S. Gopalaswami vs A.B.M. Nagamiah

V. Ramaswami, J.—The defendant is the appellant. The suit was filed by the respondents herein for recovery of possession of 1 acre and

12,837 sq. feet of land comprised in S.No. 1013/2 with trees, pond, well, etc., and for damages for use and occupation. The damages were

claimed at Rs. l,500/- per year for three years prior to the suit and at the same rate from the date of the suit till the date of delivery. The plaintiffs''

case was that the suit properties were leased to the defendant for a long time and the defendant was executing lease deeds and the last of such

lease deeds was executed on 2nd December 1952. That deed was for a year and after that deed, the defendant was continuing to be the lessee

under the same terms and conditions and was paying paghuthi. The further case of the plaintiffs was that the defendant was indifferent in paying the

paghuthi and therefore, by a notice dated 27th June 1966 they culled upon the defendant to pay the arrears and vacate and surrender possession

after the expiry of 15 days from receipt of the notice. The defendant had not vacated the same not paid the rent. Accordingly, the suit has been

filed. The main defence was that the defendant is a cultivating tenant entitled to the protection of the Tamil Nadu Cultivating Tenants Protection

Act, 1955 (Tamil Nadu Act 25 of 1955) (hereinafter called the Act). The defendant also contended that there was no valid and proper notice of

termination of the tenancy and that he continues to be still a statutory tenant. He further contended that he was liable to pay only at the rate of Rs.

60/- per annum as rent for the suit properties and that he was not liable to pay any damages, much less at the rate of Rs. 1,500/- per annum. He

offered to pay Rs. 180/- for the three years prior to the suit. On the ground that he is a cultivating tenant entitled to the benefits of the Tamil Nadu

Act 25 of 1955, the defendant also pleaded that the Civil Court had no jurisdiction to entertain the suit for eviction.

The trial court held that the suit is maintainable for eviction. The trial court considered the lease deed and thought that it a consists of a lease of

three portions, viz., (1) a house, (2) vacant land, and (3) cocoanut garden. In respect of the house and cocoanut garden, the trial court held that the

defendant was not a cultivating tenant and that in respect of the vacant portion, the defendant was a cultivating tenant. Accordingly, the trial court

decreed the suit for possession of the house and the cocoanut garden and dismissed the suit as far as the vacant site is concerned. The trial court

also granted damages in the sum of Rs. 2,250/- for three years prior to suit as against the claim of Rs. 4,500-00, The defendant preferred an

appeal before the learned District Judge of East Thanjavur. The plaintiffs also preferred cross-objections. The cross-objections related to that

portion of the decree where the suit was dismissed, in relation to the vacant land and also the rejection of the portion of the claim of damages The

learned District Judge held that the lease was of the usufructs of the trees, but so far as the land is concerned, the defendant was only a licensee

and that therefore, the plaintiffs are entitled to eviction from the entirety of the properties. But the lower appellate court confirmed the damages

given at the rate of Rs. 750/- per year for the period of three years prior to the suit. It is against this judgment of the lower appellate courts this

second appeal has been preferred.

The first question that arises for consideration is whether the construction placed by the learned District Judge on the lease deed, Ex. A-4, dated

2nd December 1952 executed by the appellant in favour of the plaintiffs'' father was correct, and the finding that the defendant was not a cultivating

tenant in relation to that property has to be accepted?

We are not now concerned with the second item, viz., house described in the schedule to this lease deed, Ex. A.4. We are concerned with the

land and the trees thereon. In the Schedule to the lease deed the property leased is described as a garden land of an extent of 1 acre and 12,837

sq. feet comprised in Survey No. 1013/2 together with the pond, trees and the well situate within the four boundaries mentioned therein. The lease

deed recited that the land belongs to the lessor and that the schedule mentioned property with the trees thereon are leased to the defendant for a

period of one year, the rent payable being Rs. 120/- per annum. The lease deed directed that the ploughing of the land and the fencing are to be

done by the lessee at his own cost. The lease deed further authorised that in the inter-space between the trees, the lessee is entitled to cultivate

such of the crops as are possible and enjoy the same for himself. At the end of the lease period, the lessee has to hand over possession of the suit

properties. The terms set out above clearly show that what was leased in favour of the defendant was not only the trees and the usufructs thereof

but also the land comprised in Survey No. 1013/2. It is also in evidence that in some portions the defendant had cultivated the land with plantain

cultivation and in some other places with such dry crops like chillies, brinjals, gingelly crops, lady''s ringer, tomato and cluster beans The lower

appellate court thought that the terms of the lease deed and the cultivation of plantains, chillis, brinjal, lady''s finger, etc.. in the inter-space did not

show that the lease was of the land itself. It held that the defendant was only a licensee in respect of the land and that the lease was only of the

usufructs of the trees. In coming to this conclusion, the lower appellate court mainly relied on the quantum of the lease amount As seen from the

document Ex. A-4, the lease amount was fixed at Rs. 120/- per annum. From this alone one cannot come to the conclusion that the land was not

leased but only the usufructs of trees that were leased. It is true that there were as many as 168 cocoanut trees, 8 mango trees, 1 palmyrah tree

and 3 jack trees; but the terms of the lease deed are clear. It specifically authorises the lessee to cultivate in between the spaces such crops as are

possible and the evidence is that the defendant had been raising plantains, chillies, brinjals, lady''s finger, tomato and cluster beans as already

stated. The description of the property leased also shows that what was leased is the land and the trees along with the well comprised in Survey

No. 1013/2 measuring 1 acre and 12,837 sq. feet. I have, therefore, no doubt that the lease was of the land and the trees and not the usufructs of

the trees alone.

There could be no doubt that the defendant was a cultivating tenant. There is no dispute that he was contributing his own physical labour and

that of the members of hit family in the cultivation of the land and enjoying the usufructs. Certainly, therefore, the defendant is a person who could

be called a cultivating tenant within the meaning of S.2 (a) of the Act. Admittedly, the tenant had not paid rent for three years prior to suit, and

therefore, he falls under S.3(2) of the Act.

On the question whether the Civil Court can order an eviction of a tenant falling under S. 3(2) of the Act, the learned counsel'' for the plaintiffs

contended that even though the defendant may be a cultivating tenant, since he was admittedly in arrears of rent for more than 3 years prior to the

filing of the suit, he would not be entitled to the benefits of the Act and that therefore, the plaintiffs could file a suit for eviction and the Civil Court

can grant a decree for eviction. Number of decisions have been cited. But, before considering the decisions, we may note certain provisions in the

Act itself which have a bearing on the question. The Act is intended to protect a cultivating tenant from unjust eviction. Under Sub-S.(1) of S. 3,

the Act provides that subject to other provisions of that Section, no cultivating tenant shall be evicted from his holding or any part thereof, by or at

the instance of his landlord, whether in execution of a decree or order of a court or otherwise. The conferment of jurisdiction of the Revenue

Divisonal Officer to order eviction on the application of a landlord and the exclusion of jurisdiction of Civil Court on such matters are to be found in

S.3(4) and S.6 of the Act. Since a construction of these two provisions are involved in this case, they may be usefully extracted here:

3(4)(a): Every landlord seeking to evict a cultivating tenant falling under Sub-Section(2) shall, whether or not there is an order or decree of a court

for the eviction of such cultivating tenant, make an application to the Revenue Divisional Officer and such application shall bear a court-fee stamp

of one rupee.

(b) On receipt of such application, the Revenue Divisional Officer shall, after giving a reasonable opportunity to the landlord and the cultivating

tenant to make their representations, hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in

a case falling under clause (aa) of sub-section (2) in which the tenant had not availed of the provisions contained in sub-section (3), the Revenue

Divisional Officer may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the

landlord and the cultivating tenant for depositing the arrears of rent payable under this Act inclusive of such costs as he may direct. If the cultivating

tenant deposits the sum as directed, he shall be deemed to have paid the rent under sub-section (3) (b). It the cultivating tenant fails to deposit the

sum as directed, the Revenue Divisional Officer shall pass an order for eviction.

6.--Bar of Jurisdiction of Civil Courts-No Civil Court shall, except to the extent specified in S. 3(3), have jurisdiction in respect of any matter

which the Revenue Divisional Officer is empowered by or under this Act to determine and no injunction shall be granted by any Court in respect of

any action taken or to be taken in pursuance of any power conferred by or under this Act.

It may be seen from these two provisions that if a cultivating tenant falls under S.3(2) the landlord could seek to evict him from the land by filing an

application before the Revenue Divisional Officer. Broadly, the cases falling under S.3(2) of the Act are where (1) the tenant is in arrears of rent,

(2) the tenant is guilty of negligence which is destructive of the land, (3) the tenant is guilty of using the land for any purpose other than the

agricultural or horticultural in nature, and (4) the tenant had wilfully denied the title of the landlord to the land. S.6 of the Act excludes the

jurisdiction of the Civil Court in respect of any matter which the Revenue Divisional Officer is empowered by or under this Act to determine.

Under S. 3 (4) of the Act, the Revenue Divisional Officer is entitled to determine whether the landlord is entitled to evict the cultivating tenant on

the grounds that he falls under clause (2) of S.3. Clearly, therefore, in a case where a cultivating tenant is sought to be evicted on the ground that

there is arrears of rent, it is the Revenue Divisional Officer alone that has got jurisdiction, and the Civil Court would have no jurisdiction. In

Veluchumi Naicker v. Mouna Guruswami Naicker (1957) II M.L.J. 628 = 70 L.W. 933, a Division Bench of this court had to consider a similar

question. The learned Chief Justice, after quoting Section 6 observed:

Under S. 3, Sub-section (4) a landlord seeking to evict a cultivating tenant shall make an application to the Revenue Divisional Officer. It is clear,

therefore, that the relief of eviction is a matter which the Revenue Divisional Officer is empowered to deal with and determine.

If that it a matter which the Revenue Divisional Officer is to deal with and determine, clearly, S.6 bars the Civil Court''s jurisdiction to entertain a

suit for relief of that nature.

But the learned counsel for the respondents relied on S.6-A which reads as under:-

6-A. 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.

He referred to the decisions which had interpreted this section and held that only in a case where it is established that the tenant is not merely a

cultivating tenant within the meaning of the Act but also that he had not disqualified himself from claiming the benefits by reason of any of the

grounds mentioned in Sub-section (2) of S.3 of the Act, that the suit is liable to be transferred to the Revenue Divisional Officer. It is true that in a

number of decisions including the decision of the Supreme Court reported in Chinnamuthu Gounder and Others, etc. Vs. P.A.S. Perumal Chettiar,

it has been held that in order to transfer a suit, the defendant must prove not only that he is a cultivating tenant but also that he is entitled to the

benefits of the Act and unless those two conditions are satisfied, the Civil Court is not bound to transfer it to the Revenue Divisional Officer and it

can proceed to try and dispose of it itself. In my opinion, the fact that the defendant is in arrears of rent or guilty of denial of title of the landlord to

the land demised will enable the court to proceed with the trial, and the suit is not liable to be transferred to the Revenue Divisional Officer. But,

that itself will not enable the Court to make an order of eviction if the eviction itself on such ground could have been ordered by the Revenue

Divisional Officer under the Act. While the court is not bound to transfer when it comes to the conclusion that any one of the contingencies

mentioned under Sub-section (2) of S.3 which disentitles the tenant from protection against eviction exists, S.6-A could not be considered as

conferring a jurisdiction on the Civil Court to order eviction or providing an exception to S.6 which bars the entertainment of such a suit for

eviction. But for S.6-A even if the court were to hold that the defendant is a cultivating tenant and entitled to the benefits of the Act, it shall have no

jurisdiction to transfer the suit to the Revenue Divisional Officer. It may have to dismiss the suit as not maintainable. S.6-A of the Act only enables

the Court if it comes to the conclusion that the defendant is a cultivating tenant and entitled to the benefits of the Act to transfer it to the Revenue

Divisional Officer. But, in a case where the Court comes to a conclusion that the landlord is seeking to evict a tenant on the ground that one of the

grounds mentioned in S.3 (2) of the Act is available, the Court has to dismiss the suit on the ground that such a suit in so far as it related to relief of

eviction is barred under S.6 and could not be transferred to Revenue Divisional Officer under S.6-A. If the Civil Court finds that S.3 (2) is

attracted it may be asked what purpose is served in dismissing the suit and directing the plaintiffs to have recourse to S.3(4) of the Act as on the

ground that S.3(2) is attracted, the landlord will be entitled to an order for eviction from the Revenue Divisional Officer and the relief could be

given by the court itself. I am aware of the futility of the exercise. But, that is so even in the case of S.6-A. If S.6-A is applicable, after the transfer

the Revenue Divisional Officer has to simply dismiss the petition for eviction as the grounds on which he can order eviction are those found under

S.3(2) of the Act, and those grounds have been found by the Civil Court as not existing or available. That is the scheme of the Act, and we cannot

have any quarrel with it. It is also true in all those cases where S.6-A was considered where the Courts held that the suit is not liable to be

transferred under S.6-A, the suit itself was dealt with on merits and disposed of. We have already seen that only in respect of matters which the

Revenue Divisional Officer could determine under S.3(4), the Civil Court''s jurisdiction is barred under S.6 of the Act. Therefore, in cases where

S.6-A is not applicable, the suit is maintainable in so far as those reliefs which could not be asked for before the Revenue Divisional Officer but in

respect of those reliefs which the Revenue Divisional Officer could grant, the suit would not be maintainable. That is how we have to understand

and reconcile S.6 and the decisions rendered under S.6-A where it directed the suit to be disposed of on merits. Since in this case on the finding

that the tenant-defendant is in arrears of rent the suit itself is not liable to be transferred to the Revenue Court under S.6-A. But, the suit in so far as

it related to the prayer for eviction is liable to be dismissed on the ground that S.6 of the Act is a bar for granting a decree for eviction.

The learned counsel for the plaintiffs contends that the suit could be dealt as one for arrears of rent alone without a decree for eviction and that

the plaintiffs could be given a decree for arrears of rent for three years prior to the suit. The learned counsel is well founded in this contention He

further contended that in view of the termination of the tenancy by notice under Ex. A-2, the plaintiffs are entitled to claim damages at a higher

figure than what is provided under the lease deed. I am unable to agree with the learned counsel that the plaintiffs are entitled to higher rent, under

Ex. A-2 d. 27th June, 1966, the plaintiffs purported to terminate the lease of the defendant by giving 15 days notice. An agricultural lease, under S.

106 of the Transfer of Property Act could be terminated only by six months'' notice. Notice of termination was, therefore, not proper and valid.

Accordingly, the plaintiffs are entitled to claim only the rent and not damages for use and occupation. Alternatively, the learned counsel contended

that even if the termination of the lease is not valid, the plaintiffs are entitled to reasonable rent. I am unable to agree with this contention either.

Only in a case where the lessee has put the land for any use other than that for which it was leased, the lessor would be entitled to claim reasonable

rent But, in a case where it was not the case of the landlord that the lessee has put the land for a different use, he is entitled only to the contractual

rent. The contractual rent in this case as seen from Ex. A-2 is Rs. 120/- per year. Accordingly, there will be a decree for a sum of Rs. 360/-

towards past rent. Subject to the payment of the court fees, the plaintiffs will also be entitled to the rent as the rate of Rs. 120/- per year from the

date of suit till date of decree. The second appeal is accordingly allowed. The judgment and decree of the lower appellate court are set aside. The

suit for eviction is dismissed, and the prayer for recovery of arrears of rent and future rest as stated above is granted to the extent mentioned

above. There will be no order as to costs.