Kalyanasundaram Udayar vs Pazhaniayya Udayar

G. Ramanujam, J.—The defendant is the Appellant. The suit was one for possession filed by the respondent-plaintiff in respect of 4 cents in

Natham Jari in R.S. 182/5 of Thirupanipettai village, which belongs to him. The defendant-appellant took the property on lease from Anjammal,

mother of the plaintiff, who was the then owner of the property, on 30th July, 1955 (wrongly stated as 30th July, 1975 in the judgment of the

District Munsif) on a monthly rent of 25 paise. The plaint averred that the document of tenancy is admissible only for the purpose of proving that

the defendant is the tenant of Anjammal. The defendant attorned to plaintiff after the death of Anjammal. The plaintiff issued a notice on 3rd

March, 1976, under Exhibit A-2 to evict the defendant-appellant and the defendant sent a reply to that notice on 8th March, 1976, under Exhibit

A-3. The plaintiff''s case that the defendant is not an agriculturist, that he is too old to cultivate any land by contributing his own physical labour and

has no kudiyiruppu right, nor any kudiyiruppu patta has been given to him and therefore the appellant-defendant is liable to surrender his;

possession after removing the superstructure thereon.

The appellant-defendant in his answer contended that the suit is not maintainable, that he is in possession of the property even prior to the lease

dated 30th July, 1955, that he has not attorned to plaintiff, that he is a cultivating tenant entitled to the benefits of Act XXV of 1955, that besides

being a cultivating tenant under Srivanchinathaswami Devasthnam of Srivanchiyam for the past 15 years, he also owns one acre of nanja in

Thirupanipettai which is his ancestral property and therefore is entitled to the benefits of Tamil Nadu Act XL of 1971 (Tamil Nadu Occupants of

Kudiyiruppu (Conferment of Ownership) Act), and that by virtue of that Act, he has become the owner of the kudiyiruppu and therefore the

plaintiff-respondent is not entitled to possession or to claim any rent or future profits from the property.

The learned District Munsif found that the defendant is an agriculturist cultivating lands by contribution of his own physical labour and that he is

entitled to claim the suit site as a kudiyiruppu and in the end dismissed the suit. In appeal, the learned Subordinate Judge framed a point for

consideration as to whether the dismissal of the suit on the ground of want of jurisdiction to pass a decree for possession by the civil Court, can be

sustained and disposed of the appeal in a cavalier manner and allowed the appeal and granted a decree to the plaintiff (for possession) subject to

the rights of the defendant provided under Act XL of 1971. The correctness of that judgment is now challenged in this second appeal.

Mr. Rama Jagadeesan, learned Counsel appearing for the appellant contends that the learned appellate Judge was wrong in setting aside the

order of the trial Court and decreeing the suit subject to the rights of the defendant provided under Act XL of 1971 and he having found that the

defendant is an agriculturist, ought to have dismissed the suit on the ground that the question whether the defendant was entitled to protection under

the Kudiyiruppu Act is a matter that has to be decided only by the Authorised Officer under Act XL of 1971. He invited my attention to a ruling of

this Court in Thangavelu Naicker Vs. Muthukumara Chettiar and Another, .

Per contra., learned Counsel for the respondent invited my attention to an earlier ruling of this Court by another single Judge in Ganesan v.

Madurai Achari (1978) 91 L.W. 6. There a suit was filed for recovery of possession by the plaintiffs who claimed to have purchased the suit

property therein alleging that the defendant had attorned to them and that they have terminated the tenancy of the defendant by notice. But the

defendant therein claimed protection under the Kudiyiruppu Act (XL of 1971) and contended that the jurisdiction of the civil Court has been

ousted. The learned Judge, N.S. Ramaswami, J., referred to the provisions of Acts XXXVIII of 1961 and XL of 1971 and observed:

It is not possible to read these provisions as conferring exclusive jurisdiction on the Authorised Officer to decide the question whether a site is a

Kudiyiruppu or not. The Act nowhere says that such a question is one that has to be decided by the Authorised Officer. As already seen, all that

Section 4 says is that if there is a dispute as to whether an agriculturist or agricultural labourer was occupying a Kudiyiruppu on the 19th June,

1971 (if he had so occupied, the ownership of the site would vest in him), this dispute has to be decided by the Authorised Officer.

The learned Judge further observed:

That does not mean that the question whether the site is a Kudiyiruppu, or not is within his exclusive jurisdiction.... It was already noticed that

under the Act only an owner of a Kudiyiruppu can approach the Authorised Officer to evict the tenant on any one of the grounds contained in

Section 3(3) of the said Act (XXXVIII of 1961) which presupposes that if the owner does not concede that the site is a Kudiyiruppu, he cannot

possibly go to the Authorised Officer.

The learned Judges finally observed:

Therefore, I am quite clear that even under the Kudiyiruppu Ownership Act the question whether a site is a Kudiyiruppu or not is within the

jurisdiction of the civil Court. A decision by the civil Court on that point would be final. If, however, before any civil Court renders a decision on

the question whether the site is a Kudiyiruppu or not, the dispute u/s 4(1) goes before the Authorised Officer, he may incidentally have to decide

whether it is a Kudiyiruppu. But, if the civil Court has given a decision already, that would be binding on the parties.

But in Thangavelu Naicker Vs. Muthukumara Chettiar and Another, , Balasubrahmanyan, J., did not accept in entirety the reason given by N.S.

Ramaswami, J., and observed thus:

It is true that the question whether a given house site is or is not a kudiyiruppu is not within the exclusive jurisdiction of the Authorised Officer or

the District Collector functioning under the Act. But it cannot be said that the question whether a house site is or is not a kudiyiruppu cannot be

decided at all by these functionaries. Under the plain terms of Section 4 of the Act XL of 1971, it is the Authorised Officer alone who is competent

to decide whether an agriculturist or agricultural labourer was occupying a kudiyiruppu on 19th June, 1971, and since it is within his jurisdiction, it

is outside the competence of the civil Courts to decide under the exclusory provisions of Section 23. When Section 4 in clear terms confers

jurisdiction on the Authorised Officer to decide the question whether any agriculturist or agricultural labourer was occupying kudiyiruppu on 19th

June, 1971, it is implicit in the Section that he has also jurisdiction to decide whether the individual concerned is an agriculturist or agricultural

labourer, whether the place under his occupation was a kudiyiruppu or not and whether the occupation was in 19th June, 1971 or not. There is an

obvious inconvenience in holding that the Authorised Officer is competent to decide only one question, namely, whether an agriculturist or

agricultural labourer was occupying the kudiyiruppu on 19th June, 1971, leaving at large other questions between the parties, namely whether he is

an agriculturist or not, whether he is an agricultural labourer or not, whether the land is a kudiyiruppu or not, to be decided by common law Courts.

If all these questions are within the jurisdiction of the Authorised Officer, then, by definition, they must be outside the jurisdiction of the civil Courts,

and as I pointed out, the express terms of Section 23 forbid the civil Courts even to issue an injunction in regard to these matters.

In view of these conflicting judicial pronouncements by two single Judges of this Court. I am of the view that the matter has to be referred to a

Bench of Judges. The papers may be placed before My Lord the Officiating Chief Justice for orders as to posting before a Bench of Judges.

[The second appeal was accordingly posted before a Bench of two Judges. ]

Ramanujam, J.

This second appeal has been posted before us on an order of reference dated 18th March, 1981, by Maheswaran, J., on the ground that there is a

conflict of opinion as between two decisions of this Court Ganesan v. Madurai Achari (1978) 91 L.W. 6. (N.S. Ramaswami, J.), on the one hand

and Thangavelu Naicker Vs. Muthukumara Chettiar and Another, (V. Balasubrahmanyan, J.), on the other, on the scope of Section 23 of Tamil

Nadu Act XL of 1971, hereinafter referred to as ''the Act''. However, after going through the said decisions, we are of the view that there is

actually no conflict between the views expressed by N. Section Ramaswami, J., in Ganesan v. Madurai Achari (1978) 91 L.W. 6 and

Balasubrahmanyan, J., in Thangavelu Naicker Vs. Muthukumara Chettiar and Another, . We would like to refer to the facts of this case before

considering the legal position as enunciated in the said two decisions.

The respondent herein filed a suit for recovery of possession of 4 cents of house-site from the appellant-defendant. The suit was resisted by the

defendant on the ground that he was 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 the ground of want of jurisdiction by the civil Court to pass a decree

for possession. The unsuccessful plaintiff filed appeal A.S. No. 90 of 1977 before the Sub-Court, Mayuram. In that appeal, the, only question

which was taken up for consideration was as to whether the dismissal of the suit on the ground of want of jurisdiction to pass a decree for

possession by the civil Court could be sustained. The lower Appellate Court took the view relying on the decision of N.S. Ramaswami, J., in

Ganesan v. Madurai Achari (1978) 91 L.W. 6, that though the defendant had prima facie shown that he was a tenant under the plaintiff in respect

of the suit site and that he is entitled to the benefits of the Act, still the plaintiff was certainly entitled to a decree for possession subject to the

defendant''s rights, if any, under the said Act. In this view, the lower Appellate Court set aside the dismissal of the suit by the trial Court and

passed a decree for possession, however, making it subject to the rights of the defendant under the Act. Aggrieved against the judgment of the

lower Appellate Court, the defendant has filed the second appeal contending that the lower Appellate Court is in error in passing a decree for

possession after having affirmed the view of the trial Court that the defendant is entitled to the benefits of the Act.

The lower Appellate Court has proceeded on the basis that notwithstanding the decree for possession granted by the civil Court, the matter

could still to be agitated by the defendant before the forums constituted under the Act and that therefore, the defendant will not be prejudiced by

the decree being passed in favour of the plaintiff for possession in the suit. The learned Counsel for the appellant points out that in the decision in

Ganesan v. Madurai Achari (1978) 91 L.W. 6, the facts of the case were entirely different and the principle of that decision has been wrongly

applied to the facts of this case by the lower Appellate Court. The learned Counsel for the appellant then relies on the decision of

Balasubrahmanyan, J., in Thangavelu Naicker Vs. Muthukumara Chettiar and Another, , wherein the learned Judge has specifically hold that in

respect of matters to be decided by the authorities constituted under the Tamil Nadu Act XL of 1971, the civil Court has no jurisdiction in view of

Section 23 of that Act. The learned Counsel for the respondent, however, contends that as per the decision of N.S. Ramaswami, J., in Ganesan v.

Madurai Achari (1978) 91 L.W. 6, the civil Court has jurisdiction to pass a decree for possession even in cases where the defendant is found

entitled to the benefits of the Act, leaving it for the defendant to work out of his rights under the Act. In the light of the said contentions urged on

behalf of the appellant, we have to consider the relevant provisions of the Act and see whether there is any conflict between the decisions referred

to above.

The Tamil Nadu Act XL of 1971 which received the assent of the President on the 20th December, 1971, was enacted for conferring

ownership rights on occupants of kudiyiruppu in the State of Tamil Nadu. Section 3 of the Act provides that any agriculturist or agricultural

labourer who was occupying any kudiyiruppu on the 19th June, 1971, either as tenant or as licensee shall, with effect from the date of the

commencement of the Act, be the owner of such kudiyiruppu arid such kudiyiruppu shall vest in him absolutely free from all encumbrances. Section

4 says that if any dispute arises whether any agriculturist labourer was occupying any kudiyiruppu, on the 19th June, 1971, for purposes of Section

3 of the Act, such dispute shall be decided by the Authorised1 Officer and in deciding the dispute the authorised officer shall follow such

procedure as may be prescribed. Section 5 provides for an appeal against the decision rendered by the authorised officer u/s 4. Section 23 bars

the jurisdiction of the civil Courts in respect of matters which are to be decided by the authorities constituted under the Act. According to that

section, no civil Court shall have jurisdiction in respect of any matter which the Government are, or the authorised officer is, empowered by or

under the Act to determine.

Section 23 of the Act is similar to Section 16-A of the Tamil Nadu Act X of 1969. Section 16-A of the Tamil Nadu Act X of 1969 came up

for consideration before a Full Bench of this Court in Periathambi Goundan Vs. The District Revenue Officer, Coimbatore and Others, . The Full

Bench expressed the view that once the Record Officer or any other authority functioning under the Tamil Nadu Act X of 1969 had come to the

conclusion that the land had been let for cultivation by a tenant, the matters provided for in Section 3(2) of that Act had to be exclusively

determined by such Record Officer or other authority and to that extent, the jurisdiction of the civil Court was barred u/s 16-A of the Act. The Full

Bench also took the view that after Section 16-A had came into force, the natural and normal course for the parties was to go before the

authorities constituted under the Tamil Nadu Act X of 1969 to decide the dispute whether a party was a cultivating tenant or not.

We have to interpret Section 23 of the Act in the light of Full Bench decision referred to above. Since Section 23 bars the jurisdiction of the

civil Court in respect of any matter which the Authorised Officer constituted under the Act has to decide; in this case the question whether any

agriculturist or agricultural labourer is in possession of kudiyiruppu has necessarily to be decided u/s 4 of the Act by the authorised officer. A

conjoint reading of Section 4 and Section 23 of the Act indicates that if an agriculturist or agricultural labourer raises a dispute that he is in

possession of kudiyiruppu on the relevant date, he has to approach the authorised officer concerned for a decision on that point and cannot go

before a civil Court.

However, situations may arise when one party proceeds on the basis that the Act does not apply to a particular piece of land, but the other

party comes forward with a case that he is entitled to the benefits of the Act in relation to that land. Such was the case before N.S. Ramaswami, J.,

in Ganesan v. Madurai Achari (1978) 91 L.W. 6. In that case, the plaintiff came forward with a suit for recovery of possession of the suit property

from the defendant and the defendant contended that he is an agriculturist in possession of the suit land as kudiyiruppu and therefore he cannot be

evicted from the suit land. The learned Judge held that the question whether a person is an agriculturist or an agricultural labourer is u/s 4 left to be

decided by the civil Court though the further question whether such an agriculturist or an agricultural labourer is occupying the kudiyiruppu on the

relevant date and as such entitled to the benefits of the Act has necessarily to go before the authorised officer concerned and the civil Court will

have no jurisdiction to decide that dispute. We are of the view that on the facts, the judgment in Ganesan v. Madurai Achari (1978) 91 L.W. 6,

cannot be construed as holding that in spite of Section 23 of the Act, the civil Court will have, jurisdiction to decide the disputes contemplated by

Section 4. According to the learned Judge, where a plaintiff files a suit for recovery of possession of a certain property presumably on the basis

that the Tamil Nadu Act XL of 1971 does not come into play, and the defendant by way of defence raises the plea that the suit laud is covered by

that Act and therefore he is entitled to the benefit of the said Act, the Court cannot dismiss the suit merely on the basis of the defence unless the

Court finds the defence put forward has been prima facie established. However, the learned Judge in that case directed a decree for possession to

be passed subject to the rights of the defendant under the Act. It is in the light of the said decision the lower Appellate Court had passed a decree

for possession in this case.

Thangavelu Naicker Vs. Muthukumara Chettiar and Another, , was a case where the plaintiff came forward with a suit for injunction asserting

that he is an agriculturist in possession of kudiyiruppu and as such his possession should be protected by the issue of an injunction. Such a suit was

rightly held to be barred by Section 23 of the Act as the plaintiff himself seeks a decision from the civil Court that he is an agriculturist in possession

of kudiyiruppu. On the facts of the respective cases, the said two decisions have to be taken as rightly decided and there is no conflict at all

between them as both of them lay down that the civil Court''s jurisdiction is ousted by Section 23 of the Act in respect of disputes coming u/s 4 of

the Act. However, we are of the view that the direction given by N.S. Ramaswami, J., in Ganesan v. Madurai Achari (1978) 91 L.W. 6, to grant a

decree for possession to the plaintiff subject to the defendant''s rights under the Act has no legal basis. Such a direction cannot be validly, granted

for, there is no provision in the Tamil Nadu Act XL of 1971 similar to Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act,

1960 or Section 3 of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955, wherein it is stated that notwithstanding any decree of Court, the

tenant cannot be evicted from the premises except in accordance with the provisions of the relative Acts. In the absence of any such provision in

the Act there is no method or manner by which the defendant could approach the authorised officer to get over the civil Court''s decree, for

possession and as the decree passed by the civil Court can immediately be put into execution he will be evicted from the kudiyiruppu

notwithstanding his rights under the Act. Further, such a decree, for possession will be inconsistent with or defeat the provisions of the Act which is

intended to confer certain benefit on persons occupying kudiyiruppu.

We are, therefore, of the view that the lower Appellate Court is in error in passing a decree for possession against the defendant which is

capable of being executed straightway without reference to the provisions of the Act. Such a direction is also inconsistent with the findings

rendered by the trial Court and affirmed by the lower Appellate Court that the defendant is entitled to the benefits of the Act. If the civil Court

were to pass a decree for possession, that would be completely defeating the provisions of the said Act. In this view of the matter, we set aside

the, decision of the lower Appellate Court and restore the decision of the trial Court. It is, however, made clear that the plaintiff, if so advised, can

approach the authorities constituted under the Act for any relief as against the defendant under the provisions of the Act.

In the result, the second appeal is allowed. But there will be no order as to costs.