Murugesan vs Sundaralal

Balasubrahmanyan, J.—One Thangavelu Mudaliar, who was the owner of a cocoanut tope, leased out the right to gather cocoanuts from

the tope in favour of one Murugesan. This lease was evidenced by a registered lease deed. Murugesan clearly declared that he had no right of

possession whatever in the land on which the cocoanut tope stands and the subject-matter of the lease in his favour was strictly limited to the

enjoyment of the usufruct from the cocoanut trees, in consideration of payment of rent at a certain rate. The lease under this document was for a

term of two years. But, even after the expiry of that period, the relationship of the parties continued as before as respects the cocoanut trees and

the usufructs therefrom. After the death of Thangavelu Mudaliar, a similar arrangement was continued by his son and thereafter by his grandson,

Sundarlal. On 28th November, 1977 Sundarlal issued notice to Murugesan demanding payment of rent which had fallen in arrears and asking him

to render vacant possession of the cocoanut tope. On the failure of Murugesan to comply with the terms of the notice, Sundarlal filed a suit for

recovery of possession of the tope from Murugesan. The main defence put forward by Murugesan to the suit was that it was not maintainable.

According to Murugesan, his position under the terms or the lease was that of a cultivating tenant and he could not be evicted from the premises,

otherwise than on the grounds and in the manner laid down by the Tamil Nadu Cultivating Tenants'' Protection Act, 1955. The trial Court rejected

this contention. On appeal, the appellate Court agreed with the trial Court''s view. In this second appeal, learned counsel for the tenant Murugesan

submitted that the lease in the present case was a lease of immovable property and a lease for agricultural purposes and hence the remedy of the

landlord cannot be by way of a suit in ejectment, but only by way of appropriate proceedings for eviction under the Cultivating Tenants'' Protection

Act. Learned counsel relied on two decisions, both of them by learned single Judges of this Court. He cited Arumugha Vettian v. Angamuthu

Nattar 1965-1-M.L.J. 170= 77 L.W. 745 for the position that where the subject-matter of a lease for a period of time is the right to collect the

usufruct of cocoanut trees, such a right must be held to be in the nature of lease of immovable property. The other decision cited by the learned

counsel is Renga Iyengar v. Sivsawami Pandaram 1977-II M.L.J. 265=90 L.W. 559. In this case the right to the usufruct of cocoanut trees was

leased out in favour of an individual, who was let into possession of the land over which the cocoanut trees stood. It was found that the lease did

not include a demise of the land itself. The learned Judge, however, held that since the cocoanut trees were attached to the earth and growing

cocoanuts must be regarded as an agricultural operation, the entire lease must be regarded as lease of immovable property for agricultural

purposes and a suit in ejectment must be preceded by a valid notice to quit. Learned counsel for the landlord, however, submitted that the law

recognised a distinction between lease of land, on the one hand, and a mere lease of the usufruct of the trees, on the other, in the latter relationship

there would be attached a licence to the lessee to enter upon the land, for the purpose of effectuating this lease, by getting at the usufruct of the

trees and removing it. Learned counsel submitted that the very essence of a lease of land is, that the land should be demised by the lessor in favour

of the lessee. A demise involves a transfer of an interest in land as such, and the delivery of possession of the land to the lessee. In the case of a

lease of the usufruct of trees that does not involve any transfer of an interest in land, much less a demise, involving delivery of possession. Learned

counsel pointed out that in the present case the lessee, Murugesan, had unequivocally declared in the lease deed that he had no interest whatever in

the land on which the cocoanut trees stood.

I accept the soundness of the contentions put forward by learned counsel for the landlord. There is a well-merited distinction between a demise

of land by way of lease and a mere lease of the trees standing on land to enable the lessee to gather the usufruct. In the face of this distinction

recognised by the law, the two decisions referred to by the learned counsel for the lessee may properly be read as turning on factual consideration.

It is, however unnecessary for the purposes of the present discussion to examine the two decisions further or even to consider whether in the

present case there has or has not been a lease of immovable property for agricultural purpose. This is because the defence put forward by the

lessee in this case is not that he is a lessee of immovable property for agricultural purpose and therefore, the suit does not lie. His defence is, and

has to be, more, specific. He has formulated his objection to the maintainability of the suit only by saying, and hoping to establish, that he is a

''cultivating tenant'' within the meaning of the Tamil Nadu Cultivating Tenants'' Protection Act, 1955. The expression ""cultivating tenant"" is defined

for the purpose of that Act by S. 2 (aa) as a person, who contributes his own physical labour or that of any member of his family in the cultivation

of any land belonging to another under a tenancy agreement, express or implied. The expression ""land"" is defined in S.2 (d) of the Act as meaning

land used for the purpose of agriculture or horticulture and includes any building, or any waste, vacant or forest land, appurtenant thereto and any

house site belonging to the landlord and let to the cultivating tenant under the same agreement of tenancy. It would be seen from these statutory

definitions that the person who claims to be a cultivating tenant must be a person who contributes his labour or that of any member of his family in

the cultivating of land, the land being defined as land used for the purpose of agriculture. The inclusive definition of ''land'' contains many things

which cannot strictly be regarded as land used for the purpose of agriculture, such, for instance, as a house site. But, the definition does not include

trees standing on land. It will be further noticed that the cultivation of land for agricultural purposes by a person either by his own physical labour or

with the aid of any member of his family must be under a tenancy agreement, express or implied, appertaining to the land and its cultivation. The

tenancy agreement, in other words, must attach to the land and if land does not figure, the lessee is not a cultivating tenant at all within the statutory

definition. Where, therefore, the tease only impinges on the usufruct of the trees standing on the land and where, as in this case, land is severely

excluded from the ambit of the subject-matter of the lease, then it would not be proper to regard the lessee as a cultivating tenant within the

meaning of this Act. On the terms of the two definitions in the Act, therefore, I am satisfied that the objection to the maintainability of this suit was

rightly turned down by both the Courts below.

Learned counsel for the landlord referred me to a decision of a Division Bench of this Court reported in Govidaswami v. Mahalakshmi Ammal

76 L.W. 378 = 1963-II-M.L.J. 137. In that case, there was a lease under which the lessee was entitled to collect the produce from trees, and the

lease deed made it clear that the right created under the lease was only in respect of the trees and not in respect of the land. The question in that

case was whether the lessee could claim the benefits of the Cultivating Tenants'' Protection Act, 1955. The Division Bench held that the lessee

cannot be regarded as a cultivating tenant. Although this Judgment of the Division Bench does not draw pointed attention to the definitions of the

statutory expressions ""cultivating tenant"" and ""land"" occurring in the Cultivating Tenants'' Protection Act, the principle on which the Division Bench

rendered their conclusion is one, which, with respect, I will adopt for the purpose of the present case, in addition to basing my decision on the

words of the statutory definitions. For all the above reasons, this second appeal has no merits and is hereby dismissed in the peculiar circumstances

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