Gopal Gounder and others vs Kothandarama Gounder

V. Ramaswami, J.—The defendants are the appellants. The suit was filed by the respondent-plaintiff for a declaration of his title to an extent

of 15 cents out of 42 cents in Survey No. 34/17, and for recovery of possession. The plaintiff''s case was that the property was purchased by his

father and that after his father''s death, he became entitled to the same. He further contended that the defendants asked for permission to put up

some thatched houses in the site agreeing to vacate and deliver possession as and when demanded by the plaintiff and on that understanding the

site was given to the defendants and they have put up thatched houses. The plaintiff demanded the defendants to vacate and deliver possession of

the site and finding that the defendants are not complying with the request, he has filed the present suit. The defendants did not dispute the original

title vested in the father of the plaintiff, or after his death, on the plaintiff. But, they pleaded that they are entitled to the benefits of the Tamil Nadu

Occupants of Kudiyiruppu (Conferment to Ownership) Act, 1971, hereinafter referred to as the Kudiyiruppu Act, 1971, and that this suit for

possession is accordingly barred under S. 23 of the Kudiyiruppu Act.

Both the courts below have concurrently held that the plaintiff has established his title to the property as well as the permissive nature of

possession of the defendants pleaded by the plaintiff. The defendants were held not entitled to the benefits of the Kudiyiruppu Act on the ground

that the defendants, by setting up title to the property in themselves by adverse possession, have forfeited their rights, if any, under the Kudiyiruppu

Act. The courts below also held that there is no evidence to show that the defendants are agriculturists or agricultural labourers in order to entitle

them to the benefits of the Kudiyiruppu Act. It is against these findings, the defendants have filed the present second appeal.

The learned counsel for the appellants contended that even on the finding that the appellants'' possession was permissive as licencees and on the

admitted fact that they have put up constructions, they are entitled to the benefits of the Kudiyiruppu Act. He also contended that the finding of the

courts below that there is no evidence to show that the defendants are either agriculturists or agricultural labourers is contrary to the admission

made by the plaintiff himself and the other recorded evidence produced in this case, and against the presumption raised under the Kudiyiruppu Act

and that, therefore, that finding is also not binding in second appeal.

Under the Kudiyiruppu Act, any agriculturist or agricultural labourer who was occupying the Kudiyiruppu on the 19th day of June, 1971, either

as a tenant or as licencee, shall with effect from the date of the commencement of the Kudiyiruppu Act, be the owner of such kudiyiruppu and such

kudiyiruppu shall vest on him absolutely free from all encumbrances. ''Kudiyiruppu'' is defined as meaning the site of any dwelling house or hut

occupied, either as tenant or as licencee, 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. There is an explanation which says that ''it shall be presumed

that any person occupying the kudiyiruppu is an agricultural labourer or an agriculturist until the contrary is proved''. The word ''agriculturist'' is also

defined in the Act, as meaning a person who cultivates agricultural land by the contribution of his own manual labour or of the manual labour of any

member of his family. ''Agricultural labourer'' is defined as meaning a person whose principal means of livelihood is the income he gets as wages for

his manual labour on agricultural land but does not include a plantation labourer.

As already stated, the case of the plaintiff himself was that the defendants are licencees in respect of the suit houses and they have put up the

dwelling houses and are residing thereon. Though the Kudiyiruppu Act creates a presumption that a person Occupying a kudiyiruppu is an

agricultural labourer or an agriculturist until the contrary is proved, in this case, we have also the evidence of P.W.1, the plaintiff himself, who has

stated in his evidence in chief examination that the defendants are owning 5 acres of land in his village and that they are cultivating those lands

themselves. This evidence is enough to hold that the defendants are agriculturists within the meaning of the Kudiyiruppu Act. The Courts below

were therefore, in error in searching for some evidence on the side of the defendants in support of their plea that they are agriculturists when in fact

it is an admitted fact that they are agriculturists. It is also seen from the documents marked in this case that during the pendency of the suit,

proceedings were initiated by the Authorised Officer under the Kudiyiruppu Act and defendant 1 to 3 were held entitled to the benefits of the Act

in respect of 3 cents, 1 cent and 4 cents respectively in survey number 34 which was subdivided as survey Nos. 34/17A, 31/17B and 34/17C.

This order was made after notice to the plaintiff calling for his objections and after an elaborate enquiry into assertions made by the defendants.

The order declaring that the defendants are entitled to the said extents is dated 3rd August, 1973 and has become final. The entire file relating to

the enquiry and the particular order, dated 3rd August, 1973 is marked as Ex.B.14 in this case. Certainly, therefore, the observation of the courts

below that there is no evidence to show that the defendants are agriculturists is incorrect and the finding based on that incorrect statement vitiates

the ultimate conclusion and makes it liable for interference in second appeal. I have to hold, therefore, that the defendants are agriculturists in

occupation of Kudiyiruppu land as licencees on 19th June, 1971 and as such, the Kudiyiruppu land shall vest on them absolutely free from all

encumbrances.

The learned counsel for the respondent, however, contended that the defendants, by setting up title by adverse possession, have forfeited their

claim, if any, under the Kudiyiruppu Act and that, therefore, the plaintiff is entitled to the declaration and possession prayed for in the suit. In

support of this contention, the learned counsel relied on the decision of Ramaprasada Rao, C.J. reported in Boologanathan v. Govindarajan 1979-

2-M.L.J. 47=92 L.W. 272 . In that case it was held that if once a tenant openly denies the title of the lessor or pleads jus tertii, then it

automatically follows that he would not be considered as a tenant for any purpose whatsoever as under S. 111(g) of the Transfer of Properly Act

by such open denial of title or by pleading jus tertii, there is a forfeiture of the tenancy and the relationship of landlord and tenant is snapped

thereby. That was a case in which the landlord filed an application originally under the Tamil Nadu Buildings (Lease and Rent Control) Act, against

his tenant for eviction. The tenant in that proceeding denied the title of the landlord himself. The Rent Controller accordingly referred the matter to

the civil court as a dispute relating to title was involved. Thereafter, the landlord filed a suit for ejectment. The defendant filed an application under

S. 9of the Tamil Nadu City Tenants Protection Act. The tenant died pending the suit and his legal representatives were brought on record. The

question for consideration was whether the tenant had forfeited his rights to an application under S. 9of the Tamil Nadu City Tenants Protection

Act by reason of his disputing or denying the title of the landlord in the prior proceedings. It is in these circumstances the learned Chief Justice held

that by reason of the denial of the title in the earlier proceedings there was a forfeiture of the tenancy and that therefore the tenant could not then

claim to be a tenant and file an application under S. 9of the Tamil Nadu City Tenants Protection Act. This decision has no application to the

present case. In order to entail a forfeiture by denial and thereby deprive the defendants of any right under the agreement the forfeiture or denial

must have occurred prior to the suit and should have formed part of the cause of action on which the suit is based. It has been so held in a number

of decisions including the one reported in Gulam Mohamood v. Ammani Ammal 1960-2-M.L.J. 351=73 L.W. 688 , wherein Anantanarayanan, J.

as he then was, has referred to the earlier Privy Council decision and other decisions of this court in support of his view that in order to defeat a

defendant or to hold that the disclaimer of tenancy operates as forfeiture, the denial must have occurred prior to the suit. This decision directly

applies to the facts of this case. In this case, the defendants did not dispute the title of the plaintiff prior to the suit. In any case, there is no evidence

to show that there was any denial of title except in the written statement filed in this suit itself. The plea in the written statement could not become

the cause of action for the suit itself. It is, therefore, not possible to defeat the claim of the defendants for the benefits of the provisions of the

Kudiyiruppu Act by merely referring to the denial of title in the written statement.

It is then contended by the learned counsel for the respondent that in the proceedings taken under the Kudiyiruppu Act, the defendants 1 to 3

were held entitled to only 3 cents, 1 cent and 4 cents respectively and that, therefore, they have no defence for the remaining extent out of the 15

cents which is the subject-matter of the suit. The learned counsel for the defendants could not answer this contention. Ex.B14 clearly restricted the

right of the defendants 1 to 3 to the said extent of 3 cents 1 cent and 4 cents only and therefore, they have no right to claim the remaining 7 cents in

the subject-matter of the suit. The second appeal is accordingly allowed in part in so far as the decree and judgment of the courts below relating to

the 8 cents covered by Ex.B14, and the suit is decreed only for an extent of 7 cents which is not covered by Ex. B14. There will be no order as to

costs.