Arulmigu Swaminathaswamy Devasthanam vs A. Jagannathan

S. Jagadeesan, J.—The defendant Devasthanam the suit is the appellant herein. The respondent filed the suit OS. 650 of 1981 on the file of

the District Munsif, Kumbakonam for bare injunction stating that on 31.3.1969 he entered into a lease agreement in respect of the suit property

and pursuant to which he has to convert the land into a coconut thope and thereafter surrender possession to the defendant Devasthanam. The

lease period is five years. The respondent can cultivate intermediary crops and pay a sum of Rs. 1800/-by way of annual lease to the appellant

Devasthanam. As per the said agreement, the respondent planted 600 coconut saplings of which 571 are now well grown trees. The number of

yielding trees are only 151. Even though the lease period agreed upon was five years, the respondent continued to be the lessee till the date of filing

of the suit and he has also paid the lease amount regularly without any arrears, While so, the appellant Devasthanam brought the thope for auction

on 9.7.1981. Hence the suit has been filed for bare injunction as the respondent incurred an expense of Rs. 10,000/- for the installation of pump

set and another Rs. 10,000/- for the construction of shed thereon. Along with these amounts, the appellant Devasthanam has to pay a sum of Rs.

10/- per tree towards maintenance. The appellant herein contested the claim of the respondent by filing written statement stating that the agreement

is only for planting the coconut trees and when the trees started to yield, the respondent has to receive the compensation and surrender possession.

Even though the lease period expired on 30.6.1973, it was extended for further period of three years and again for further period of five years and

as such the lease period came to an end on 30.6.1981. Since the lease period expired, the appellant Devasthanam is entitled to auction the right to

take the usufructs. Hence the suit is not maintainable.

On the above pleadings, the trial court framed the following issues:

(1) Whether the plaintiff is entitled for a decree of permanent injunction?

(2) Whether the plaintiff is a cultivating tenant?

(3) To what relief the plaintiff is entitled to?

After elaborately discussing the evidence, both oral and documentary, the trial court had dismissed the suit finding that the plaintiff is not entitled

for the protection under the Tamil Nadu Cultivating Tenants Protection Act. Further the trial court held that by virtue of Section 51 of the Tamil

Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act Act (57 of 1961) the protection of the Cultivating Tenants Protection

Act has no application to the present suit property which is a thope and hence the plaintiff is not entitled for the relief of injunction as prayed for.

Aggrieved by the same, the respondent/plaintiff preferred an appeal in A.S. 38 of 1985 on the file of the Sub-court, Kumbakonam. The learned

Subordinate Judge had reversed the decree of the trial Court, finding that the respondent is entitled for the compensation and till the compensation

is paid, he is entitled to be in possession of the suit property and held that the respondent is not entitled for the protection under the Tamil Nadu

Cultivating Tenants Protection Act or the protection under the Tamil Nadu Public Trusts Act. However, the learned Subordinate Judge held that

no prejudice will be caused to the appellant/defendant if the respondent plaintiff is allowed to be in possession for some more time, till the amount

of compensation is decided and ultimately decreed the suit, granting injunction in favour of the plaintiff till the compensation is paid to him. As

against the said judgment and decree of the lower appellate court, the appellant Devasthanam has preferred the Second Appeal so far as the

findings are against them. The respondent herein also filed cross-objection so far as the finding of the lower appellate court that the plaintiff is not

entitled for the protection of the Cultivating Tenants Protection Act.

On behalf of the appellant, it contended that by virtue of Section 51 of the Tamil Nadu Public Trusts Act, the respondent is not entitled for the

benefit of the Cultivating Tenants Protection Act. Apart from this, there is no plea on behalf of the respondent that he is personally cultivating the

lands which is essential for the benefit of the Tamil Nadu Cultivating Tenants Protection Act. In the absence of such plea, the finding of the lower

appellate court that the respondent is not entitled for the Cultivating. Tenants Protection Act cannot be interfered with. It is further contended that

admittedly the lease of the land is only to convert the same into a thope. Pursuant to the said lease agreement the respondent also planted 571

coconut trees. The permission to raise intermediary crops in the said thope will not amount to regular cultivation and as such on this ground also,

the respondent is not entitled for the benefit of the Cultivating Tenants. Protection Act as held by this Court in the judgment reported in Thiagaraja

Sendar v. Sri Vasupatheeswara Swami Devasthanam, Avoor 92 L.W. 524 and Saravanan v. Sri Vedaranyeswaraswami Devasthanam (1989) 2-

LW-374). The lower appellate court having held that the respondent is not entitled for the benefit of the cultivating Tenants Protection Act and

further held that the lease period already expired, has totally erred in granting a decree for injunction in favour of the respondent that he is entitled

to be in possession till the compensation amount is to be paid. In fact when the respondent himself has not pleaded for such relief, the lower

appellate court had exceeded its jurisdiction in granting the same. Hence the judgment and decree of the lower appellate court is liable to be set

aside.

On the contrary, on behalf of the respondent, it is contended that the respondent is entitled for the benefit of Cultivating Tenants Protection Act;

especially when there is already an order in his favour under the Record of Tenancy Act that the respondent is the cultivating tenant. The

appellants, having allowed the said order of the Record of Tenancy Tahsildar to stand, it is not open to them and contend that the respondent is not

entitled for the benefit of the Tamil Nadu Cultivating Tenants Protection Act. In view of the same, the cross-objection filed by the respondent has

to be allowed and consequently the Second Appeal has to be dismissed.

The entire question for the disposal of the Second Appeal revolves on the issue as to whether the respondent is entitled for the benefit of the

Cultivating Tenants Protection Act? and the proceedings culminated under the Record of Tenancy Act Ex. A13 is final and thereby the respondent

is entitled for the relief of injunction as prayed for.

It may be pertinent to note that both the courts below have held that the respondent herein is not entitled for the benefit of the Cultivating

Tenants Protection Act by virtue of Section 51 of the Public Trusts Act. In fact the view taken by the courts below is supported by the decision of

this High Court in the case of Thiagaraja Sendar v. Sri Pasupatheeswara Swami Devasthanam, Avoor (92 L.W. 524) where the learned Judge has

held as follows:

The only other question, therefore, is whether the suit tope is entitled to be immune from the protective provisions of the Act. Section 51(iv) of the

Tamil Nadu Act 57 of 1961, which I have already extracted, is quite clear on this subject. It says that the Act shall not apply to such topes so long

as they continue to be used for such purposes as provided in this section.

At the time, I heard arguments from the Bar, I entertained some little doubt as to whether Section 51(iv) applied only to the lands which had been

converted into topes. I am however satisfied on deeper consideration that the definition admits of no doubt, having regard to what I consider with

respect, to be a clear exposition of the meaning and scope of this provision by Ismail, J. in Sri Panchamadheeswawara Swami Devasthanam by its

Trustee v. Bakris Bivi & others (1972) T.L.N.J. 591- 87 L.W. 282. The learned judge in that case took the view that the expression ''converted''

occurring in Section 51(iv) is not a term of art and it has not been used in any technical sense by the legislature and that all it meant is that if the land

once becomes a tope as defined in Section 2(29) of the Act, then the land must be regarded as having been converted into a tope as contemplated

in Section 51(iv) of the Act and it would fall outside the scope of the Act and it will only cease to be so exempt if the land becomes reconverted

into something other than a thope. I adopt this view of Ismail, J. as my own. The learned Subordinate Judge''s view based on the decision of

Ismail, J. has therefore, to be upheld as correct in law. For all the above reasons, this Second Appeal has to be dismissed and I accordingly do so.

The learned Judge while coming to the conclusion that the land having been converted into a thope is exempted by virtue of Section 51 of the Tamil

Nadu Public Trust Act. He relied upon the judgment of another learned Single Judge reported in Sri Panchanadheeswawara Swami Devasthanam

by its Trustee v. Barkis Bivi & others (87 L.W. 282.)

In another case Saravanan v. Sri Dedaranyeswaraswai Devasthanam (1989-L.W. 373) Mohan, J. (as he then was) has held as follows:

With this background, I go to the next question raised by Mr. Ramamurthi, learned counsel for the appellant, that the object of Section 51 of the

Tamil Nadu Public Trusts Act taken together with other provisions including Section 52 is for the purpose of fixation of the ceiling limit. For my

part, I am unable to see any warrant for such an argument. The language of Section 51 of the Tamil Nadu Public Trusts Act, does not give room

for such an argument. On the contrary, it is comprehensive enough and does not have any restriction as contended by Mr. Ramamurthy, learned

counsel for the appellant. When it says ''nothing contained'' it means all the provisions contained in the Act would cease to apply and it cannot be

restricted to any fixation of ceiling. It is well settled law that in the guise of interpretation, the courts are not empowered to enact a new provision. If

the contention of Mr. Ramamurthi, learned counsel for the appellant, is accepted, it would mean that this court is enacting a new provision by

introducing words in Section 51 which certainly not the intention of the Legislature. Therefore, I find that the submission of the learned Advocate

General is correct. Once this conclusion is arrived at it will follow that the appellant cannot claim to be a cultivating tenant and on that basis, there

cannot be any injunction. Accordingly, the Second Appeal stands dismissed.

On the basis of these two judgments, this Court is of the view that the courts below have rightly held that the respondent is not entitled for the

benefit of the Cultivating Tenants Protection Act.

The learned counsel for the respondent relied upon another judgment in the case of Duraiswami v. Sri Sangameswarswamy Devasthanam

Bhavani, (1995-L.W. 43) (JS). This is also a judgment rendered by Mohan, J. (as he then was). Of course, while deciding this case, none of the

earlier judgments have been brought to the notice of the learned Judge. So far as this case is concerned, the learned Judge having held that Section

51 of the Tamil Nadu Public Trusts Act exempts the thope, proceeded on the basis that the exemption is only from the application of the

provisions of the said Tamil Nadu Public Trusts Act. Hence for the said properties, the Cultivating Tenants Protection Act is applicable and

moreover the tenant had already obtained an order from the Revenue authorities, recording himself as a cultivating tenant and that will be binding

on both the parties. In view of the order passed by the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, the tenant is entitled for the

injunction.

The learned counsel for the respondent vehemently contended that in the case on hand also Ex. A13 is the proceedings of the Revenue

authorities under the said Record of Tenancy Rights Act and the lower appellate court ought to have found that the respondent is entitled for the

benefit of the Cultivating Tenants Protection Act which is the question for consideration in the cross-appeal. The learned counsel for the

respondent further contended that in view of the conflicting judgments, the matter may be referred to a Division Bench.

I carefully considered this argument of the learned counsel for the respondent. So far as the case decided in Thiagaraja Sendar v. Sri

Pasupatheeswara Swami Devasthanam, Avoor (92 L.W. 524) and in Saravanan v. Sri Dedaranyeswaraswami Devasthanam (1989-2-L.W. 373),

there is no dispute that by virtue of Section 51 of the Tamil Nadu Public Trusts Act, the thopes are exempted. Section 62 of the said Act further

clarifies that the Tamil Nadu Cultivating Tenants Protection Act stands repealed so far as the trust properties are concerned. That is why all the

three Judges pertaining to the cases reported in Saravanan v. Vedaranyeswara Swami Devasthanam (1989-2-L.W-374), Thiagaraja Sendar v. Sri

Pasupatheeswara Swami Devasthanam Avoor (92 L.W. 524) and Sri Panchanatheeswara Swami Devasthanam v. Barkis Bivi (87 LW 282) have

categorically held that the tenants are not entitled for the benefit of the Cultivating Tenants Protection Act.

When it is held that the Cultivating Tenants Protection Act has no application to the thope properties and the tenant cannot claim any right

under the Cultivating Tenants Protection Act, it goes without saying that the tenant has no right to invoke the provisions under the Tamil Nadu

Cultivating Tenants Protection Act. When the initiation of the proceedings itself is not lawful and by virtue of Section 62 of the Tamil Nadu Public

Trusts Act, when the Tamil Nadu Cultivating Tenants Protection Act stands repealed, so far as the trust properties are concerned, then no

Revenue authorities can have any jurisdiction to entertain any application under the repealed Act. Hence the Revenue authorities totally lack

jurisdiction to entertain any application by the tenants under the Tamil Nadu Agricultural Lands Record of Tenancy Act. If that be so, Ex. A13

being the proceedings without jurisdiction is null and void and as such the same is vitiated for want of jurisdiction. Consequently the same cannot

be considered.

In the case reported in Duraiswami v. Sri Sanghameswara Swamy Devasthanam, Bhavani (1995-1-LW-43)(JS) Mohan, J. (as he then was)

had totally overlooked this vital factor and merely proceeded on the basis that the proceedings of the Revenue officers is binding on the parties,

which in the view of this court, is not correct. It is well laid principle that any proceedings without jurisdiction is null and void and the same is liable

to be eschewed or avoided. Hence the judgment in Duraiswamy v. Sri Sangameswaraswamy Devasthanam (1995-1-L.W. 43)(JS) relied upon by

the learned counsel for the respondent may not be of any help.

Since this Court is totally in agreement with the principles laid down in Saravanan v. Sri Vedaranyeswara Swami Devasthanam (1989-2-L.W.

374) and Thiagaraja Sendar v. Sri Pasupatheeswaraswamy Devasthanam, Avoor (92 L.W. 524) as well as Sri Panchanatheeswara Swami v.

Barkis Bivi (87 LW 282), this Court confirmed the findings of the courts below that the respondent herein is not entitled for the protection of the

Tamil Nadu Cultivating Tenants Protection Act.

Now the question for consideration is whether the lower appellate court is correct in granting the injunction in favour of the respondent on the

ground that he is entitled to be in possession of the thope till the compensation is paid.

First of all there is no such plea by the respondent himself in the plaint. The relief sought for in the plaint is ""to restrain the defendant, his men,

agents, subordinates and all persons claiming through him from in any way interfering with his (plaintiff''s) possession over the suit properties"".

At the outset, it can be safely concluded that such an indefinite prayer cannot be granted; especially when the respondent has admitted that his

possession is permissive.

If really the plaintiff is interested in safeguarding his right for compensation, he ought to have taken necessary steps to ascertain the quantum of

compensation. There is absolutely no written agreement with regard to the terms between the parties. In the absence of any material to ascertain

the compensation amount, this Court is of the view that the lower appellate Court has totally erred in granting an order of injunction in favour of the

respondent. Further the lower appellate court is not correct is observing that instead of leasing out the property to third parties, the interest of the

appellant is not prejudiced by the respondent''s continuation of the suit property.

The suit having been laid in the year 1981, and now that almost 20 years over, this Court is of the view that even assuming the respondent is

entitled for any compensation, he might have made it up by the enjoyment of the suit property which is the coconut thope for the past 20 years, and

as such the respondent is not entitled for any relief. The appellant is entitled to auction the right to take the yield from the thope in order to augment

their income. In the result, the judgment and decree of the lower appellate court is set aside and consequently the Second Appeal is allowed with

costs Rs. 2,000/- The cross appeal is dismissed.