appellant. The respondent

herein field the suit for eviction of the defendant from the suit property. According to him, the suit site belonged to him and the defendant took it on

lease by executing a registered lease deed on 21st August, 1964, marked as Exhibit A-1, for putting up a superstructure on the site, agreeing to

remove it at the end of the lease period of three years and to give vacant possession. The rent payable was Rs. 12 per annum. As the defendant

did not pay the rent and as the period of lease had expired, the plaintiff came forward with the present suit for the relief mentioned above. The

appellant-defendant contested the suit stating that the land was a common property belonging to twenty-two persons, that the plaintiff could not

have leased out more than the extent to which he was entitled, that the defendant has been in occupation of 25 cents of land while the plaintiff

would be entitled to only 5 cents and that the lease deed Exhibit A-1 had been obtained under false representation. It was also stated that the

defendant was in possession and enjoyment of the property for twenty-two years and that he had not paid any rent to any body at any time. The

right of the plaintiff to evict the defendant was thus challenged.

The trial Court decreed the suit with costs on the strength of the finding that the plaintiff was entitled to possession and that there was a valid and

proper notice to quit.

Against that judgment, there was an appeal which came before the Principal Subordinate Judge of Tiruchirapalli. During the pendency of the

appeal, an additional written statement was filed in which it was stated that the defendant was in continuous possession and enjoyment of the suit

property, that he was a cultivating tenant and lessee, besides being an agricultural labourer, and that he was therefore entitled to the benefits of the

Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act (XL of 1971). It was pointed out that the possession of the defendant

could not be disturbed by any landlord. The learned Subordinate Judge went into the question whether the defendant was a ''tenant'' and was liable

to be evicted. He held that the defendant had entered into the schedule site as a tenant by executing Exhibit A-1 lease deed and that he was liable

to give vacant possession after due and valid notice was given under the original of Exhibit A-2. He held also that the Tamil Nadu Act XL of 1971

did not apply to the present case, because, the defendant had denied the title of the landlord over the schedule site. The result was that the appeal

was dismissed, Against this judgment, the present second appeal has been filed by the defendant.

The learned Counsel for the appellant contended that the Court below should have granted to him the benefit of the Tamil Nadu Act XL of

1971. The further contention was that the civil Court had no jurisdiction to go into this question of eviction. According to the learned Counsel, the

matter would have to go before the Authorised Officer.

Therefore, the first point to be examined is whether the defendant is entitled to the benefits of Tamil Nadu Act XL of 1971. That Act was

passed to provide for the conferment of ownership rights on occupants of kudiyiruppu in the State of Tamil Nadu. ''Kudiyiruppu'' was defined in

Section 2(8) of that Act as-

the site of any dwelling house or hut occupied, either as tenant or as licensee, by any agriculturist or agricultural labourer and includes such other

area adjacent to the dwelling house or hut as may be necessary for the convenient enjoyment of such dwelling house or hut.

Under the Explanation to that provision, it has to be presumed that any person occupying the kudiyiruppu is an agricultural labourer or an

agriculturist, until the contrary is proved. Therefore, we have to take it that the defendant is an ''agriculturist or an agricultural labourer'', as the

contrary has not been proved in the present case.

There is a definition of ''tenant'' in Section 2(11) of Tamil Nadu Act XL of 1971, running as follows:

''tenant'' means any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to enjoy the land of the

latter under a tenancy agreement, express or implied, and includes his heirs and legal representatives;

By Section 3, ""any agriculturist or agricultural labourer who was occupying any kudiyiruppu on the 19th June, 1971, either as tenant or as licensee

shall, with effect from the date of the commencement of this Act, be the owner of such kudiyiruppu and such kudiyiruppu shall vest in him

absolutely free from all encumbrances,"" Section 4 provides that if any dispute arises whether any agriculturist or agricultural labourer was

occupying any kudiyiruppu on the 19th June, 1971, for purposes of Section 3 of the Act, such dispute shall be decided by the authorised officer.

There is a right of appeal to the District Collector. There is provision for compensation and also for an appeal against the order awarding

compensation. These are the material provisions.

As was seen already, the defendant denied the relationship of landlord and tenant. He set up the case that the plaintiff had no power to lease out

the property and that Exhibit A-1 lease deed had been obtained under false representation. The case of the defendant that there was any false

representation has not been accepted by both the Courts. The question to be considered is whether such a person who set up his own title to the

property, would come within the scope of the term ''tenant'' u/s 2(11) of Tamil Nadu Act XL of 1971, or would be an occupant of a kudiyiruppu

so as to become the owner. The definition of ''tenant'' contemplates that there must be payment of rent or at least an agreement to pay rent. In the

present case, it is clear from the case put forward by the defendant, and also from his own evidence, that he had never paid any rent to anybody.

He had, however, agreed to pay rent of Rs. 12 per annum under Exhibit A-1. As, according to the defendant himself, the agreement had been

obtained under false representation, he could not claim to be a tenant who had agreed to pay rent. Even assuming that his denial of the agreement

under Exhibit A-1 is not correct, and even proceeding on the basis that he had agreed to pay rent, the period of lease was only three years from

21st August, 1964, the date of Exhibit A-1. The lease had expired. u/s 111(a) of the Transfer of Property Act, a lease of immovable property

determines by efflux of the time limited thereby. The result would be that there was no lease after the expiry of the period of three years. The

defendant was neither a lessee nor a licensee to qualify for the benefit of the Act.

The learned Counsel for the appellant, however, contended that even a person who held over after the expiry of the lease would be a ''tenant'', if

in origin there was a tenancy. The statutes often provide that such person will be taken to be a tenant for purposes of the petitioner-statute. For

instance, the Madhya Pradesh Accommodation Control Act, 1961, defines a ''tenant'' as including any person continuing in possession after the

termination of his tenancy. In a case that came up before the Supreme Court in Damadilal and Others Vs. Parashram and Others, , the Supreme

Court was concerned with the question of the rights of a tenant in possession after the termination of his tenancy. In that case, the termination of the

tenancy arose by reason of the tenant disputing the title of the owner of the property. It was held by the Supreme Court that u/s 111 of the

Transfer of Property Act forfeiture by denial of title was only one of the modes of determination of a lease of immovable property and that if there

was a forfeiture by denial, the person in possession after such termination would also be a tenant within the meaning of Section 2(4) of the Madhya

Pradesh Accommodation Control Act, 1961.

Similar provision is to be found in many other statutes. For instance, the definition in the Madras City Tenants Protection Act (III of 1922) was

found to be more or less identifical with the one before the Supreme Court and the decision of the Supreme Court was applied by V. Ramaswami,

J., in Govindaswamy v. Bhoopalan (1977) 2 M.I.J. 206. In the absence of such! a provision in the present Act, it is not possible to apply those

decisions to the case on hand. For purposes of this Act, a tenant whose tenancy had come to an end would not retain the character of being a

tenant.

The learned Counsel for the appellant placed very strong reliance on a decision of Paul, J., in Govindarajulu Naidu v. Mohammed Ismail

(1974) 87 L.W. 661, to contend that the civil Court had no jurisdiction to go into this matter. In that case there was a suit for recovery of

possession of properties from defendants 1 to 4, who were in possession thereof. Defendants 1 to 4 claimed protection under the Tamil Nadu

Occupants of Kudiyiruppu (Protection from Eviction) Act (XXXVIII of 1961). The trial Court accepted the claim of title in favour of the plaintiff,

but found that the defendants were agriculturists or agricultural labourers entitled to the benefits of the Tamil Nadu Act XXXVIII of 1961. The

matter came on second appeal to this Court, and the learned Judge held that there is no question of eviction of the occupant of a kudiyiruppu. It is

contended that consistent with this decision it should be held in the present case also that the civil Court has no jurisdiction.

I am unable to agree with this submission. Section 3 of Tamil Nadu Act XXXVIII of 1961 provides:

(1) Save as otherwise provided by this Act no person occupying any kudiyiruppu shall be evicted from such kudiyiruppu.

Sub-section (2) provides that ""any person occupying any kudiyiruppu shall be entitled to continue to occupy the kudiyiruppu on terms and

conditions not less favourable than those applicable to him on the date on which he occupied such kudiyiruppu"". Then comes, Sub-section (3)

which runs as follows:

Sub-sections (1) and (2) shall not apply to any person occupying any kudiyiruppu-

(a) if he has done any act or has been guilty of any negligence which is destructive of, or injurious to, the property belonging! to the owner of the

kudiyiruppu; or

(b) if he has wilfully denied the title of the owner of the kudiyiruppu.

With reference to a case where there is a denial of the title of the owner of the kudiyiruppu, a special provision was made in Section 5. Section 5

provides that any owner of kudiyiruppu seeking to evict for any of the reasons mentioned in Sub-section (3) of Section 3 any person occupying

any kudiyiruppu may, whether or not there is an order or decree of Court for the eviction, apply to the authorised officer within whose jurisdiction

the kudiyiruppu is situated, in such form and within such time as may be prescribed. Section 11 enacts a bar of jurisdiction of civil Courts in respect

of matters in which the authorised officer is empowered. The result is that there is a specific provision with reference to eviction of a person who

denies the title of the owner of the kudiyiruppu. That provision envisages the matter being enquired into by the authorized officer, and not by a civil

Court. In these circumstances, the learned Judge held, and with respect, rightly, that the civil Court has no jurisdiction in such a matter. The said

judgment has absolutely no scope for application to the present case, as there is no provision in Act XL of 1971 for determination of such disputes

as the one here, by any authorised officer. The provisions of this Act apply to only subsisting tenancies or licensees.

My attention was also drawn to two other decisions. In Malaichami v. Muthandi 90 L.W. 38, the question arose in a civil revision petition,

whether a sub-tenant who was inducted into an agricultural land after the determination of the lease in favour of the quondam tenant could still claim

the benefits under the Tamil Nadu Cultivating Tenants Protection Act, 1955. It was held by Ramaprasada Rao, J., as he then was, that u/s 2(aa)

Explanation, such a sub-tenant was to be deemed to be a ''cultivating tenant'' of the holding under the landlord. The decision turned on a different

Act and contentions, and I do not consider that it has any application to the present case.

In an unreported decision in Boologanathan v. Govindaraju and four Ors. C.R.P.No. 3281 of 1974, dated 5th January 1979. Ramaprasada

Rao, CJ., had to deal with a case where the legatee under a will of a quondam tenant claimed that he was entitled to the benefits of the Tamil Nadu

City Tenants Protection Act. The earlier decision was not cited. It was held that the quondam tenant himself had taken up the position that the

person who claimed ownership was not the true owner of the property, with the result that the owner had to come forward with a suit. It was held

that the legatee could not be brought within the category of ''tenant'', within the meaning of the said Act. This decision also is not of any assistance

to the problem before me. Both these decisions were rendered under different set of provisions.

The question to be decided here has to be examined in the light of the provisions of the Act XL of 1971. The Act contemplates an express or

implied tenancy. Even on the appellant''s own showing, there was no express tenancy. There can be no question of any implied tenancy either, as

he disputed even the earlier lease deed for three years as invalid and inoperative. He was not one who held over after expiry of the tenancy. There

was no agreement for payment of any rent, at any rate, after the expiry of the period prescribed in Exhibit A-1, and the defendant has not paid any

rent, nor acknowledged any liability to pay it. In these circumstances, I hold that the civil Court has jurisdiction to go into this question of eviction

and that the appellant is not entitled to the protection of Tamil Nadu Act XL of 1971.

The second appeal is accordingly dismissed. There will be no order as to costs.