K. Visalakshi and others vs Maruthamuthu Pillai, rep. by power agent Pushpaleelavathi

Sethuraman, J.—This second appeal has been preferred by the legal representatives of the defendant Kanjamalai Pandithar in O.S. No. 105 of 1974, on the file of the District Munsif''s Court, at Tiruvarur. The plaintiff became the owner of the house with its backyard and appurtenance by purchase under a sale deed, dated 4th April, 1972. Kanjamalai Pandithar was a tenant, paying a rent of Rs. 110 per annum or Rs. 9.17 per mensem. On the ground that there were arrears of rent and that the building was required for the use of the plaintiff, a notice terminating the tenancy was given, and it was followed by a suit for recovery of possession with mesne profits. The defendant filed a written statement contending that he was an agriculturist and that he was entitled to the benefits of the Tamil Nadu Act 40 of 1971.

The trial court held against the defendants and decreed the suit. On appeal, the lower Appellate Court has come to the conclusion that if the building was let with the site, then the provisions of Act 40 of 1971 were not applicable. The result was that the appeal was dismissed, and the decree for possession was confirmed.

As the defendant is no more, his legal representatives have filed the present second appeal which has been admitted on the following questions--

Whether the suit is not maintainable in a Civil Court?

Whether the superstructure be longing to the landlord vests in the defendant as per S.3 of the Kudiyiruppu Act 40 of 1971 ?

As far as the first question is concerned, I do not think it proper or necessary to go into it, especially when there was no question as regards the maintainability of the suit in the trial Court or in the lower Appellate Court. It is thus necessary to examine only one point, viz., whether the lower Appellate Court was justified in its interpretation of the relevant provisions of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act, 1971 (Act 40 of 1971). It is enough for our present purpose to refer to S.3 of the said Act and the definition provision regarding ''kudiyiruppu''. S.3 of the Act, in so far as it is material, runs as follows--

S.3(1) Save otherwise provided in this Act, any agriculturist or agricultural labourer, who was occupying any kudiyiruppu on the 19th June, 1971, either as tenant or as licencee shall, with effect from the date the commencement of this Act, be the owner of such kudiyiruppu of shall vest in him absolutely free from all encumbrances.

Where in the case of an occupant of kudiyiruppu in whom such kudiyiruppu vests under sub-S. (1), the superstructure belongs to any person other than such occupant, such superstructure shall also, with effect from the date of the commencement of this Act, vest in such occupant absolutely free from all encumbrances.

Sub-S.(3) of S.3 provides for cases where any person occupying a kudiyiruppu already owns a dwelling house or hut or a house site, within a distance of one kilometre from the kudiyiruppu. The word ''kudiyiruppu'' is defined in S.2 (8) of the Act as follows--

Kudiyiruppu'' means the site of any dwelling house or hut occupied either as tenant or as licencee by any agriculturists 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.

Explanation I to the above definition calls for a presumption that any person occupying the kudiyiruppu is an agricultural labourer or an agriculturist until the contrary is proved. Explanation II is not relevant for our purpose.

The lower Appellate Court took three possible cases that may arise for the application of this provision. In the first category of cases falls a case where the site belongs to a particular person and the agriculturist has put up a superstructure. The second category comprises of a case where a site belongs to a particular person and the superstructure belongs to a thud party and the agriculturist is in occupation of the property. The lower Appellate Court is of the view that to these two categories of cases, the provisions of the Act would clearly apply. This view is correct. The third category of cases mentioned by the lower Appellate Court is where the site as well I as the superstructure belongs to the owner. In such a case, according to the lower Appellate Court, the occupant does not become the owner. For the purpose, reliance is placed on the following words in sub-S.(2) of S.3, viz. "The superstructure belongs to any person, other than such occupant." It is not clear how the Court understands the above words to mean that the superstructure must belong to a third party and not the owner of the site itself. So long as the occupant is not the owner of the superstructure, sub-S.(2) of S.3 would apply. The words "the superstructure belongs to any person other than such occupant" would include all those cases where the occupant is not the owner but some one else is, whether he is the owner of the site or a third party. The provision is so clear in its language that it is rather surprising that the lower Appellate Court came to the conclusion that sub-S.(2) of S.3 does not apply to a case where the superstructure and the site belong to the same owner. In this case, there is no dispute that the defendant was an agriculturist. On this construction of the provision it would follow that the defendant was entitled to rely on S.3 (2) of the Act read with S.2 (8). The result is, the suit should have been dismissed. It is accordingly dismissed. The second appeal is allowed. But in the peculiar circumstances of the case, there will be no order as to costs.