Muthulakshmi and others vs Pongiammal Gounder

M.N. Chandurkar, C.J.—This revision petition is another instance of how a claim for eviction of the cultivating tenants is dealt with in a slip-shod manner by the authority under the Cultivating Tenants Protection Act, 1955 in the proceedings under S. 3 of the Act. There has been some earlier litigation between the parties. The litigation was one in the nature of O.P. 36 of 1967, under S. 3(3)(a) filed by the original tenant who is no more. In that petition, the tenant was required to deposit lease money at the rate of Rs. 2000 plus 300 cocoanuts per annum. The value of 300 cocoanuts was computed at Rs. 120. This order was made on 20.5.1970. The landlady then filed a petition under S. 3(2)(aa)(b) read with S. 3(4)(a) of the Tamil Nadu Cultivating Tenants Protection Act, 1955, (hereinafter referred to as the Act), for eviction of the tenant from S. Nos. 164, 166, 165, and 166 on the ground that the tenant had not paid rent for the period from 1967 to 1970. It was also alleged that rent had not been paid for the years 1970--71 to 1972--73, and that this rent was payable at the rate of Rs. 4000 per annum. This petition was filed on 15.3.1971.

Sometime in the year 1977, the original tenant died. However, before he died, he had filed his written statement disputing the lease amount of Rs. 4,000 per year. According to him, the lease amount was only Rs. 2.000 plus Rs. 120 being the value of 300 cocoanuts. This, according to the tenant was supported by the order in O.P. 36 of 1967 and the decree in O.S. 571 of 1970. He claimed that he had paid lease amount till Panguni 1971 and be had to pay only for two years at the rate of Rs. 2,120 for the years 1971-72 and 1972-73. Thus, only a sum of Rs. 4,240 was in arrears. The application for eviction was also made on the ground of waste having been committed on the land by the tenant by digging pits and removing cart-loads of sand for the manufacture of bricks. This was denied by the tenant. An application came to be filed during the pendency of the proceedings before the Deputy Collector on 3.6.1975, by which the landlady restricted her claim only on the ground of waste and stated that in view of the Ordinance, the eviction on the ground of arrears was not being pressed.

The exact date on which the original tenant died is not known but he died some time in 1977. However, on 31.7.1986, the counsel appearing for the deceased tenant seems to have made a statement before the Deputy Collector that the tenant was dead. An application, therefore, came to be filed on 9.9.1986, i.e., almost nine years after the death of the original tenant asking for the legal representatives of the deceased tenant to be substituted. The deceased tenant left behind his widow, three daughters, a son and three minor children. Obviously they were sought to be impleaded. It does not appear that a notice of this substitution application was issued to the proposed legal representatives. But the application came to be allowed by the Deputy Collector by a short order stating--

......Respondents'' counsel has already filed a memo on 31.7.1986 requesting this petition to implead the legal representatives of the deceased respondent. Hence, this petition is allowed.

It is undoubtedly true that if the same counsel was able to file a vakalath for all the proposed legal representatives, the notice to the legal representatives could have been dispensed with and if the counsel who held vakalath on behalf of all the legal representatives did not object to the proposed legal representatives being brought on record, an order to that effect could have been made by the Deputy Collector. It does not appear that the counsel who appeared in the case really held any vakalath for all the legal representatives. What appears to have happened was that the widow of the deceased tenant seems to be attending to this litigation and she continued to remain present on several days of hearing. The fact, however remains that the other proposed legal representatives did not authorise the lawyer who was appearing in the case to appear for them. In any case, without express authority by a vakalath, the counsel had no justification to make any statement on behalf of the legal representatives that they should be joined as parties. One does not know what defences the proposed legal representatives would have taken to their being joined. At least patently, the application which has been made more than 8 years after the death of the deceased was open to challenge on the ground of delay. The date on which this order was made is not known as the order does not bear any date, but after this order was made, the matter seems to have been taken up on 2.3.1987. On that day, the Deputy Collector passed a very summary order as follows--

......Totally the respondent has paid Rs. 7,120 till today. There is a balance of Rs. 4,880 towards the arrears of rent....The respondent tenant is directed to pay the above said arrears of Rs. 4,880 in 3 equal instalments on 1.4.1987, 1.5.1987 and 1.6.1987.

As a matter of fact, there is no eviction order at all made. There was also no conditional order that if the instalments are not paid, the tenant will be evicted and the normal phraseology of petition being allowed has been used. When the instalments were directed to be paid, it was incumbent on the Deputy Collector to make an order that in case the instalments are paid, the petition will stand dismissed and in case the instalments are not paid, the tenant will be evicted.

Notwithstanding the fact that there is no positive order permitting eviction, the landlady filed an execution petition. In the execution petition, the Deputy Collector held that since the tenants had failed to comply with the directions in the earlier order, there was no alternative except to evict the tenants from the leasehold lands. The execution petition was allowed and the respondents-tenants were directed to be evicted and possession of the lands was directed to be handed over to the landlady. This revision is filed against this order on behalf of all the legal representatives of the deceased tenant.

The contention raised on behalf of the legal representatives is that there was no notice of substitution of the legal representatives to them, and, therefore, the order of eviction must be construed as one against a dead person and even the earlier order on 2.3.1987 must be construed as against a dead person. The other contention is that the claim of arrears having been given up earlier, the Deputy Collector was not justified in ordering eviction on the ground of arrears. The last contention is that eviction could not have been ordered on the footing that rent was payable at Rs. 4,000 per year in the earlier litigation it was settled that the amount of rent was Rs. 2,000 plus Rs. 120 being the value of 300 cocoanuts.

As against these contentions, it is argued on behalf of the landlady that the revision petition itself is incompetent as in the revision application the order dated 2.3.1987 is not challenged and the revision application purports to challenge only the order dated 9.7.1987. It is also argued that there was no dispute whatsoever with regard to the quantum of rent and no dispute is raised with regard to the quantum on 2.3.1987 when arrears have been determined. With regard to the contention that the order was passed against a dead person, the argument is that the widow of the deceased tenant was representing her whole family before the Deputy Collector, and, therefore, when she and her counsel appeared before the Deputy Collector, all the legal representatives must be taken to have been represented before the Deputy Collector. Now at the threshold it is not possible to accept the argument of the learned counsel for the landlady that the revision application is filed only against the order dated 9.7.1987 and that the order dated 2.3.1987 has become final. It is difficult to see how the order dated 2.3.1987 has become final. As already pointed out, the order dated 2.3.1987 does not direct eviction consequent upon non-payment. Though the Deputy Collector observed that the petition was allowed, those observations were clearly made mechanically. The proper course which should have been adopted by the Deputy Collector was to have directed the petition to be placed before him after 1.6.1987, which was the last date for the payment of the last instalment since the order itself did not refer to eviction. The question as to whether the tenant was to be evicted or not could be decided only after the tenant had failed to pay the instalment which was directed to be paid on 1.6.1987. If the Deputy Collector did not want to keep the matter alive, then he should have by the same order directed that in case of failure 10 pay instalments or any one of them, the tenant will be evicted. The order as it stands cannot, therefore be considered as concluding any controversy except the controversy with regard to the amount to be paid. What was to happen if the amount was not paid was not mentioned by the Deputy Collector at all. This has been done by him in the subsequent order dated 9.7.1987. The order dated 9.7.1987, therefore, is the substantive order which is operative and which affects the rights of the parties. That order cannot be read apart from the order dated 2.3.1987. This is apart from the fact that in the grounds of revision petition, the order dated 2.3.1987 has been challenged as being a nullity. It is not therefore, possible to reject this, petition on the ground that the order dated 2.3.1987 is not challenged. When we go to the order dated 2.3.1987 undoubtedly, that order shows the name of the widow of the deceased as the tenant. That order does not refer to any other heirs. She is the sole tenant who has been shown as the respondent in the order dated 2.3.1987. There is a serious infirmity in this order in as much as it obviously purports to affect the rights of the other legal representatives of the deceased tenant. As already pointed out, the deceased tenant had left behind several legal representatives. The definition of ''cultivating tenant'' which is given in S. 2(aa) of the Act is an inclusive definition. It has been made clear that the definition will include only the heir who contributes his own physical labour or that of any member of his family in the cultivation of such land.

When the petition for bringing on record the legal representatives of the deceased tenant was made and all the legal representatives have been asked to be substituted in the place of the original tenant, having regard to the provisions of the Act, it must be presumed that even according to the landlady, all the legal representatives were heirs who were contributing their physical labour. Therefore, each one of them had rights in the land. They were entitled to cultivate this land in their own right consequent upon the death of the deceased tenant. The widow of the deceased could not represent all the legal representatives. At best, she could represent only the minor children of whom she was the guardian. So far as the major issues are concerned, the widow did not have any representative capacity. The learned Deputy Collector was therefore clearly under a misapprehension when he proceeded to decide the petition of the landlady on the footing that the widow of the deceased represented the entire family. As if this confusion was not enough, the counsel who appeared for the widow made matters worse by making a representation that he was representing all the legal representatives. There were major issues of the deceased. They could in their own right authorise a lawyer to appear for them. The lawyer who appeared did not have any vakalath in his favour and it was wholly improper for him to make a representation to the Collector that he was appearing for all the legal representatives. Equally, it was wholly improper for the Deputy Collector himself to proceed on the footing that all the legal representatives were represented before him. The order dated 2.3.1987 is, therefore, clearly an order which is invalid and illegal. Similarly, the order directing the legal representatives to be brought on record is equally infirm. No order directing a person to be brought on record as legal representative could be made unless that person is heard, more so, when the application is unduly delayed. Therefore, before making any order allowing such an application, the legal representatives should have been beard and given an opportunity to contest that application. At least after they are joined they were entitled to a notice of the main proceedings. The entire procedure adopted by the Deputy Collector appears to me, therefore, to be vitiated by irregularities.

So far as the quantum of rent is concerned, the Deputy Collector was bound in law to make an enquiry as to what was the correct rent payable. Admittedly, there was an earlier litigation between the parties in which the rent was fixed at Rs. 2,000 plus Rs. 120 on account of value of cocoanuts. Unless it was possible for the landlady to prove that there was a fresh agreement and the lease amount was increased it was wholly incompetent to the Deputy Collector to proceed on the footing that the rent was Rs 4.000. No enquiry has been made by the Deputy Collector and it gives an impression that the matters have been hustled through for the benefit of the landlady. This is, therefore, a case where the order dated 9.7.1987, the order dated 2.3.1987 and the order of substitution made earlier which is undated, will all have to be set aside.

The entire proceeding is now remitted back to the Deputy Collector with a direction that he should first decide the application for substitution and then only proceed to decide the dispute as regards the arrears after hearing parties and making an enquiry. All the legal representatives are petitioners in this petition. No separate notice will, therefore now be required to be given to them by the Deputy Collector. They will appear before the Deputy Collector on 16th November, 1987 by which time it is expected that this order will reach the Deputy Collector. The Deputy Collector will then fix the date of hearing as indicated above. In consequence of the orders being set aside, it is obvious that the tenants must be treated as having been illegally dispossessed. They will be entitled to restoration of possession. The Deputy Collector will take necessary steps to see that the tenants are put back in possession. The revision petition is allowed with costs. Costs Rs. 500.