M.S. Ramachandra Sastrigal vs Kuppuswami Vanniar

Jagadisan, J.—O. S. No. 135 of 1956 on the file of the District Munsif''s Court, Tiruvarur is a suit in which the plaintiff prays for a permanent injunction restraining the defendant from interfering with his possession and enjoyment of the suit lands, of an extent of 3 acres 66 cents, in the village of Mudikondan, Nannilam Taluk, Tanjore Dt. In the fasli year 1955-56 the plaintiff let the lands to the defendant for cultivation on "waram" basis for that year. After the harvest of the lands in 1956 according to the plaintiff he took possession of the lands in February 1956 intending to cultivate the lands himself personally in future. Alleging that the defendant interfered with his possession and enjoyment of the suit lands, after having voluntarily surrendered the lands, the plaintiff instituted the suit referred to above for a permanent injunction. The plaintiff filed I. A. No. 569 of 1956 for a temporary injunction restraining the defendant from interfering with his possession of the suit lands during the pendency of the suit. The defendant contested the application but the learned District Munsif of Tiruvarur by his order dated 5th July 1956 granted the temporary injunction as prayed for by the plaintiff. At the time when the suit was instituted and the order for temporary injunction was passed the relation of landlord and tenant in respect of agricultural lands in the district of Tanjore was governed by the Tanjore Tenants and Pannaiyals Projection Act, Madras Act XIV of 1952. That Act was not a State-wide legislation but was confined in operation only to the district of Tanjore though the State had the power to extend it to other territories as well. The Madras Cultivating Tenants Protection Act XXV of 1955, received the assent of the President on 24th September 1955 and was published in the Fort St. George Gazette on 27th September 1955. But it applied to areas not covered by the Tanjore Tenants and Pannaiyals Protection Act. Then came Madras Act XIV of 1956 which amended the Madras Act XXV of 1955 extending the operation of the Madras Act XXV of 1955 to the territories previously covered by Madras Act XIV of 1952. This amending Act received the assent of the President on 29th September 1956 and was published in the Fort St. George Gazette on 1st October 1956. The defendant in O. S. No. 135 of 1956 on the file of the District Munsif''s Court, Tiruvarur, filed I. A. No. 1162 of 1956 invoking the aid of S. 6 A of Madras Act XXV of 1955 and prayed for transfer of the suit to the file of the Revenue Divisional Officer, Nagapattinam. He claimed that he was a cultivating tenant entitled to the benefits of Madras Act XXV of 1955 and that therefore the transfer of the suit to the file of the Revenue Divisional Officer, Nagapattinam should be ordered.

The plaintiff resisted this application but the learned District Munsif ordered the transfer and hence this civil revision petition has been preferred by the plaintiff challenging the correctness of the said order.

The civil revision petition was heard in the first instance by Panchapakesa Ayyar J. who directed the matter to be posted before a Division Bench observing that "an important question of law affecting thousands of landlords and ryots in Tanjore District was involved."

The learned District Munsif of Tiruvarur was of the opinion that though Madras Act XXV of 1955 came into operation in the Tanjore district where the suit lands are situated only on 29th September 1956 by reason of the amending Act XIV of 1956 the status of the defendant, whether he is a cultivating tenant or not, had to be determined as if the Act XXV of 1955 governed the relationship of the parties even prior to the coming into force of the amending Act. The defendant having been restrained by an order of temporary injunction passed on 5th July 1956 from interfering with the possession and enjoyment of the suit lands by the plaintiff was certainly out of possession at least from that date. On 29th September 1956, when the amending Act came into force by reason of the operation of the injunction order the defendant must be deemed to be not in possession of the suit lands. Whether the defendant was in possession of the suit lands on the date of the institution of the suit will have to be determined only in the suit on the order for temporary injunction granted in favour of the plaintiff cannot certainly conclude the matter. The learned District Munsif is wrong in holding that the defendant is a cultivating tenant because be was in possession of the suit lands as a waramdar for the fasli year 1955-56 overlooking the plea of the plaintiff that there was an actual surrender of possession of the lands in favour of the defendant sometime in February 1956. We are not assuming that the plaintiff''s case of alleged surrender of possession by the defendant is true. We are clearly of opinion that the finding of the learned District Munsif that the defendant was a cultivating tenant is vitiated because he wrongly assumed that the status of the defendant as a cultivating tenant can be determined on the facts and circumstances which existed prior to the coming into force of the amending Act XIV of 1956 and which ceased to exist on the date when the amending Act came into force and because he failed to consider the plea of the plaintiff that there was a voluntary surrender of possession of lands in his favour as early as February 1956. S. 3 Cl. (2) Explanation (2) is as follows :

In relation to areas where the Tanjore Tenants and Pannaiyals Protection Act, 1952 (Madras Act XIV of 1952) and to areas where the South Kanara Cultivating Tenants Protection Act 1954 (Madras Act VI of 1954) were in force immediately before the date of coming into force of the Madras Cultivating Tenants Protection (Amendment) Act, 1956, the expression ''commencement of this Act'' whenever it occurs in this Act shall be construed as referring to the date aforesaid.

This provision makes it clear that in respect of the Revenue District of Tanjore, Madras Act XXV of 1955 came into operation only on 29th September 1956 the date when the amending Act of 1956 came into force. There is no warrant for giving retrospective operation to Madras Act XXV of 1955 to the area in Revenue District of Tanjore as it cannot be that both Madras Act XIV of 1952 and Madras Act XXV of 1955 were in concurrent operation in regard to that territory.

In Kamalambal v. Krishnaswami Vandayar (1959) 1 M.L.J. 105=71 L.W. 686, Ramachandra Iyer, J., has taken the same view as expressed by us. At page 106 the learned Judge observed thus:

By reason of this Explanation the tenant would be entitled to claim restoration of possession if on the date of coming into force of the Madras Act XIV of 1956 or thereafter he was dispossessed but as stated already he was dispossessed on 6th September 1956, that is sometime before coming into operation of the Madras Act XXV of 1955 as amended by Act XIV of 1956 in regard to areas to which Madras Act XIV of 1952 applied. Madras Act XIV of 1956 received the assent of the President on 29th September 1956. It is therefore clear that the tenant-respondent cannot claim the benefit of S. 4 (5) of Act XXV of 1955. Mr. Venkataraman on behalf of the respondent argued that the words in the explanation, namely, ''the expression commencement of this Act shall be construed as referred to the date aforesaid'' would only refer to the date of coming into force of the Madras Act XXV of 1955 in its original form. I think this contention is not well founded. A reading of Explanation II clearly shows that the ''date aforesaid'' refers only to the date when the Act XIV of 1956 came into force.

With respect, we agree with this observation.

The question which the learned District Munsif had to determine was whether the defendant was a cultivating tenant entitled to the benefits of Madras Act XXV of 1955 on 29th September 1956 the date on which he, the tenant in Tanjore District, obtained the benefit of Madras Act XXV of 1955 by reason of the amending Act XIV of 1956. The learned District Munsif failed to determine this question, and his finding that the defendant was a cultivating tenant cannot therefore be upheld.

The plaintiff claims that there was a voluntary surrender of possession of the suit lands in his favour, the defendant having given up possession in response to his request to have the lands under his personal pannai cultivation. S. 4 of Madras Act XXV of 1955 enables a dispossessed tenant in certain circumstances to obtain restoration of possession. S. 4 (1) provides that every cultivating tenant who was in possession of any land on 1st December 1953 and who was not in possession thereof at the commencement of this Act shall on application to the Revenue Divisional Officer be entitled to be restored to such possession. S. 4(5) provides that any cultivating tenant who after the commencement of this Act has been evicted except under the provisions of Sub-S. 4 of S. 3 shall be entitled to apply to the Revenue Divisional Officer within two months from the date of such eviction or within two months from the date of coming into force of the Madras Cultivating Tenants Protection (Amendment) Act, 1956, for restoration to him of the possession of the lands from which he was evicted. On the facts of the case placed before us the present case does not appear to be governed by S. 4(1) of the Act. If the defendant were to claim the benefit of restoration under S. 4(5) of the Act, then he must prove eviction. If in fact the defendant had surrendered possession to the plaintiff he cannot claim to have been evicted.

In Kuppammal v. Vallingiri Gounden (1957) 1 M.L.J. 293=70 L.W. 11, Rajagopala Aiyangar J. as he then was, observed thus at p. 298:

We consider that '' eviction '' as used in S. 3 (1) and S. 4 (2) is an eviction of this character and that in cases where the tenant surrenders possession voluntarily without being compelled to do so by any act or conduct on the part of the land of the landlord there is no eviction. It is not our purpose to define exhaustively the acts or conduct on the part of a landlord which constitute eviction. It is sufficient for our purpose to say that there would be no eviction when a tenant voluntarily and willingly surrenders possession of the land to the landlord. So far as the present case is concerned, the admitted facts and the finding of the Revenue Divisional Officer are that the surrender, was for consideration and was a result of a bargain freely and voluntarily entered into between the parties. In the circumstances there was no eviction of the first respondent from the holding which he formerly held.

The learned District Munsif has also failed to determine the question whether there was in fact a voluntary surrender of possession of the suit lands by the defendant in favour of the plaintiff. The determination of this question has a great bearing on the issue whether the defendant was a cultivating tenant or not when the Amending Act XIV of 1956 came into force. The failure of the learned District Munsif to advert to this vital question has also vitiated his finding that the defendant is a cultivating tenant.

The learned District Munsif has found as a fact that the defendant is cultivating nanja lands of 5 acres 76 cents as owner and more than 5 acres 78 cents as lessee under one Swaminatha Iyer and Krishnamurthi Iyer. On this finding which has not been challenged before us by the learned Counsel appearing for the respondent, it is obvious that the defendant is not a cultivating tenant entitled to restoration of possession of the suit lands in view of the explanation to S. 4 of the Act. S. 4 (2) is as follows:

Nothing in Sub-S. (1) shall be deemed to entitle any such cultivating tenant to restoration of possession (1) if on the day this Act comes into force, he in possession, either as owner or as tenant or as both of land exceeding the extent specified in the Explanation below or if he has been assessed to any sates tax, profession tax or income tax under the respective laws relating to the levy of such taxes during 1953-54 or 1954-45 or......

The explanation is: " The extent referred to in Cls. (i) to (iii) above is 6-2/3 acres of wet land."

The total holding of the defendant both as owner and as lessee as found by the learned District Munsif comes to more than 11 acres. Despite this finding the learned District Munsif was of the opinion that the defendant was entitled to the benefits of the Act as a cultivating tenant and observed thus:

Therefore the objection of the respondent that the petitioner cultivates more than 6 and 2/3 acres of nanja and hence not entitled to recovery of possession will not hold good as there is no question of recovery of possession by the defendants in this suit and the only question between the plaintiff and the defendant in this suit is who is in possession.

We are wholly unable to appreciate the logic or soundness of this reasoning.

The defendant in the suit has called in aid S. 6-A of the Act which is as fellows:

If in any suit before any Court for possession of, or injunction in relation to, any land it is proved by affidavit or otherwise that the defendant is a cultivating tenant entitled to the benefits of this Act, the Court shall not proceed with the trial of the suit but shall transfer it to the Revenue Divisional Officer, who shall thereupon deal with and dispose of it as though it were an application under this Act and all the provisions of this Act shall apply to such an application and the applicant.

This section has been considered by this Court on several occasions. In Veluchami Naicker and Others Vs. M. Mouna Gurusami Naicker (deceased) and Others, it was held by a Division Bench consisting of the learned Chief Justice and Panchapakesa Aiyar J. that S. 6-A of the Act governed suits pending in a civil Court at the time that provision was enacted. The learned Chief Justice at p. 629 observed as follows:

If the Court decided that the defendants are cultivating tenants entitled to the benefits of the Act, then it shall not proceed with the further trial of the suit but shall transfer it to the Revenue Divisional Officer. If, however, the Court comes to the conclusion that the defendants are not cultivating tenants, then it can proceed with the trial and pass such decree as it may deem fit.

The suit out of which the appeal before the Division Bench arose was one for recovery of possession in which the defendants claimed to be cultivating tenants not liable to be evicted except by the Revenue Divisional Officer in due conformity with the provisions of the Madras Act XXV of 1955. The jurisdiction to evict a cultivating tenant is vested only in the Revenue Divisional Officer to the exclusion of the civil Court. The observation of the Division Bench that the suit should be transferred to the Revenue Divisional Officer if it were to be found that the defendants in that case were cultivating tenants was made because of the lack of the jurisdiction in civil Court to evict a cultivating tenant. The decision in S. Ratnasami Mudaliar Vs. Ponnammal and Others, followed the above decision.

In V. Kuppuswami and Others Vs. Sri Subramaniaswami Devastahanam and Others, it was held by Balakrishna Aiyar, J. that having regard to the scheme of the Act and the language of S. 6-A of the Act, before a civil Court can transfer a proceeding under that section it must be satisfied that the tenant is not only a cultivating tenant as defined by the Act but he should also be entitled to some benefit or other under the Act. At page 209 the learned Judge observed thus :

Therefore before the civil Court can transfer a proceeding under S. 6-A to the Revenue Court it must be satisfied that the tenant is not merely a cultivating tenant as defined in the Act, but also entitled to some benefit or other under the Act.

The learned Judge expressed the view that if both these contentions are not satisfied no question of any transfer under S. 6-A of the Act will arise.

In Syed Sahib Vs. Angamuthu Mooppan, Panchapakesa Ayyar, J. had to deal with the scope and ambit of S. 6-A of the Act. In that case the suit was filed by one Syed Sahib on the file of the District Munsif''s Court, Tiruchirapalli, for an injunction res training the defendant from interfering with his possession and enjoyment of the suit lands on the ground that the defendant was a mere trespasser attempting to take the law into his own hands. An application was filed by the defendant under S. 6-A of the Act, praying for transfer of the suit to the file of the Revenue Divisional Officer, Tiruchirapalli, The civil Court held that prima facie the defendant was a cultivating tenant and directed the transfer of the suit to the Revenue Court. The Revenue Court also held that the defendant in the suit was a cultivating tenant after the matter was transferred to its file. It is this order of the Revenue Court which formed the subject matter of the civil revision petition heard by Panchapakesa Ayyar, J. The learned Judge observed that the finding of the civil Court under S. 6-A of the Act that the defendant was a cultivating tenant entitled to the benefit of the Act was only a prima facie finding and can never be a final finding binding on Revenue Court. As stated already the suit out of which the proceedings culminated in the civil revision petition was one purely for injunction. It was contended before the learned Judge that there was no petition by the alleged tenant for restoration of possession of the holding to him and that therefore there was no scope for the Revenue Court to decide the question whether the tenant was entitled to restoration of possession on the assumption that there was some such petition before the Revenue Court. This contention was repelled by the learned Judge in the following words:

Section 6-A says that on the transfer of the suit by the civil Court to the Revenue Court, the Divisional Officer shall deal with the matter and dispose of it, as though it were an application under Act XIV of 1956, No doubt, as Mr. Ramachandra Iyer pointed out, this is a legal fiction, but legal fictions, are well known to law, and are, in fact, a kind of hidden soul in the law making for progress. Many Acts contain such legal fictions. There is no question of their validity, or as the sovereign legislature, or any other legislature to the extent of its competence, can legislate with such fictions added on provided there is no discrimination under Art. 14 of the Constitution, or any other invalidating factor none of which exist here. So, the moment the District Munsif, Tiruchirapalli, transferred the suit for injunction, under S. 6-A to the Revenue Divisional Officer, the suit automatically became a petition for restoration of possession by the tenant though in fact the tenant had not filed any such petition.

This decision was followed by the same learned Judge in a subsequent decision of his, Subbaratnam Iyer Vs. Pattavarthi Moopan, Therein the learned Judge observed as follows:

The lower Court never held the respondent to be a cultivating tenant. It merely presumed from the evidence on record, that the respondent might turn out to be a cultivating tenant, and that to all that S. 6-A requires for entitling or requiring a civil Court to transfer a suit to the Revenue Court where the question whether the person claiming to be a cultivating tenant was really a cultivating tenant would be gone into in full and finally decided, and a binding finding given thereon." I have held in a similar case that a civil Court when transferring a suit like this is only required to satisfy itself prima facie that the defendant is a cultivating tenant and that it need not give a finding that he is really a cultivating tenant, it has no jurisdiction to give such a final finding, as only a Revenue Court can give it......It cannot adopt the prima facie conclusion of a civil Court when transferring the suit under S. 6-A. though it may agree with the prima facie conclusion for the reason given by it in its own finding that the defendant is a cultivating tenant.

In Mohamed Karimuddin Sahib v. Mohambara Naicker C.C.C.A. No. 149 1955 and C.R.P. No. 464 of 1959, Ramachandra Iyer J. had occasion to consider the question of applicability of S. 6-A of the Act in a suit for relief not merely for recovery of possession but also for recovery of arrears of rent or damages for use and occupation. The two decisions of Panchapakesa Ayyar J. referred to above were cited before him. Ramachandra Iyer J. observed thus:

The learned Judge held in the two cases that the civil Court should come only to a prima facie conclusion on the question whether the defendant was a cultivating tenant or not and that the final decision on that issue rested with the revenue Court. With great respect to the learned Judge I cannot agree.

Ramachandra Iyer J. further observed thus:

Therefore before an order for transfer is made the Court should find that it is incompetent to give the reliefs sought by reason of the Act.

Earlier the learned Judge observed thus;

But what S. 6-A. contemplates is the transfer of the suit and not the reference of any issue, that is, that relating to possession.

We are of opinion that the view taken by Panchapakesa Ayyar J. in Syed Sahib v. Angamuthu Moopan (1955) 1 M.L.J. 232 = 71 L.W. 225, and Subbaratna Iyer v. Pattavarthi Moopan (1). is not correct. With great respect to the learned Judges, we are unable to subscribe to the view that a prima facie finding of the civil Court holding that a party to the suit is a cultivating tenant can deprive the civil Court of its jurisdiction to try the suit making it incumbent on that Court to transfer the suit to the Revenue Court.

If the view of the learned Judge as expressed by him in those decisions were to prevail it would lead to anomalous. What is to happen if the Revenue Court were to hold contrary to the prima facie finding of the civil Court that the tenant is not a cultivating tenant entitled to the benefit of the Act? There is no machinery under the Act for the Revenue Divisional Officer to re-transfer the proceeding to the file of the civil Court. Further civil Court cannot lose its jurisdiction to try a suit competently laid before it on tentative conclusions or prima facie findings. Before the civil Court decides not to try a suit it must reach definite conclusion and must record a comprehensive finding that it has no jurisdiction to deal with the matter. There cannot of course be a summary enquiry by a civil Court on such a vital issue as that of jurisdiction to try the suit.

With great respect to Panchapakesa Ayyar J. we do not also agree with the view expressed by him that a simple suit for injunction laid before the civil Court can become automatically converted into a petition for restoration for possession by the tenant, once the suit is transferred to the file of the Revenue Divisional Officer on a tentative rinding that the defendant is a cultivating tenant.

Under S. 4 (3) of the Act every application to a Revenue Divisional Officer under Sub-S. (1) for restoration of possession has to be made within 30 days from the commencement of the Act. S. 4 (5) of the Act prescribes that a cultivating tenant who has been evicted after the commencement of the Act should apply to the Revenue Divisional Officer within two months from the date of eviction or within two months from the date of coming into force of the Madras Cultivating Tenants Protection (Amendment) Act of 1956 for restoration to him of the possession of the lands. The Act thus prescribes the period of limitation for application for restoration of possession. In P. Subbiah Mudaliar and Others Vs. Pakkiri Pandaram, , the learned Chief Justice has observed that the lapse of the period of limitation prescribed for restoration of possession under the Act creates a vested right in favour of the landlord against any claim for restoration of possession. There cannot therefore be an automatic conversion of a suit for injunction in the civil Court into an application for restoration of possession before the Revenue Court which may have the effect of nullifying the vested rights accrued in favour of the landlord by reason of the cultivating tenant having failed to take the proper steps for restoration as prescribed by the statute.

It is of course open to the legislature to introduce a legal fiction. But neither the civil Court nor the Revenue Divisional Officer can import a legal fiction so as to grant a relief to a party who is not asking for such a relief.

The plain words of S. 6-A of the Act clearly indicate the scope of that provision. The suit which is sought to be transferred must be one for possession or injunction in relation to any land. The defendant in such a suit can, if he is a cultivating tenant entitled to the benefits of the Act, have the trial of the suit before the civil Court interrupted and have the suit transferred to the Revenue Divisional Officer. On a transfer being ordered in terms of that section the Revenue Divisional Officer shall deal with and dispose of the suit as though it were an application under the Act. Before the section can operate three conditions must be fulfilled. The first is that the defendant must be a cultivating tenant; the second is that he must be entitled to the benefits of the Act; the third is that he must on a transfer of the proceeding to the Revenue Divisional Officer be in a position to obtain one or other of the statutory reliefs provided for in his favour under the Act. Without the concurrence of these three conditions no transfer should be ordered by the civil Court under the provisions of S. 6-A of the Act.

In a simple suit for an injunction laid in a civil Court, for restraining the defendant in the suit from interfering with the plaintiff''s possession and enjoyment of the land, the defendant even if he were to be a cultivating tenant entitled to the benefits of the Act cannot gain anything by merely having the forum of adjudication being shifted from the civil Court to the Revenue Court. It is obvious that a Revenue Court cannot grant any injunction. The Revenue Court has no jurisdiction to consider the question whether an injunction can or cannot be granted. In Ramaswami Rajah v. Ellappa Gounder (1960) 2 M. L. J. 26. (Short Notes) C. R. P. No. 936 of 1960 same case since reported in 73 L. W. 747 = I. L. R. 1960 Mad. 1173 decided by Ramachandra Iyer, J. the extract as per the report of the Short Notes is as follows :

An injunction which is a preventive remedy, is granted by Courts under the specific provisions of the Civil Procedure Code. There is no inherent power in any Tribunal to grant an injunction unless the jurisdiction to grant it is expressly conferred by statute and such a power cannot be assumed by implication...... Hence a Revenue Divisional Officer would have no jurisdiction to grant an injunction restraining a landlord from entering his properly. The tenant has always got his remedy in such cases to approach the civil Courts for relief by way of injunction.

In the present case we are not informed that the defendant in the suit has preferred any application before the Revenue Divisional Officer for restoration of possession. Whether it will be open to him to prefer any such application in future if he has not already preferred one is a matter on which we need not express any opinion. In any view of the matter we do not see the necessity for a transfer of the suit from the file of the civil Court to that of the Revenue Court. There are only three possibilities arising on the pleadings of the parties in the case. Firstly the plaintiff in the suit might have been in possession of the suit lands on the date of the suit and the defendant may not be a cultivating tenant entitled to the benefits of the Act. If this is the real position it is obvious that an injunction must issue in favour of the plaintiff. In fact even the terms of S. 6-A cannot operate and the suit cannot be transferred. Secondly the plaintiff might have been in possession of the suit lands on the date of the suit but the defendant might be a cultivating tenant entitled to the benefits of the Act. In this case also the civil Court will have to grant an injunction but this decree for injunction will however be subject to such order as the Revenue Divisional Officer may pass by way of restoration of possession or otherwise at the instance of the tenant and as a result of appropriate proceedings which he might take under the Act. The third possibility is that the plaintiff might not have been in possession of the suit lands on the date of the suit. In such a case whether the defendant is a cultivating tenant entitled to the benefits of the Act or not the suit must fail. We are therefore of opinion that taking any view of the matter S. 6-A of the Act cannot properly govern the case. We have held already that the finding of the learned District Munsif even on the question whether the defendant is a cultivating tenant entitled to the benefits of the Act or not is erroneous in law and unsustainable. The civil revision petition is allowed; the judgment of the learned District Munsif is set aside; and O. S. No. 135 of 1956 is restored to the file of the District Munsif, Tiruvarur, for being re-tried on all the issues arising in the case, the parties being at liberty to adduce such further and additional evidence as they think fit. There will however be no order as to costs.