G. Natesa Nainar vs Sri Karikudinathaswamy Devastanam

Ratnam, J.—The plaintiff in O.S. 252 of 1978, District Munsif''s court, Kumbakonam, who succeeded before that court and lost before the lower appellate court, is the appellant in this second appeal. The property in dispute is an extent of 2 acres and 62 cents of punja situate in R.S. No. 31-2-A in Marudhanallur village, Papanasam taluk, and admittedly this property belongs to the respondent. According to the case of the appellant, originally, the property in dispute was uncultivable waste and in 1947, was leased out to the appellant on an agreement that the appellant should spend and reclaim the property and render it cultivable and plant coconut trees and rear them also at his expense. It was also further agreed that when the trees reached the yielding stage, the appellant should execute a lease deed to the respondent agreeing to pay rent. The appellant claimed that he spent a sum of Rs. 3000 in reclaiming the land and in planting coconut saplings. The further case of the appellant the was in possession of the property as a lessee and had also been recorded as a cultivating tenant. An earlier suit in O.S. 534 of 1970 on the file of the District Munsif, Kumbakonam, according to the appellant, was filed by him praying for a relief of permanent injunction and though that suit was decreed by the trial court, the lower appellate Court dismissed the suit holding that the appellant was not entitled to a permanent injunction against the respondent, but such an adjudication, according to the appellant, would not bar the present suit. The appellant reiterated his possession of the property and put forth the plea that the respondent had no right to forcibly take possession of the property from the appellant. Alleging that the respondent was attempting to lease out the property in open auction and that the auction was fixed for 24th July, 1978 and the respondent without taking possession of the property from the appellant under due process of law cannot do so, the appellant prayed that the respondent should be restrained by an injunction from interfering with his possession of the property in dispute except under due process of law and other incidental reliefs. In the written statement filed by the respondent herein, the case of the appellant that the disputed property was lying waste and that there was an agreement for reclaiming that property with the funds of the appellant and for planting coconuts and for the execution of a lease deed was denied. The status of the appellant as a cultivating tenant was questioned as, according to the respondent, the suit property was a coconut tope and as such exempted under the provisions of Tamil Nadu Act 57 of 1961. Referring to the institution of O.S. 534 of 1970, District Munsif''s court, Kumbakonam, the respondent contended that the matter was taken in S.A. 1332 of 1974 before this Court and therein it had been found that the right of the appellant was only to enjoy the usufructs of the coconut trees without any rights to the soil and the dismissal of the prior suit in O.S. 534 of 1970, District Munsifs court, Kumbakonam, would operate as res judicata and, therefore, the suit was not maintainable. Claiming that a notice was issued to the appellant with a view to put up the usufructs of the coconut trees in public auction, the respondent set up the plea that the public auction was duly held in the presence of the Inspector, Hindu Religious and Charitable Endowments Department, pursuant to the directions given by the Assistant Commissioner, Hindu Religious and Charitable Endowments department, and one T. Krishnaswami Reddiar became the successful bidder in such public auction. Refuting the claim of the appellant that he was in possession of the disputed property, the respondent stated that the appellant was not entitled to any protection by the grant of an injunction and that the possession of the appellant, if any, would only be that of a trespasser. On the aforesaid grounds, the respondent prayed for the dismissal of the suit.

Before the learned District Munsif, Kumbakonam, on behalf of the appellant Exs. A1 to A4 were marked and the appellant and three others were examined as P.Ws. 1 to 4 , while, on behalf of the respondent, Exs. B1 to B3 were filed and the Executive Officer of the respondent-temple was examined as D.W.1. On a consideration of the oral as well as the documentary evidence, the learned District Munsif, Kumbakonam, found that though the prior suit in O.S. 534 of 1970 had been decided against the appellant, yet, on the basis of the entry in the Record of Tenancy Rights Register, secured by the appellant, he would be entitled to file a fresh suit praying for the relief of injunction and such a suit would not be barred by res judicata. Possession of the disputed property was also found with the appellant and an injunction as prayed for by the appellant was granted as, according to the trial court, the appellant was not a trespasser and his possession was lawful. In the result, the suit was decreed. Aggrieved by this, the respondent herein preferred an appeal in A.S. 97 of 1979 Sub Court, Kumbakonam. On an exhaustive reconsideration of the oral as well as the documentary evidence and also taking into account the scope and effect of the prior adjudication which culminated in S.A. 1332 of 1974 before this Court, the learned Subordinate Judge held that only the usufructs of the coconut trees were leased out to the appellant and he would only he a licensee and cannot claim rights as a cultivating tenant based on the entry in the Record of Tenancy Rights Register and further that the suit was barred by res judicata. On these conclusions, the lower appellate Court reversed the judgment of the trial Court and dismissed the suit. It is the correctness of this that is challenged by the appellant in this second appeal.

The main contention of the learned counsel for the appellant is that the prior proceedings ending with S.A. 1332 of 1974 before this Court would not operate as res judicata. Elaborating this, the learned counsel for the appellant submitted that Ex. A1, the entry in the Record of Tenancy Rights Register, conferred Rights on the appellant as a cultivating tenant and having regard to the conclusiveness of the correctness of the entry in the Record of Tenancy Rights Register, as declared by the provisions of Tamil Nadu Act 10 of 1969, the right of the appellant as a cultivating tenant and his entitlement to possession as a cultivating tenant and the protection of such possession cannot be denied to him. Reference was also made in this connection by the learned counsel to the fact that by the time O.S. 534 of 1970 disposed of on 16th February, 1973, S. 16-A of Tamil Nadu Act 10 of 1969, had been enacted and had come into force with effect from 27th November, 1972, and, therefore, the adjudication in O.S. 534 of 1970 could not be relied upon by the respondent to throw out the present suit. Per contra, the learned counsel for the respondent submitted that the rights urged by the appellant in the course of O.S. 534 of 1970 and the present suit were the same, namely, rights as a cultivating tenant and such rights had been negatived by this Court on a former occasion and it is, therefore, not open to the appellant to reagitate the same rights. Referring to the entry in the Record of Tenancy Rights Register, the learned counsel pointed out that the very object of Tamil Nadu Act 10 of 1969 is only to prepare a record of rights and not to confer rights and that the mere entry does not confer any rights on any person and, therefore, it is not open to the appellant to claim rights on the basis of the entry in the Record of Tenancy Rights Register. Adverting to the argument on behalf of the appellant relating to the invalidity of the adjudication in O.S. 534 of 1970, the learned counsel for the respondent relied upon the decision of the Full Bench in Periathambi Goundan v. District Revenue Officer 1980-2-M.L.J. 89 at 99 = 93 L.W. 169 to contend that all proceedings instituted prior to the introduction of S. 16-A in Tamil Nadu Act 10 of 1969 had to be dealt with and disposed of as if that section had not come into force and, therefore, the adjudication in O.S. 534 of 1970, though made on 16th February, 1973 cannot be characterised to be one by a Court not competent to adjudicate upon such matters and, therefore, S. 11, C.P.C., would squarely apply. Besides, it was also pointed out by the learned counsel for the respondent that the right asserted by the appellant in the earlier suit and in the present suit was the same, namely, the right of a cultivating tenant and the appellant should have set forth all the grounds on the basis of which he claims such rights and if he had failed to do so, then he would be barred by Explanation IV to S. 11, C.P.C.

Before embarking upon a consideration to the rival contentions urged it is necessary to note the circumstances which led to the institution of O.S. 534 of 1970 and the scope of the adjudication therein. It is seen from Ex.B1, the printed copy of the judgment in O.S. 534 of 1970, District Munsif Court, Kumbakonam, that the basis on which the appellant laid O.S. 534 of 1970, is the same as in the present suit, out of which the second appeal has arisen, namely, lease of uncultivable land for purposes of reclamation and planting of coconuts and acquisition of rights by the appellant therein as a cultivating tenant. It was this claim so made by the appellant that was refused by the respondent in the written statement filed in the course of the earlier suit. On those pleadings, issue No. 1 related to the question whether the plaintiff (appellant herein) was a cultivating tenant of the suit property. Though the learned District Munsif in Ex.B1, found that the appellant was a lessee of the property and not a mere licensee for the collection of the usufructs and a cultivating tenant as well of the property, the lower appellate Court in A.S. 78 of 1973, reversed that finding and held that the appellant was not entitled to claim any right as a cultivating tenant in the property belonging to the respondent and that he had not established the raising of any crops therein, but that the appellant was only a licensee of the usufructs of the coconut trees and nothing more and further that in any case having regard to S. 51(iv) of Tamil Nadu Act 57 of 1961, the appellant cannot be heard to claim statutory rights as a cultivating tenant. It was in that view that the suit instituted by the appellant in O.S. 534 of 1970 was dismissed. In S.A. 1332 of 1974, disposed of on 7th February, 1974 by this Court, the conclusions arrived at by the lower appellate court were upheld (sic) and it was held that what had been leased out in favour of the appellant was only the usufructs of the coconut trees and he had no right in the soil and that even on the assumption that the appellant was a lessee of the suit property, yet by virtue of S. 51(iv) of the Tamil Nadu Act 57 of 1961, the provisions of the Tamil Nadu Cultivating Tenants Protection Act will not apply and further that having regard to the exemption under S. 51(iv) of the Tamil Nadu Act 57 of 1961, exempting thopes, the appellant would not be entitled to any right in the soil as a cultivating tenant, and, therefore, no injunction should be granted in his favour. It is thus seen from Ex.B1, and from the appeals therefrom, that the very right projected by the appellant to the disputed property in question was as a cultivating tenant and that claim had been negatived on the ground that the appellant was only a licensee of the usufructs in the coconut thorpe and had no rights whatever in the soil. In the suit out of which the present second appeal has arisen, the appellant had claimed the same rights as a cultivating tenant with the addition of the entry in the Record of Tenancy Rights Register in his favour. That however would not make any difference to the applicability of the principle of res judicata. It has to be remembered that the entry in the Record of Tenancy Rights Register by itself does not confer any right upon the appellant as a cultivating tenant, for, the main aim and purpose of the provisions of Tamil Nadu Act 10 of 1969 is only to prepare and maintain a record of tenancy rights in respect of agricultural lands in Tamil Nadu. No provision in Tamil Nadu Act 10 of 1969 has been brought to the notice of the court to show that an entry in the Record of Tenancy Rights Register confers right as a cultivating tenant on a person whose name is so entered. The provisions of Tamil Nadu Act 10 of 1969 pertain to the preparation of the record and are not declaratory of rights as a cultivating tenant. It is common knowledge that there may be several persons fulfilling the requirements of the definition of a cultivating tenant, but whose names may not be recorded in the Record of Tenancy Rights Register. Do they cease to be cultivating tenant? They do not. Equally, it has to be borne in mind that a person may not be a cultivating tenant at all, but nevertheless manage to secure an entry to that effect in his name. Would such a person become a cultivating tenant merely by reason of his name being found in the Record of Tenancy Rights Register? In my opinion, he does not obtain or secure any rights as a cultivating tenant. The entry in the Record of Tenancy Rights Register, as pointed out earlier, does not confer by itself any right on a person as a cultivating tenant unless he satisfies the other requirements. In the course of the earlier adjudication in O.S. 534 of 1970, the lower appellate Court and this Court found that the appellant was only a licencee of the usufructs, namely, the coconuts and had no rights whatever in the soil. The suit was instituted on 20th May, 1970 and was originally decreed ex parte on 14th July, 1972, but had been later restored to file on 18th December, 1972 in I.A. 1013 of 1972. The entry in the Record of Tenancy Rights Register has come into being in the interval and has been published in the Gazette on 11th October, 1972 (sic). The suit had been disposed of on 16th February, 1973, so that the right based upon the entry in the Record of Tenancy Rights Register was also available to the appellant as a ground to secure an order for injunction in his favour as prayed for in O.S. 534 of 1970. But the appellant did not specifically urge that right available to him on the strength of the entry in the Record of Tenancy Rights Register prior to the disposal of the suit in O.S. 534 of 1970 under Ex.B1 on 16th February, 1973. To such a situation, Explanation IV to S. 11, C.P. Code, would squarely stand attracted so that the appellant cannot be heard now to contend that some rights have been secured on the strength of the entry in the Record of Tenancy Rights Register and they can be enforced in the course of a subsequent suit based more or less on the very same claim as was agitated and negatived in the prior suit. Looked at even from a broader perspective, it is obvious that the appellant was agitating in the course of O.S. 534 of 1970 rights as a cultivating tenant. The particular source to which he was able to trace those rights asserted in the course of that suit was not really material. In essence, in O.S. 534 of 1970, the appellant was asserting rights as a cultivating tenant on the footing that he was a lessee of the disputed property belonging to the respondent and Ex.A1, the entry in the Record of Tenancy Rights Register, produced in this case merely lent evidentiary support to that claim. It was necessary for the Court in disposing of such a claim to adjudicate upon the status of the appellant as well as his claim to rights as a cultivating tenant and precisely this was done by the lower appellate court and this court holding that the appellant was not a cultivating tenant at all, but was only a licencee of the usufructs in the coconut thorpe with no rights whatever in the soil. The rights projected by the appellant in the earlier suit and in this suit are the same, namely, rights as a cultivating tenant and the appellant had failed in the earlier suit in establishing such rights. Earlier, it has been pointed out how the mere entry in the Record of Tenancy Rights Register would not clothe the appellant with rights as a cultivating tenant and, therefore, the circumstance that the entry under Ex. Al had come into being on 11th October, 1972, cannot be availed of, by the appellant to claim the same rights, which had been negatived by the earlier adjudication of this Court. Vide AIR 1937 1 (Privy Council) . Thus, having regard to the avowed object of Tamil Nadu Act 10 of 1969 and the effect of an entry made in the Record of Tenancy Rights Register under its provisions, the appellant cannot be permitted to reagitate rights as a cultivating tenant negatived earlier purporting to do so on the basis of the entry under Ex.A1. Looked at from any point of view, the applicability of S. 11, C.P.C., or that of Explanation IV to S. 11, C.P.C., to this case cannot be ruled out.

That leaves for consideration the objection raised by the learned counsel for the appellant regarding the competence of the District Munsif court, Kumbakonam, to deal with O.S. 534 of 1970 on 16th February, 1973, when the suit was disposed of, in the light of the introduction of S. 16A in Tamil Nadu Act, 10 of 1979. An argument was raised that on and from 27th November, 1972 the adjudication on the question of the status of a person as a cultivating tenant was exclusively within the jurisdiction of the Tamil Nadu Act 10 of 1969 and in that sense the civil court was incompetent to go into the question on 16th February, 1973, which it did under Ex.B1. At first blush, this argument may appear to be attractive and acceptable. But this had been repelled in very clear terms by the decision of the Full Bench in Periathambi Gounder v. District Revenue Officer 1980-2-M.L.J. 89 at 99 = 93 L.W. 169 (F.B.). In paragraph 29 of the decision of the Full Bench, the effect of the introduction of S. 16A with reference to suits instituted prior to the coming into force of S. 16A and subsequent to the introduction of that section has been dealt with. The Full Bench points out at page 99 as follows:

...a suit which has been Instituted prior to the coming into force of S. 16A of the Act will have to run its natural and normal course prescribed bylaw without in any way being affected by the provisions contained in S. 16A of the Act, because there is nothing in S. 16A expressly or by necessary implication taking away the jurisdiction of the civil court validly and competently assumed at the first instance. Consequently, even if a decree had not been passed in a suit at the time when S. 16A came into force, the fact that S. 16-A came into force during the pendency of the suit will not prevent the court from exercising its jurisdiction lawfully and validly invoked and the same principle will apply to the further course of the suit in the form of appeal or revision.

In this case, the suit in O.S. 534 of 1970 had been instituted on 20th August, 1970, long prior or to the introduction and coming into force of S. 16A of Tamil Nadu Act 10 of 1969 on 27th November, 1972. That would mean, according to the principle laid down by the Full Bench referred to above, the court was fully competent to deal with the questions agitated before it including that of the status of the appellant as a cultivating tenant. That the appellate Court was likewise competent to deal with such a question has also been pointed out by the Full Bench in the observations set out earlier. Therefore, the lower appellate Court as well as this Court in S.A. 1332 of 1974, were quite in order in considering the claim of the appellant as a cultivating tenant and also in proceeding to negative the same. The adjudication of the trial court in O.S. 534 of 1970 and that of the lower appellate Court as well as this Court in S.A. 1332 of 1974, was thus quite in order and cannot be stated to have been given by a court which was not competent to deal with and dispose of such matters. There is no dispute that the respondent being a temple would be a public trust within the meaning of S.2(25) of Tamil Nadu Act 57 of 1961, Even assuming, as claimed by the appellant that he has secured rights as a cultivating tenant in respect of the property belonging to a public trust and would be a cultivating tenant under S. 2(5) of Tamil Nadu Act 57 of 1961, S. 51(iv) of that Act excludes the applicability of the provisions of the Act to lands converted into thorpes. There is no dispute that the property in question is coconut thorpe and, therefore, the appellant cannot be heard to agitate cultivating tenancy rights as against the respondent. Besides, as rightly pointed out by the lower appellate Court, there is no acceptable evidence to show that the appellant had been in possession and enjoyment of the property indispute and bad also raised punja crops therein. No doubt, the evidence discloses sale of coconuts by the appellant, but that would also be consistent with the prior adjudication of the status of the appellant as the licencee of the usufructs of the coconut trees. Under these circumstances, the appellant cannot claim that he is a cultivating tenant in possession of the disputed property and, therefore , his possession ought to be protected by granting an injunction in his favour. The lower appellate Court was quite correct in holding that by reason of the prior proceedings in O.S. 534 of 1970, and the absence of any acceptable evidence to show the possession and enjoyment of the disputed property by the appellant as a cultivating tenant, he is not entitled to the relief prayed for by him in the suit. Consequently, the second appeal fails and is dismissed with costs throughout.