Esakki vs Subramania Aiyer

This second appeal is directed against the judgment and decree of the learned Principal Subortinate Judge, Tirunelveli, in A.S. No.41 of 1983

dated 31.7.1984 in confirming the judgment and decree of the learned District Munsif, Ambasamudram, in O.S. No.984 of 1979 dated

30.4.1983.

The defendant is the-appellant in the above Second Appeal. The plaintiff/respondent herein filed O.S. No.984 of 1979 contending that the suit

house belongs absolutely to him, that the defendant had taken the premises on lease on a monthly rent of Rs.10 payable in every English calendar

month, that inasmuch as there were arrears of rent, the plaintiff filed a suit in O.S. No.617 of 1975, that in that suit the defendant contended that he

was liable to pay only Rs.5 per month as per Tamil calendar month. The trial Court accepted the contention of the defendant and granted a decree

for eviction. The defendant filed an appeal before the Sub-Court, Tirunelveli, in A.S. No.177 of 1978 and the lower appellate Court allowed the

appeal and agreed with the contention of the defendant that the rent was payable only as per Tamil Calendar month. Thereafter the plaintiff had

sent lawyer''s notice to the defendant demanding rent, and claiming arrears of rent and also for possession. However, in the reply of the defendant,

he claimed that.he was entitled to the protection of the Tamil Nadu Rural Artisan, (Conferment of Ownership of Kudiyiruppu) Act, 1976

(hereinafter called ""the Act"") and that he was approaching the authority under the Act and as such ho further action can be taken by the plaintiff.

However, the plaintiff contended that the defendant was not entitled to the protection of the said Act and that the defendant was in possession of

cultivable lands and therefore, not entitled to get protection of the said Act. Consequently, the plaintiff prayed for eviction of the defendant from the

premises and for recovery of possession and also for arrears of rent.

The defendant while denying the claims made in the plaint contended that he was regularly paying the rent of Rs.5 per month as per Tamil

Calendar month, and that while filing the appeal against the judgment in O.S. No.619 of 1975 he had contended that he was entitled to the benefits

of the Act. But the lower appellate Court in A.S. No.177 of 1978 did not discuss anything about the said issue and allowed the appeal on a

technical ground. The defendant further submitted that he has preferred an application on 18.9.1980 before the Authorised Officer under the Act

for appropriate relief and when the plaintiff sent notice to the defendant he had sent a detailed reply on 26.5.1979 informing the plaintiff that he was

going to institute a proceeding before the Authorised Officer and that inspite of the said reply, the plaintiff had filed the present suit. The defendant

further claimed that he has no other house site except the suit property and that he has been in enjoyment and therefore, he is entitled to the

benefits of the said Act. Therefore, the relief for recovery of possession as claimed by the plaintiff was not justified.

On a consideration of oral and documentary evidence, learned trial Judge came to the conclusion that the plaintiff was entitled to the relief as

prayed and the granted a decree in favour of the plaintiff/respondent herein. On appeal filed by the defendant, the lower appellate Court also

agreed with the findings of the trial Court and confirmed the judgment and decree of the trial Court. It is as against this judgment, the present

second appeal has been filed.

With reference to the findings of the arrears of rent, the said findings being question of fact, I am not inclined to consider any submission made

on behalf of the appellant with reference to that issue. The only substantial question of law which is raised and argued before me is as regards the

alleged bar of jurisdiction of the Civil Court as would arise u/s 26 of the Act.

Section 26 of the Act says as follows:

Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect Of any matter which the Government are, or the

authorised officer is, empowered by or under this Act, to determine and no injunction shall be granted by any Court or other authority in respect of

any action taken or to be taken in pursuance of any power conferred by or under this Act.

Learned counsel for the appellant also refers to Section 8(1)(a) and (b) of the Act whereunder the Authorised Officer was entitled to decide (a)

whether any person is a rural artisan or (b) whether any rural artisans holds any !and other than the Kudiyiruppu. Therefore, according to the

learned counsel for the appellant, the Authorised Officer was entitled to decide as to whether any person is a rural artisan or whether he was

holding any land other than the Kudiyiruppu which would disentitle him to seek protection under the Act. Therefore, according to the learned

counsel for the appellant, the jurisdiction of the Civil Court was totally barred and on his filing the petition before the Authorised Officer, the Civil

Court has lost its jurisdiction and hence the decree as granted by the Courts below cannot be sustained.

In support of his contention, learned counsel also relied on a judgment reported in, Kalyanasundaram Udayar v. Pazhaniayya Udayar, 1982

(95) LW 562. In the said decision a Division Bench of this Court was dealing with the issue arising out of bar of jurisdiction of the Civil Court u/s

23 of the Tamil Nadu Occupants of Kudiyiruppu, (Conferment of Ownership) Act, 1971. The judgment of the Division Bench came to be

delivered in the context of the different views said to have been expressed by two learned single Judges. On the facts arising out of that case it was

decided by the Division Bench. The suit was resisted by the defendant on the ground that he was a tenant entitled to the benefits of the Act and

that the notice to quit was not valid. The trial Court held that the defendant was entitled to the benefits of the said Act and dismissed the suit. On

appeal, the lower appellate Court held that the defendant had prima facie shown that he was a tenant under the plaintiff in respect of the suit site

and that he was entitled to the benefits of the Act, but still the plaintiff was entitled to a decree for possession subject to the rights of the defendant

if any under the said Act. The said view of the lower appellate Court was based on the decision of N. S. Ramaswamy, J. in, Ganesan v. Madurai

Achari, 1978 (91) LW 6.

The fact as stated above, would make it clear that the Division Bench was concerned with a case where the Courts have recorded a prima facie

finding in favour of the tenant that he was entitled to the benefits of the Act. However, the lower appellate Court held that the plaintiff was entitled

to decree for possession and that the defendant was entitled to work out his remedy under the provisions of the Act. In the said background, the

Division Bench held that bar of jurisdiction u/s 23 of the Tamil Nadu Act 40 of 1971 was in operation and that the plaintiff had to approach the

Authorised Officer concerned for the decision on that point and Civil Court was not competent to deal with the rights of the parties.

But in this case the issue which arose for consideration before the Courts below was as regards the very entitlement of the plaintiff to invoke the

provisions of the Act. It has been specifically pleaded by the plaintiff that the defendant was owning cultivable land and that therefore, the

defendant was not entitled to the protection of the Act. The lower appellate Court has recorded a specific finding to the effect that inasmuch as the

defendant was owning cultivable lands he was not entitled to invoke the provisions of the Act. Learned Appellate Judge has also taken note of the

fact that the defendant''s petition before the Authorised Officer had been filed only after the filing of the suit by the plaintiff and the defendant had

not stated anything regarding pendency of the proceedings before the authorised Officer.

In this second appeal, the respondent has also filed C.M.P. No.1255 off 1985 for receiving the registered Sale deed dated 25.6.1968,

marked as Document No.1 and a mortgage deed dated 22.5.1971 marked as Document No.2 as additional evidence. Both the documents relate

to the properties belonging to the appellant/defendant which would substantially establish the objections of the plaintiff that the defendant was

owning certain cultivable lands and thus he would not be entitled to seek protection under the Act. The said miscellaneous petition was filed in the

year 1985 itself and this Court had directed the miscellaneous petition to be posted along with the second appeal. Till date no counter has been

filed by the respondent and having regard to the fact that the additional document which are certified copies of registered documents being very

relevant to establish the points in dispute between the parties, both the documents are permitted to be marked as additional evidence in the above

second appeal. Accordingly, C.M.P. No.1255 of 1985 is allowed.

It is also pertinent to note that the allegation of the plaintiff that the defendant was owning certain lands which would disentitle him to claim the

benefits of the Act has not been seriously disputed by the appellant. The only ground which is taken by the defendant is that the Authorised Officer

was entitled to consider the issue raised by the plaintiff and that therefore, the suit was not maintainable having regard to the bar or jurisdiction of

the Civil Court u/s 26 of the Act.

The contention of the appellant with reference to the bar of jurisdiction u/s 26 of the Act has to be appreciated in the context of the dispute

arising under the present suit. It is not as though the plaintiff had approached this Court after receiving any notice from the Authorised Officer. On

the other hand, it is the defendant who had approached the Authorised Officer after receiving the lawyer''s notice as well as the notice in the

present suit for eviction. The power which is vested on the Authorised Officer u/s 8(1)(a) and (b) of the Act to decide as to whether any person

was a rural artisan or whether such a person was ""holding any land other than Kudiyiruppu, was the power incidentally available to him for

deciding such a question which may be raised by the landlord. But the fact remains that the Authorised Officer is vested with the said power. But

such a question cannot be a bar for deciding the issue as to whether the tenant has the prima facie case to seek protection under the provisions of

the Act. The power of a Civil Court to entertain a relief u/s 9, CPC can be taken away only by express words and not by presumption or

implication. A Division Bench of this Court while interpreting Section 64(c) of the Act 26 of 1978, has held that every presumption should be

made to invoke the jurisdiction of the Civil Court which can be taken away only by express words in a statute. 1982 TNLJ 9 the same view was

upheld by the Supreme Court in a decision reported in, State of Tamil Nadu Vs. Ramalinga Samigal Madam, . The Civil Court has certainly the

power to decide as to whether a person claiming protection under a particular enactment is entitled to and qualified to invoke the provisions of the

Act. In the present case, as would be seen from the facts discussed above, the defendant was positively owning lands on his own and therefore, he

was totally disentitled to the protection of the Act. That being so, merely filing a petition before the Authorised Officer that too after receiving

notice from the plaintiff and in the suit for eviction, will not disentitled the Civil Court from deciding whether the defendant was at all entitled to the

protection of the Act. Once the Civil Court comes to the conclusion that the party was entitled to the protection of the Act, no further decision can

be taken by the Civil Court and the. parties have to be directed to approach the appropriate authority under the Act. But the Civil Court is not

barred from considering as to whether one of the parties claiming protection under the Act has any prima facie case to substantiate his claim or not.

The Civil Court is not deprived of the said power. One could easily visualise the easy process of abuse of statutory provisions as in the present

case if the civil court does not have such a power. The provisions of the Act are not meant for frivolous abuse of the statutory provisions and the

powers of the Civil Court are not taken away by the mere allegation of the defendant that he is titled to the protection of the Act. The civil court

Has got every jurisdiction to find out as to whether the party claiming protection under the Act, is really a person who is entitled to the protection

of the Act. Both the Courts have concurrently found that the plaintiff is not entitled to the protection of the Act and it has also been substantially

established before the Courts below as well as through the additional evidence filed in CMP No.1255 of 1985 that the defendant was possessed

of agricultural properties which would totally disentitle him from approaching the Authorised Officer, In the said circumstances, the objections,

taken by the learned counsel for the appellant to the effect that the civil court has no jurisdiction to entertain the suit, cannot be sustained.

In the said circumstances, there are no merits in the above second appeal and the same is dismissed with costs. CMP No.1255 of 1985 is

allowed.