G. Arumuga Thevar vs Sathur Sri Venkatachalapathy Devasthanam

K.P. Sivasubramaniam, J.—This Second Appeal is directed against the judgment of the learned Subordinate Judge, Srivilliputtur, in A.S.

No. 36 of 1983 dated 28.1.1984, reversing the judgment of the learned District Munsif, Sathur, in O.S. No. 421 of 1980 dated 17.4.1982. The

defendant in the suit is the appellant in the above Second Appeal.

The respondent/plaintiff filed the suit for declaration that the suit property belongs to the plaintiff, for a direction directing the defendant to hand

over possession of the suit properly to the plaintiff, and for directing the defendant to pay damages for use and occupation from 18A1977 to

17.4.1980 for three years at the rate of Rs. 400/- per annum and for future damages at the same rate.

According to the plaintiff, the suit property belongs to the plaintiff and the patta number for the same is standing in the name of the temple and

the same was entered in the property register of the temple duly maintained by the plaintiff. The plaintiff contends that in the Survey Number,

Government had recognised the title of the plaintiff, and issued patta in favour of the plaintiff. The plaintiff further contended that the defendant has

no right or title over the suit property and that he had committed trespass into the suit property and was in possession from 9.11.1976. The plaintiff

also contended that the suit property was an agricultural land, which will fetch an income of not less than Rs. 400/- per annum if leased out.

Therefore, the defendant has to pay Rs. 400/- per annum by way of damages for use and occupation from 9.11.1976 onwards. Inspire of a notice

having been issued on 5.3.1979 by the plaintiffs counsel, the defendant did not respond to the same. Hence the plaintiff filed the suit. In the written

statement filed by the defendant, it was contended that the suit property was leased out by the plaintiff in favour of his father in the year 1950 on an

annual lease of Rs. 34/-, that the father of the defendant was personally cultivating the property from then onwards as a tenant under the plaintiff.

The lease amount was subsequently raised to Rs. 42/- per annum in the year 1961 and the father of the defendant was cultivating the property upto

the end of Fasli 1380. The land was uncultivable land and the father of the defendant had spent large amounts every year to improve the land and

the entire extent was brought under his personal cultivation and more than Rs. 10,000/- had been spent in all these years. While so the land was

taken over by the Government and Survey and settlement were introduced in the year 1961-62 and in the survey and settlement, the suit property

was classified as poramboke. However, father of the defendant continued to cultivate the suit property and was in enjoyment of the same. The

plaintiffs Devasthanam refused to collect lease amount from the defendant''s father as the land was classified as poramboke Subsequently, the

Government had issued notice u/s 7 of Act 3 of 1905 and penal tax was being collected from the defendant''s father. The father of the defendant

continued to cultivate and enjoy the suit property and penal tax was paid up to 1972 and thereafter ''B'' memos were not issued tithe defendant''s

father and no penal tax was collected. The defendant''s father was merely told that the Devasthanam/plaintiff had moved the Government for

rectifying the mistake in classifying the suit property as poramboke and for issue of patta in favour of Devasthanam and that after few years it

appeared that the suit property was classified as patta land and patta also appears to have been issued in favour of the plaintiffs Devasthanam. The

land was being cultivated by the defendant''s father and after his death in the year 1975, the defendant, as one of his sons, succeeded to the

tenancy of the suit property and he has been in legal possession of the properly from the year 1975 Therefore, according to the defendant he was a

cultivating tenant, entitled to the benefits of the Cultivating Tenants Protection Act and the defendant cannot be evicted on the grounds alleged in

the plaint. The claim of the plaintiff as being entitled to receive Rs. 400/- towards damages per year was also disputed. That defendant further

contended that there was no averment in the plaint that the title of the plaintiff was in any manner, denied casting any cloud on the title and that

therefore, the prayed for declaration was misconceived. He would also contend that as a cultivating tenant the claim for possession as made by the

plaintiff was not sustainable. The plaintiff filed a reply statement in which he has denied all the averments made in the written statement.

The trial Court held that in view of the tact that the defendant had not disputed the title of the plaintiff and the plaintiff had established that his

father was a lawful tenant under the plaintiffs temple, he was entitled to the protection under the Tamil Nadu Cultivating Tenants Protection Act and

that he cannot be treated as a trespasser. With the result, the prayer for declaration was granted, hut rejected the claim for possession of the suit

property. The lower Appellate Court confirmed the findings that the father of the defendant was a tenant under the plaintiff, but held that after the

Government took over the land under Act 26 of 1948 and the defendant having been served with a notice u/s 7 of the Land Encroachment Act,

the defendant had become a trespasser and hence the plaintiff was entitled to a decree for possession also.

According to the learned counsel for the appellant, the plaintiff had completely suppressed the fact that the father of the defendant was a lawful

tenant under the plaintiff, and that the defendant was always prepared to give fair rent due to the plaintiff and thus the contention of the plaintiff that

the defendant was a trespasser was not at all correct. On the other hand, learned counsel for the respondent would strenuously contend that when

once the land had been taken over by the Government and the defendant having been issued with ''B'' memo, no reliance can be placed upon the

fact that the father of the defendant was a tenant. He would also refer to Section 3(e) of Act 26 of 1948 which was similar to Section 16 of the

Land Acquisition Act whereby the notified land became absolutely vested with a State free of all encumbrances.

The main basis on which the lower Appellate Court held in favour of the plaintiff notwithstanding the finding that the defendant''s father was a

lawful tenant under the plaintiff, was that by reason of the fact that the defendant was paying penalty and ''B'' memo (Ex.B.6 to B.14) proceeded

by a notice u/s 7 of the Land Encroachment Act (Ex.B.5), the nature of the possession by the defendant can only be as a trespasser and not as a

tenant. In coming to the said conclusion he had relied on two judgments of this Court which had dealt with the consequences of the tenant denying

the title of the plaintiff and setting up title in a third person (jus tertii) and that notice u/s 7 of the Land Encroachment Act itself would amount in law,

to eviction and that it was not necessary that there should be actual dispossession. It is not known as to how the principle relating to jus tertii would

apply to the facts of this case. The defendant has not denied the title of the plaintiff, while the plaintiff had chosen to suppress the vital facts relevant

to how the defendant had come into possession, and the facts defendant had stated in his written statement as regards the anterior history as to

how the land which originally belonged to the temple was taken over by the Government under Tamil Nadu Act 26 of 1948, the fact of ''B'' memo

having been issued to him by the Government and the subsequent assignment of the land in favour of the plaintiff. In fact in paragraph No. 8 of the

written statement, it is specifically pleaded that the plaintiff had not alleged that the title of the plaintiff had been disputed or denied in any manner,

and that therefore, the prayer for declaration was not maintainable. Therefore, the conclusions of the learned Appellate Judge, based on the

principles of denial of title by the defendant, are totally incorrect and irrelevant.

The only issue which arises for consideration is as to whether the possession of the property by the defendant as the legal heir of a person who

was cultivating the land as a tenant under the plaintiff would be classified as a trespass, merely by the fact that at one stage the land was taken over

by Government under Act 26 of 1948 and was later assigned in favour of the original land holder/plaintiff. In this context, it is worthwhile to repeat

that the plaintiff had originally filed a very bald plaint completely suppressing the fact of the father of the defendant having been a lawful tenant

under the plaintiff, and about the fact that the takeover of the land by the Government and subsequent assignment of the land. It is only after a

detailed written statement was filed, the plaintiff chose to file a reply statement. Even in the reply statement the plaintiff would not condescend to

state anything regarding the take over of the land under Act 26 of 1948, but would go to the extent of denying the tenancy in favour of the father of

the defendant and contending that the plaintiff was not aware of any ''B'' memo having been issued against the defendant and would also state that

the Government had no right to the property and that the property always belonged to the plaintiff. If so, it is not known as to how before the

Appellate Court it was successfully contended by the plaintiff that the takeover of the land by the Government rendered the defendant as a

trespasser. Of course ,this Court need not be diverted by the irresponsible nature of the pleadings of the plaintiff and it is necessary only to

consider about the nature of the defendant''s possession.

Both the Courts have concurrently accepted the case of the defendant that his father was a tenant of the plaintiff prior to the take over of the

land under Act 26 of 1948. Counsel for the respondent placed strong reliance on Section 3(c) of the Act which holds that all rights and interest

created by the land holder in or over the property shall cease as against the Government. This provision is sought to be treated as equal to and in

pari materia with Section 16 of the Land Acquisition Act, 1894. Section 16 of the Land Acquisition Act holds that when once the possession is

taken over by the Collector after making the award, the land shall vest absolutely in the Government free from all encumbrances. Before an attempt

is made to analyse both the provisions, it would be useful to bear in mind the basis of the rule of interpretation or provisions which are in pari

materia. Undoubtedly such provisions are to be given the same meaning, but the context in which the expressions are used in the different Acts

have to be borne in mind. If the aims and objects of the two Acts are not similar and if the contents of the two Acts are not in pari materia. it will

not be a sound principle of construction either to give same meaning to both the provisions or to rely upon the rulings rendered in the context of

one of the two Acts. The expressions used in an Act must lake their colour from the context in which they appear vide the following judgments of

the Supreme Court:

(i) Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and Others,

(ii) S. Mohan Lal Vs. R. Kondiah,

(ii) 1990 (Suppl) S.C.C., 785 (Gwaliar Rayan v. Custodian of Vested Forest, Palghat)

Applying these tests while the object of the Land Acquisition Act, 1894 is to acquire the land needed for public purpose, the purpose of Act 26 of

1948 was to abolish Zamindari system for many, reasons, one of the reasons being that the rents levied by the land holder from his ryots was

substantially in excess of the revenue assessment and the illiterate peasantry was left at the mercy of unscrupulous agents resulting in discontent

among the estate ryots. Therefore, while the land acquired under the Land Acquisition Act is completely taken away from the owner to be used for

a public purpose, under Act 26 of 1948, notwithstanding the fact that any right over the property shall cease to exist as against the Government,

the object is only to ultimately benefit the land holder or the ryot. Sections 11 to 15 of the Act enable the ryot or the land holder to apply for the

ryotwari patta and to continue to be in possession of the land. Therefore, the vesting of the land in the Government as contemplated under Act 26

of 1948 is somewhat fiction subject to the right of the ryot or the land holder to get patta. Even apart from Sections 11 to 15 of the Act the

Government has also issued various Government Orders such as G.O.Ms. No. 2502 Revenue, dated 8.7.1958 under which pattas are also

granted outside the provisions of the Act. Therefore, it is not possible to hold that Section 16 of the Land Acquisition Act and Section 3(c) of Act

26 of 1948 are in pari materia.

For the same reasons, it is also not possible to hold that a tenant who was lawfully inducted into possession of the land would become a

trespasser by the mere reason that the land was taken over under the Act 26 of 1948. It is true that the land holder or the occupier, who does not

get the ryotwari patta either under the Act or outside the provisions of the Act is liable to be treated as a trespasser and be evicted under the Land

Encroachment Act. But the rights of the ryot or the tenant vis-a-vis the land holder does not become extinguished by reason of Section 3 of Act 26

of 1948. Section 3(c) of the Act protects only the rights of the Government and not of the land holder as against his tenant. Therefore, the fact that

a notice u/s 7 of the Land Encroachment Act was issued by the Government to the defendant or that B memo was issued against him cannot in any

manner take away the right of the tenant as against the land holder/plaintiff to whom the lands had been re-assigned. The conclusions of the lower

Appellate Court in the said context cannot be sustained. Viewed from another angle also it cannot be disputed that the defendant was entitled to

seek ryotwari patta as provided u/s 11 of the Act, under which every ryot in an estate is entitled to a ryotwari patta. A ryot is defined in Section

3(15) of the Tamil Nadu Estate Lands Act, 1908 as meaning a person who holds ryoti land in an estate for the purpose of agriculture on condition

of paying to the land holder the rent which is legally due. It may be that the defendant had not exercised his right u/s 11 of the Act and the plaintiff

had obtained assignment of the land outside the provisions of the Act (Ex.A.5). But that does not entitle the land holder to call his own tenant as a

trespasser. In fact, while dealing with the similar provision under the Andhra Pradesh Estates (Abolition and Conversion into Ryotwari) Act, 1948

as regards the right of a ryot for conferment of pallas, Chinnappa Reddy, J. observed in his judgment, reported in Maddada Chayanna Vs.

Karnam Narayana and Another, that the object of the Act was to abolish intermediaries and to protect the ryots and not to leave them in the

wilderness. It is true that Section 56(1)(c) of the Andhra Pradesh Act fell for consideration by the Supreme Court in the said judgment and the

corresponding provision in the Tamil Nadu Act stands deleted. Nonetheless the right of a ryot to obtain patta is intact u/s 11 of the Tamil Nadu

Act. This particular aspect of the matter is stated only to emphasise that characterising the defendant as a trespasser is neither legally nor factually

sustainable.

The contention of the plaintiff/respondent that neither the father of the defendant nor the defendant had executed any lease agreement, is stated

only to be rejected. On the basis of the evidence both the Courts have concurrently held that the father of the defendant was a tenant under the

plaintiff. Even though there is no written agreement, the tenancy would also be implied from the circumstances and the fact that rental receipts had

been issued by the plaintiff, has been clearly proved. The defendant definitely answers the requirements for being qualified as a cultivating tenant u/s

2(aa) of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955.

Therefore, the suit as filed by the plaintiff seeking possession of the suit land, cannot be sustained. However, the declaratory relief as granted

by the trial Court shall stand confirmed. It is open to the plaintiff to seek for appropriate remedy or to take such steps as open to him to seek

eviction of the defendant as a tenant or for fixation of fair rent as such, etc. in a manner known to law and the decision in this appeal shall not stand

in the way of the plaintiff seeking for such relief. In the result, the above Second Appeal is allowed and the judgment of the trial Court, is restored.

No costs. The respondent in the Second Appeal has filed Cross Objections claiming damages from the defendant/appellant to the extent of the

rejection of his claim by the Courts below. In view of the conclusions arrived at by me in the above Second Appeal, the Cross Objections cannot

be sustained and the same is dismissed. No costs.