Rasu Pillai vs Additional Tahsildar (Kudiyiruppu) Mayiladuthurai and Others

The petitioner in this writ petition claims that he was an occupant of a kudiyiruppu within the meaning of the Tamil Nadu Occupants of

Kudiyiruppu Conferment of Ownership) Act 1971 (Act XJ of 1971) hereinafter referred to as the Act. On 19-6-1971 he applied for the

kudiyiruppu patta seeking determination of the question as to whether he was in such occupation or not. According to the petitioner he is an

agriculturist cultivating nanja lands of about 4.13 acres belonging to the 4th respondent as a tenant and further he is occupying a site measuring 7

cents in S. No. 108 in Mannamparithal vattam, Mayiladuthurai taluk, and the superstructures put up thereon, both belonging to the 4th respondent.

The petitioner would characterise his occupation of this site of an extent of 7 cents as occupation of a kudiyiruppu within the meaning of the Act.

The 4th respondent contested the case of the petitioner stating inter alia that the demise was not only of this site of 7 cents but also of the

superstructure''s put up thereon as a single unit, under a tenancy arrangement while the petitioner served the 4th respondent as a car driver, and

since the petitioner has been removed from service, he could not continue to be in occupation of the premises and in any event, there could not be

a claim for kudiyiruppu under the Act by the petitioner. The 4th respondent also raised a controversy over the claim of tenancy put forth by the

petitioner with regard to the nanja lands of about 4.13 acres, with which we are not very much concerned in these proceedings in view of the point

raised. The first respondent heard the matter, opined that the site and the superstructures belonging to the 4th respondent would not be an

impediment with regard to countenancing the claim of the petitioner for kudiyiruppu patta and following a pronouncement of Sethuraman, J. in

Visalakshi K. v. Maruthamuthu Pillai, 1981 194 Mad LW 514: AIR 1982 NOC 175, granted the petitioner the kudiy1ruppu patta in respect of

the 7centsof site along with the superstructure thereon since as per the provisions of S 312) of the Act, the superstructure shall also vest in the

occupant of the kudiyiruppu. The 4 th respondent appealed and the appeal came to be heard and disposed of by the 2nd respondent and by the

order impugned in the writ petition, the second respondent reversed the order of the first respondent holding that the demise was not, only of the

site but also of the superstructure and hence the provisions of the Act could not be invoked. The second respondent chose to follow the

pronouncement of Suryamurthy J. in T.K. Narayana Pillai Vs. Naganatha Iyer, . The order of the second respondent is being put in issue in this

writ petition.

There is a controversy as to whether the petitioner is an agriculturist within the meaning of the Act. The petitioner claims himself to be an

agriculturist. This is not being accepted by the 4th respondent. It has come out from the materials placed in the case that while the petitioner was

serving the 4th respondent as a driver he was inducted into possession of the premises, both the site and superstructure - and his services have

been terminated subsequently and further, he was also given a lease of nanja lands of an extent of 4.13 acres. The first respondent proceeded that

the petitioner is an agriculturist within the meaning of the Act, on the ground that he must be cultivating this extent of nanja lands. However, in the

order passed by the second respondent, I do not get indication of any positive adjudication on this question on behalf of the 4th respondent, it is

contended before me that even assuming that the petitioner is an agriculturist, yet, the demise by way of a lease in favour of the petitioner being not

only of the site of an extent of "" cents, but also of the superstructure thereon as a single unit, both belonging to the 4th respondent, the provisions of

the Act could not at all be invoked, and, the subject-matter of demise and the occupation by the petitioner was not of a kudiyiruppu within the

meaning of the Act Learned counsel for the petitioner does not dispute before me that the demise in favour of the petitioner by way of lease was

not only of the site but also of the superstructure standing thereon as a single unit-. What he should contend is that by virtue of S. 3(2) of the Act

even though the superstructure belongs to the 4th. Respondent it would come to vest in the petitioner and the occupation of the petitioner would

still be characterised as kudiyiruppu within the meaning of the Act and hence the rights under the Act could be claimed and granted. Learned

counsel for the petitioner places reliance on ft pronouncement of Sethuraman J. referred to above. As against this, Mr. B. Kumar learned counsel

for the 4th respondent, would submit that the very definition of ''kudiyiruppu in S. 2(8) of the Act speaks about the site of any dwelling house or

hut occupied, either a, tenant or as licensee, by any agriculturist of agricultural labourer and furthermore, the definition of ''tenant'' under S. 2(11) of

the Act contemplates, tenancy of the site alone and hence only if the demise is of the site alone and not of the site and the superstructure as a single

unit, the occupant of such a site could claim kudiyiruppu rights and the definition of ''kudiyiruppu'' under the Act does not and cannot take in die

demise of lease of a premises consisting of site and superstructure as it single unit.

Before I assess the contentions put forth by the respective counsel, I would like to advert to the relevant provisions of the Act. S. 2(8) defines

''kudiyiruppu'' as follows -

''Kudiyiruppu'' means the site of any dwelling house or hut occupied, either as tenant or as licensee, by any agriculturist or agricultural labourer and

includes such other area adjacent to the dwelling house or hut as maybe necessary for the convenient enjoyment of such dwelling house or hut.

Explanation ..............

S. 2(11) defines ''tenant'' in the following terms:

''tenant'' means any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to enjoy the land of the

latter under a tenancy agreement, express or implied, and includes his heirs and legal representatives.

S. 3 reads as follows:

Occupant of kudiyiruppu to become owner: -

(1) Any agriculturist or agricultural labourer who was occupying any kudiyiruppu on the 19th June 1971, either as tenant or as licensee shall, with

effect from the date of the commencement of this Act, be the owner of such kudiyiruppu, and such kudiyiruppu shall vest in him absolutely free

from all encumbrances.

(2) Where, in the case of an occupant of kudiyiruppu referred to in sub-sec. (J), the superstructure belongs to any person other than such

occupant, such superstructure shall also, with effect from the date of the commencement of this Act, vest in such occupant absolutely free from all

encumbrances.

A bare reading of S. 2(8), which defines kudiyiruppu, leaves no room for doubt in the mind of the Court that ''kudiyiruppu'' could have reference

only to the site. Such a site must have been occupied by an agriculturist or agricultural labourer, either as a tenant or as a licensee. There ought to

be a dwelling house or a hut over the site. The dwelling house or hut could belong either to the occupant or to any person other than such

occupantmay be the owner of the site also. The site will take in not only the exact area over which the dwelling house or hut has been put up, but

also such other area adjacent to the dwelling house or hut as may be necessary for the convenient enjoyment of such dwelling house or hut. For the

purpose of understanding the definition of kudiyiruppu under S. 2(8), it is proper to advert to and keep in mind the definition of ''tenant'' occurring

in S. 2(11) of the Act, which speaks about only a tenancy of the land. The very object of the Act is to provide for the conferment of ownership

rights on the occupants of kudiyiruppu in the State of Tamil Nadu, as its very preamble would indicate. Its object is not to cover and take in

demise of premises, consisting of site and superstructure as a single unit, either on lease or licence. The demise by way of lease or licence ought to

have been of the site alone.

In T.K. Narayana Pillai Vs. Naganatha Iyer, Suryamurthy J. had to deal with this question squarely and the observations of the learned Judge

run as follows -

The question to be considered is whether sub-sec. (2) of S. 3 will avail the defendant in the instant case, Sub-sec. (2) of S. 3 will be applicable

only if the defendant proves that he is an occupant of a kudiyiruppu and as ''kudiyiruppu'' means the site of any dwelling house or hut, occupied by

him, either as tenant or licencee, he should have taken the site alone on lease, if he is to claim the benefits of the Act. Any other interpretation of the

definition of kudiyiruppu in sub-sec. (8) of S. 2 of the Act will have far-reaching and calamitous consequences, because every agriculturist who is

in occupation of a house as a tenant within the area to which, the Act applies can then claim the benefits of the Act, not only in respect of the site

but also of the house.

This ratio of the learned Judge has been followed by, Mohan J. in Manickam and Others Vs. Dharmapuram Adheenam and Mutt, . No exception

could be taken to the ratio enunciated by the teamed Judges of this Court who had occasion to deal with the question directly. On my own

assessment also of the provisions of the Act, I have to hold that only where an agriculturist or an agricultural labourer was in occupation of a site on

a lease or a licence, express or implied, such a site could fail within the meaning of kuddiyiruppu. If the demise is both of the site and the

superstructure as a single unit, the matter could not be brought within the purview of the Act. S. 3(2) of the Act has got a purpose to serve, viz.,

where the superstructure belongs to any person other than the, occupant of a kudiyiruppu, such superstructure shall also vest in the occupant as

per the terms of that section. But, that purpose cannot be extended to say that even though the demise in favour of the occupant was not only of

the site, but also of the superstructure as a single unit, the provisions of the Act would be attracted and the occupant could claim the rights

conferred by the Act. In the decision relied on by the learned counsel for the petitioner, Sethuraman J. had no occasion to consider the question

directly, because this question never arose before the learned Judge in the manner in which it has arisen before me and the other two learned

Judges of this Court. In the case dealt with by Sethuraman J. the lower appellate Court, in a civil litigation, declined to countenance the case of a

person, defendant in the suit, that he is entitled to the benefits of the Act, on the ground that where the site as well as the superstructure belongs to

the owner, the occupant could not become entitled to the benefits of the Act. The facts of die case, the contentions of the parties and the point

dealt with by the learned Judge are totally different. This is quite evident from the relevant passage occurring in the judgment of. Sethuraman J.

which passage stands extracted as follow:

The lower appellate Court took three possible cases that may arise for the application of this provision. In the first category of cases falls a case

where the site belongs to a particular person and the agriculturist has put up a superstructure. The second category comprises of a case where a

site belongs to a particular person and the superstructure belongs to a third party and the agriculturist is in occupation of the property. The lower

appellate Court is of the view that to these two categories of cases, the provisions of the Act would clearly apply. This view is correct. The third

category of cases mentioned by the lower appellate Court is where the site as well as the superstructure belongs to the owner. In such a case,

according to the lower Appellate Court, the occupant does not become the owner. For the purpose, reliance is placed on the following words in

sub-sec (2) of S. 3, viz., ''the superstructure belongs to any person other than such occupant. It is not clear how the Court understands the above

words to mean that the superstructure must belong to a third party and not the owner of the site itself. So long as the occupant is not the owner of

the superstructure, sub-sec. (7) of S. 3 would apply. The words the superstructure belongs to any person other than such occupants would include

all those cases where the occupant is not the owner but someone else is, whether he is the owner of the site or a third party. The provision is so

clear in its language that it is rather surprising that the lower appellate Court came to the conclusion that sub-sec. (2) of S. 3 does Rot apply to a

case where the superstructure and the site belong to the same owner. In this case, there is no dispute that the defendant was an agriculturist. On

this construction of the provision it would follow that the defendant was entitled to rely on S. 3(2) of the Act read with S. 2(8).

The first authority viz. the first respondent, was not in order in placing reliance on the judgment of Sethuraman J. on the facts of the case to uphold

the claims of the petitioner and the appellate, authority viz., the second respondent, in my view, did the right thing in following the pronouncement

of Suryamurthy J.

In the circumstances stated above, I could not uphold the grievance of the petitioner that there was any error committed by the second

respondent by- passing the impugned order. Accordingly, this writ petition fails and the same is dismissed. There will be no order as to costs.

Petition dismissed.