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Judgment
K. Gnanaprakasam, J.—The plaintiffs are the appellants.
The plaintiffs have filed the suits for permanent injunction, restraining the defendant/temple from leasing out the suit property in public auction.
The common case of the plaintiffs in both the suits is that the suit property belonged to the temple and the same was leased out to one Nachayee
Ammal, plaintiff in OS. No. 1197/1983, under the registered lease deed dated 30.7.1943 and to one M. Sundaram, plaintiff in OS. No.
1198/1983, under the lease deed, dated 11.7.1933 on annual cash rent. Apart from the cash rent, the tenants have to deliver certain number of
coconuts and ripe mangoes to the temple. The plaintiffs are entitled to raise crops as they like in the lands and they have been enjoying the suit
property as tenants and have been paying the rent as agreed and the rents have also been increased periodically and the rent paid by Nachayee
Ammal prior to the fling of the suit in 1982 was Rs. 1,150/- per year and the rent paid by M. Sundaram, prior to the filing of the suit in 1982 was
Rs. 920/-. The plaintiffs claimed that they are cultivating tenants and entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection
Act. The defendant/temple arranged to lease out the property on 30.6.1983 in public auction to get more rent and therefore, they field the suits.
The defendant/temple filed written statements, making common defence that the temple and its properties are under the supervision and control
of the Hindu Religious and Charitable Endowments Department and that in every Fasli, the property is put to public auction and the highest bidder
is given the right to pluck the fruits in the trees in the suit lands and the Officers of the Endowment Department would conduct the auction and that
the successful bidders would also execute documents in favour of the temple and the bidders have also undertaken that they have no right in the
lands and they are only licensees to enjoy the usufructs alone and the plaintiffs are entitled to only pluck the fruits from the trees and the plaintiffs
are not lessees and they are not entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act and when they arranged for the
auction in respect of usufructs, the plaintiffs have filed the suits.
Both the suits were tried together and the plaintiffs in their respective suits were examined as PWs. 1 and 2 and marked Ex. A1 to A55 and the
defendants have also examined two witnesses and also marked Ex. B1 to B15. The trial court accepted the case of the plaintiffs and decreed the
suits. On appeal, the lower appellate court accepted the case of the Temple and allowed the appeals. Aggrieved by the same, the plaintiffs have
preferred these appeals.
Heard both the learned advocates for the appellants and the respondents.
The only question that has got to be answered is, whether the right to pluck the usufructs from the tree in the suit property would amount to
lease or licence?
The plaintiffs claim that they are the lessees of the suit lands and they have also executed lease deeds in favour of the temple, which are Exs. A1
and A2 and also entitled to be in possession and to enjoy the lands also. They also contend that as they are the tenants, they are entitled to the
benefits under the Tamil Nadu Cultivating Tenants Protection Act also.
Per contra, the learned advocate for the defendant/temple would contend that the plaintiffs are not lessees and the suit lands were brought to
public auction, in which the plaintiffs participated and taken only the rights of collecting usufructs alone from the trees in the suit lands and they are
not lessees and also not entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act, 1955. But, however, the plaintiffs
contend that they have been cultivating the lands also and they have raised plantain and greens and therefore, they are lessees. But, on the other
hand, the defendants would contend that the plaintiffs are not lessees and their names were not registered in the record of the tenancy register and
therefore, they are not tenants and their claim is not accepted.
Now, let us consider whether the right to pluck cocoanuts and mangoes would amount to lease and whether the person, who has taken the
said right, would be a tenant and entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act, 1955.
It is argued on behalf of the appellants that what was leased out to them is not only the right to pluck the usufructs of the trees alone, but, alto
to cultivate the lands also and therefore, they are the tenants in respect of the agricultural lands and as they are cultivating these lands personally,
they are entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act, 1955.
''Cultivating Tenant'' is defined u/s 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act, 1955, which states "" ''Cultivating Tenants''
means 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 and includes any such person who continues in possession of the land after the determination of the
tenancy agreement"". Cultivation is also defined as "" ''cultivation'' means the use of lands for the purpose of agriculture or horticulture"". The term
''land'' is also defined in Section 2(d) as "" ''land'' means 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.
The right to pluck cocoanuts or mangoes cannot be called a mere licence, having regard to the definition of ""immovable property"" u/s 3, Clause
(26) of the General Clause Act, which reads as thus, ""Immovable property'' shall include land benefits to arise out of land and things attached to
the earth or permanently fastened to anything attached to the earth."" Therefore, the lease of plucking of cocoanuts or mangoes would amount to
transfer of interest in immovable property and therefore, the plaintiffs are the tenants in respect of the agricultural lands.
A similar question arose for consideration, in the case of R. Saravanan Vs. Sri Vedaranyeswaraswami Devasthanam, Vellalar Koil, Mayuram
Town, rep. By its hereditary trustee, the R. Saravanan Vs. Vedaranyaswaraswami Devastanam, Vellalar Koil and Another, wherein (S. Mohan, J.,
as he then was), the Court, after considering the question in a detailed manner and also following the decision rendered in P. Venugopala Pillai Vs.
V. Thirunavukkarasu and Others, (wherein Rajamannar, Officiating CJ, as he then was) had observed, ""On a plain reading of the document, it is
clear that the rights which the defendant obtained there under were: (1) the right to enjoy the toddy yield from the trees; and (2) the right to enter
upon the land for the said purpose. It is quite clear that the defendant did not obtain any right in and to the land. He was not entitled to the
exclusive possession of the land as such. The owner was entitled to make such use of the vacant land as she wanted to and she was expected, at
her cost, to water the trees and keep the garden in good condition. The defendant cannot, therefore, be held to be a lessee of a garden as such. So
far as the land was concerned, he was only a licensee and his right to enter upon the land and to use the land was only so long as he had the right
to enjoy the toddy yield from the trees. The next question is whether this right to take the toddy yield from the trees to which certainly the
defendant was entitled under the document was a right in the nature of a licence or was it a lease of immovable property? Section 105 of the
Transfer of Property Act defines a lease thus, ''A lease of immovable property is a transfer of right to enjoy such property, made for a certain time,
express or implied, or in perpetuity, in consideration of a price paid or promised, or of money'' A licence is defined in the Indian Easements Act in
Section 52 as follows:- '' Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon
the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an
easement or an interest in the property, the right is called a licence.''
In Shiv Dayal Vs. Putto Lal and Others the Allahabad High Court applied the very same test and held, ""a mortgage of a fruit bearing tree is a
mortgage of immovable property. Applying this test there can be no doubt that the right to tap the cocoanut trees and obtain toddy is in the nature
of immovable property because it is a benefit which arises out of land.
The right to cut and remove the cocoanuts was considered in the case of Ranga Iyengar Vs. Sivaswami Pandaram 1977 2 MLJ 265 wherein it
was held, ""Since in this case the lease was not a lease of the land but it was a lease of the right to cut and remove cocoanuts from the trees standing
on immovable property, it is a lease of immovable property itself and as held by this Court it is also an agricultural lease."" Ultimately, it was held,
The right to pluck the cocoanuts would amount to a lease of immovable property and that it is an agricultural lease.
Applying the ratio in all the decisions referred to above, there may not be any difficulty in arriving at the conclusion that the plaintiffs in the suits
were also given the right to pluck cocoanuts and mangoes and as a matter of fact in Exs. A1, A2, A33, A34, the right was given to enjoy the land
also and as such, we have to necessarily hold that the plaintiffs are the cultivating tenants in respect of the agricultural lands.
In Amirthakateswaraswami Arthajama Kattalai, Thirukkadaiyur, by its Trustee Govindaswami Chettiar Vs. Kaliyamurthy 1995 1 LW 42 JS
(Ismail, J., as he then was), had an occasion to consider the case of this nature, whether the right to enjoy the usufructs of cocoanut tree was a
lease or licence. In that case also, apart from the right to pluck usufructs, the lessee was also given the right to raise punja crops in the land. In that
said context, it was held, ""what was the subject matter of the lease was not merely the usufruct of the cocoanut tope, but also of the land itself and
therefore, he is the lessee cultivating the lands and not the licensee.
In our case, the trial court held that the plaintiffs are the cultivating tenants and granted the relief of injunction. But, however, the lower appellate
court had applied the Public Trust Act and held that what was leased out is a tope and therefore, the Tamil Nadu Cultivating Tenants Protection
Act is not applicable to the plaintiffs. A similar question arose for the consideration in the case of M.Doraiswamy Vs. Sri Sangameswaraswamy
Devasthanam, Bhavani by its Executive Officer, Bhavani 1995 1 LW 43 JS (Mohan, J., as he then was), in which the provisions of the Tamil Nadu
Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 and also the Tamil Nadu Cultivating Tenants Protection Act, 1955
were considered. Section 2(29) of the Public Trust Act defines about ''thope'' and Section 51 of the said Act excludes certain lands as follows,
Nothing contained in this Act shall apply to (iv) lands converted into orchards or topes or arecanut gardens whether or not such lands are
contiguous or scattered: Provided that such lands shall be exempt only so long as they continue to be Orchards, topes, or arecanut gardens.
Section 62 of the said Act also says, ""On and from the date of the commencement of this Act, the Madras Cultivating Tenants Protection Act,
1955 and the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956, shall stand repealed in their application to a cultivating tenant in
respect of any land held by him under a public trust."" But, in view of the definition of 2(aa), (b) and (bb) of the Tamil Nadu Cultivating Tenants
Protection Act, it was held that the nature of right is only a lease and not a licence and the Public Trust Act would not be applicable and held that
the tenant is entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act, 1955.
In view of the decisions rendered by the Division Bench in 1995 1 LW 42 JSand 1995 1 LW 43 JS one could easily come to the irresistible
conclusion that the lease granted to pluck or gather cocoanuts or mangoes is lease of immovable property and therefore, the lease would be
considered as an agricultural lease and the lessee is entitled to the Tamil Nadu Cultivating Tenants Protection Act, 1955. In our case, the lessees
are further strengthened by the express language used in Exs. A1, A2, A33 and A34, wherein it is stated that along with the land, the lease was
granted and therefore, there can be no doubt that the plaintiffs are the lessees and not the licensees and therefore, they are entitled to the protection
under the Tamil Nadu Cultivating Tenants Protection Act, 1955 and their suits have got to be decreed.
In the result, the second appeals are allowed and the decree and judgement of the lower appellate court are set aside and the decree and
judgement of the trial court are restored. No costs. Consequently, connected CMPs are closed.