M. Palani Gounder vs S.P. Thangavel Gounder

K.M. Natarajan, J.—The tenant who was unsuccessful before the Revenue Court, Coimbatore, has preferred this revision challenging the

legality and correctness of the order passed by the said court.

The facts which are necessary for the disposal of this revision are briefly as follows: the respondent herein has filed the petition for eviction of the

petitioner herein u/s 3(4)(a) of the Tamil Nadu Cultivating Tenants'' Protection Act (hereinafter referred to as the Act) on the following allegations.

(For convenience sake, the array of parties before the lower court is adopted in this revision). The petitioner before the lower court became

entitled to the property in question by virtue of the settlement deed dated 20-8-1976. He, after exchange of notice, filed a suit for possession and

mesne profits in O.S. No. 493 of 1983 on the file of the Sub-Court, Udumalpet, against the respondent, and the same was later transferred to

District Munsif Court on the ground that he unlawfully trespassed into the suit property. The said suit was resisted by the respondent-tenant on the

ground that he is a tenant of the suit property and that the alleged trespass is false. Though the suit was decreed by the trial court, the same was

reversed on appeal by the Sub-Court, Udumalpet in A.S. No. 30 of 1983 and the same was confirmed in S.A. No. 2276 of 1983. By virtue of

the above proceedings, the respondent was recognized as tenant of the petition mentioned property. It is alleged that the respondent, though

enjoyed the property, had not paid arrears of lease. Though the respondent contended that the lease amount was only Rs. 500 per annum and the

same was paid to the settler, the petitioner denied the said quantum of rent and payment and he claimed arrears of rent for nine years from the year

1976 to the period ending with Purattasi 1985 at the rate of Rs. 5,000 per annum, on the ground that the income from the petition mentioned

property would be Rs. 10,000.

The said application was resisted by the respondent who would contend that his case that he was a tenant of the property and the annual rent

was Rs. 500 was upheld upto the High Court, even though the petitioner-landlord contended that there was no tenancy and the occupation of the

respondent was unlawful. It was submitted that having contended that the respondent surrendered possession to Sellammal even in the year 1974

and after settlement, he got possession, and that he is in possession he has filed this petition. In any event, the rate of lease amount claimed at Rs.

5000 is not tenable. The claim that he was in arrears from 1976 is not correct as the respondent has paid the lease amount upto the end of

Purattasi 1978 to Sellammal. The new case of waram put forward by the petitioner is not true and tenable. Lastly, it was submitted that the claim

put forward by the petitioner for rent for more than three years prior to the date of filing of the petition is barred by limitations, hence he prayed for

dismissal of the petition.

The petitioner-landlord examined himself as P.W.1, and on the side of the respondent, he examined himself as R.W.1, and Ex. E-1 was

marked.

The Special Deputy Collector (Revenue Court), Coimbatore for the reasons stated in his judgment, fixed the annual rent at Rs. 2,000 and

directed the respondent-tenant to pay a sum of Rs. 18,500 on or before 31-10-1987 for the period commencing from 1977 to 1985 at the rate of

Rs. 2,000 and for falsi 1396 (1986 year) Rs. 6,000 after deducting the payment of Rs. 5.500 paid during the pendency of the proceedings.

Aggrieved by the same, this revision is filed. Learned Counsel for the revision-petitioner, Mr. P. Sathasivam, mainly contended that in view of

the Proviso to Section 3(4) of the Act which was inserted by virtue of Act 21 of 1972 the claim of the respondent-landlord for more than three

years is barred by limitation and the decision relied on by the Special Revenue Court, namely, Palaniswamy Gurukkal v. Kandappa Gounder, 80

L.W. 305 has been rendered prior to the introduction of the Proviso to Section 3(4) of the Act and the reliance on the said decision led to the

miscarriage of justice. Further, without prejudice to the contentions, he has paid the entire admitted arrears from 20-8-1986 for 11 years to the

tune of Rs. 5,500 on 18-5-1987 in two instalments, that there is no arrears and the order of the court below in arbitrarily fixing the quantum at Rs.

2,000 is also unsustainable. Hence the order of the Revenue Court is liable to be set aside.

On the other hand, the learned Counsel for the respondent submitted that even though the proviso was inserted to Section 3(4) of the Act and

the claim is barred by limitation ,the liability to pay the rent is not extinguished and hence the order cannot be said to be in any way illegal. Further,

in view of the income from the property, the quantum of rent fixed by the Revenue Court at Rs. 2,000 cannot be said to be exorbitant.

Now, the questions for consideration in this revision are whether the order passed by the Court below directing the tenant-respondent to pay

arrears from 1977 to 1986 is tenable and whether the quantum of Rs. 2,000 fixed by the lower court is sustainable in the circumstances of the

case.

Under the impugned order, the Special Deputy Collector (Revenue Court), Coimbatore, directed the revision-petitioner herein, who is the

respondent-tenant before the lower court, to pay the arrears of rent from the year 1977 to 1986 for ten years, at the rate of Rs. 2,000 per annum,

for the period of 1977 to 1985 amounting to Rs. 18,000 and at Rs. 6,000 for the year 1986 as fair rent fixed by him on the date of the order in

F.R.P. No. 1 of 1986. It is to be stated that the claim made by the respondent, who is the petitioner before the lower court, is only for nine years

ending with Purattasi 1985. Learned Counsel for the revision-petitioner mainly contended that in view of the Proviso which was inserted by Act 21

of 1972 to Section 3(4)(V) of the Act the rent Court should not direct the cultivating tenant to deposit such arrears of rent as have become time

barred under any law of limitation for the time being in force. Under the Law of Limitation, any rent, accrued three years prior to the filing of the

suit has become barred and it is not disputed. It is worthwhile to quote the above said proviso, which was inserted by act 21 of 1972, which reads

as follows:

Provided that the Revenue Divisional Officer shall not direct the cultivating tenant to deposit such arrears of rent as have become time barred under

any law of limitation for the time being in force.

It is clear from the above proviso that the Revenue Court is not empowered to direct the tenant to deposit the time barred arrears or rent. The

decision relied on by the Revenue Court in para 9, as rightly contended by the learned Counsel for the revision -Petitioner, is not applicable to the

instant case, as the decision in Palaniswamy Gurukkal v. Kandappa Gounder, 80 L.W. 305, was rendered prior to the insertion of the said

Proviso. In view of the specific proviso inserted in the very same Act, no reliance could be placed on the earlier decision prior to the enactment of

the Act 21 of 1972. Similarly, the subsequent enactment of Act 21 of 1972, by which the provision was inserted, was not brought to the notice of

Sathiadav, J. while passing the order in Attukaran alias Sengoda Gounder and Ors. v. Baskaran and Ors. (C.R.P No. 925 of 1987) and when the

learned Judge considered the Division bence decision in Palaniswamy Gurukkal v. kandappa Gounder, 80 L.W. 305 in disposing of the said

petition. Hence, in view of the later introduction of the Proviso which was extracted above, the order passed by the Revenue Court directing the

revision-petitioner-tenant to pay arrears from 1977 till 1986 is not legally tenable. It is to be noted that even the petitioner (landlord) has not

claimed the rent for the year 1986 and hence the direction given by the Court below is in excess of the relief prayed for in the main petition. The

petition was filed on 17-6-1986. Hence the petitioner is entitled to claim rent only for a period of three years prior to the date of the said petition.

Even here, the relief prayed for by the petitioner, as already stated, is for the period ending with Purattasi 1985, and hence if at all the petitioner is

entitled to claim arrears from 17-6-1983 to September, 1985 only.

It is contended by the learned Counsel for the respondent (landlord) that even though the arrears of rent is barred by the law of limitation, still

the liability is not wiped out and as such there is nothing illegal in the direction given by the Revenue Court. In this connection, he relied on the

decision of the Supreme Court reported in Bombay Dyeing and Manufacturing Co. Ltd. Vs. The State of Bombay and Others, . That is a case

arising out of the Bombay Labour Welfare Fund Act of 1953. There while considering the definition of ""unpaid accumulation"" regarding the wages,

it was held:

Now, it is the settled law of this country that the statute of limitation only bars the remedy, but does not extinguish the debt.

Their Lordships also considered that even though the debt is barred u/s 25(3) of the Contract Act, a barred debt is good consideration for a fresh

promise to pay the amount, and they have also set out cases in which the time barred debts can be enforced. That decision is not at all applicable

to the facts of this case, as here we are concerned only with the authority of the Revenue Court to direct the cultivating tenant to deposit the time

barred arrears. In view of the specific provision incorporated in the very Act under which it has been specifically provided that the Revenue

Divisional Officer should not direct the tenant to deposit arrears of rent which has become time barred under any law of limitation, he is not entitled

to do so. If any remedy is open under any other law on the basis of the time barred arrears, it is open to the respondent to proceed. Now, we are

concerned with the provision of Section 3(4)(a) under which this petition was filed. In view of the specific and unambiguous provision in the Act,

the order passed by the Revenue Court directing the tenant to deposit the time barred debt is illegal and contrary to the very proviso to Section

3(4)(b) of the Act.

It is now contended by the learned Counsel for the respondent for the first time in this revision that by virtue of various enactments, the

recovery was stayed and during the period for which the recovery was stayed, the respondent is entitled to ask for the rent. It is only under the

Tamil Nadu Cultivating Tenants (Protection from Eviction) Act (1983), (Act 26 of 1983), u/s 4, it was enacted that all applications under the

Tenants Protection Act for eviction of the cultivating tenant on the ground that he is in arrears of rent to the landlord pending before the Revenue

Divisional Officer shall stand stayed. Section 3 is also to the effect that no application under the said act for eviction can be passed in respect of the

rent payable to the landlord, and under the ""Explanation"", the ''rent'' means the rent accrued due for the fasli year ending with 30-6-1983 for any

previous fasli year. The period covered under the Act is from 1.7.1982 to 15.1.1984. Beyond that, there is no other Act brought to the notice of

this Court since the other ordinance and enactment was in respect of payment of arrears in instalments as per the scaling down provided therein

and that there is no stay of filing an application or exclusion of the period of limitation. Even if that act was taken into consideration, the petitioner-

landlord is entitled to 1-1/2 years and he can claim rent from 1-7-1982 and not before that. Hence, even giving effect to the above provision in act

26 of 1983, the petitioner-landlord is entitled to claim rent only from 1-7-1982 and not before that. The first point is answered accordingly.

As regards the second point regarding the quantum of rent, it is seen from the very petition filed by the landlord that his contention in the civil

proceedings, which was instituted by him in O.S. No. 493 of 1979 is that the revision-petitioner was in unauthorised possession and that he

originally surrendered possession in 1971 and that he is not a tenant. On the other hand, the contention of the revision-petitioner is that he has been

in occupation of the premises in the capacity as tenant and the annual rent is Rs. 500. His contention was upheld by the sub-Court Udumalpet in

A.S. No. 30 of 1983 and the High Court Madras, in SA. No. 2276 of 1983. It is only thereafter the eviction petition has been filed and another

petition for fixation of fair rent. The claim of rent at the rate of Rs. 5,000 per annum was made only on the basis of the alleged income and not on

the basis of any contract of lease. There is absolutely nothing to show that the tenant was let in possession as a waramdar. Ex-R1, exhibited on the

side of the respondent-tenant, is the certified copy of the deposition of Sellammal, who is the settlor of the petitioner-landlord and who was the

previous owner of the property. While deposing in connection with F.R.P. No. 4 of 1974, in respect of her other lands, she has referred about the

rate of rent of this land at Rs. 500. Even otherwise there is absolutely nothing to hold that the tenant was cultivating the property as waramdar and

has been paying the share of the yield as claimed by the landlord.

The Revenue Court relied on the direction given by the High Court in C.M.P. No. 17962 of 1983 wherein the tenant was directed to deposit

Rs. 15,000 and fixed the annual rent at Rs. 2,000 on the basis of the said order. On going through the said order, I find that the landlord filed the

petition for appointment of a commissioner to harvest the crops standing in the suit property, and the High Court while passing the order in the said

miscellaneous petition directed the respondent who is the tenant to deposit Rs. 15,000 in two instalments. It is seen from the affidavit filed by the

landlord in support of the said petition that the seller Sellammal let out the property to the revision-petitioner herein for a period of two years, 1972

to 1974, that thereafter he surrendered possession in Purattasi 1974, that by virtue of the settlement deed, the respondent-landlord herein was

placed in possession, that the revision-petitioner herein trespassed into the property in July 7, 1978 and took forcible possession, that in the event

of his success in the appeal he is entitled to claim damages for unlawful use and occupation, and that even if the landlord succeeds in the appeal, it

is very difficult to realise the amount from the revision-petitioner herein. It is to be noted that there is no finding that the lease amount was Rs.

15,000 or the income was Rs. 15,000 from the said land. The said interlocutory order was passed only as a temporary measure pending disposal

of the appeal and in view of the dismissal of the appeal, that cannot now be relied on for fixing the rent at Rs. 2,000. The landlord has filed a

petition for fixation a fair rent only in 1986. As such, the finding rendered by the Revenue Court fixing the rent at Rs. 2,000 is without any basis and

acceptable evidence. But, the said finding is based only on presumptions and inferences which are not supported by legal evidence. In view of the

specific case of the tenant that the rate of rent is only Rs. 500, that he has been in possession only as a tenant and that fact has been upheld by the

High Court, the respondent-Landlord is not entitled to claim more than Rs. 500 till the fair rent is fixed. In the instant case, admittedly, the revision-

petitioner tenant has paid a sum of Rs. 5,500 representing the arrears of rent for 11 years from 1976 to 1987 on 18-5-1987 and 18-6-1987 in

two instalments. Hence, in view of the above payment, there is nothing due from the revision-petitioner to the respondent. It is, however, stated

that the Revenue Court has now on the date of the impugned order fixed fair rent at Rs. 6,000 in F.R.P. No. 1 of 1986 dated 29-9-1987 and the

matter is now pending in appeal before the Civil Court. It is open to the respondent-landlord to claim rent from the year 1986 at the fair rent rate

fixed finally by the authorities referred to under Act. This order will not preclude him from claiming the rent at the said rate from the year 1986 by

taking necessary proceedings. The quantum of rent fixed by the Court below is unsustainable. In view of the findings on points 1 and 2, the

revision-petition is allowed, the order passed by the court below is set aside and the petition filed by the respondent-landlord is dismissed.

However, in the circumstances of the case, there will be no order as to costs.