Saraswathi Ammal vs Ponniah Thevar

Ratnam, J.—This second appeal and the civil revision petition arise out of O.S. 188 and 160 of 1976 respectively on the file of the District

Munsif, Srivaikuntam. The first suit, namely, O.S. 188 of 1976 was for the recovery of a sum of Rs. 4237-50 towards arrears of lease for two

crops, namely pisanam and kar 1975 while, in O.S. 160 of 1976 a claim was made for the recovery of a sum of Rs. 2,119-75 towards arrears of

lease for Kar 1974. There is no dispute that the lands in question of an extent of one acre and 13 cents belong to Saraswathi Ammal, the appellant

in the second appeal and the petitioner in the civil revision petition and that the respondent had been in enjoyment of those lands as a tenant. He

had agreed to measure 6 kottahs of paddy per kuruni per crop. Since June, 1970, the tenant had raised kodikal and plantain crop on the lands in

question without the consent of the landlady. Under these circumstances, Saraswathi Ammal claimed that she was entitled to recover enhanced

rent from the tenant in respect of his cultivation of kodikal and plantain crops on the lands. The value of the kodikal and plantain crops was

computed with reference to the prevailing price and the suits were laid for the recovery of the amounts as set out earlier. The respondent admitted

that he had raised plantain crops or kodikal crops on the lands, but contended that his liability in the matter of payment of rent was only six kottahs

per crop for every kuruni and that the landlady is not entitled to claim anything more. The respondent also expressed his readiness and willingness

to pay the rent at that rate for the crops raised by him.

On a consideration of the oral as well as the documentary evidence, the learned District Munsif, found that the tenant was at liberty to raise any

crop which would be to his best advantage, but that at the same time, he cannot be permitted to enrich himself at the expense of the landlady, and,

therefore, the landlady is entitled to claim enhanced rent in respect of the cultivation of crops by the tenant different from what had been agreed to

be cultivated. In the view, the learned District Munsif granted a decree for a sum of Rs. 4,237-50 in O.S. 188 of 1976 and a decree for Rs. 2118-

76 in O.S. 160 of 1976. Aggrieved by this, the respondent in this second appeal and the civil revision petition preferred A.S. Nos. 147 and 146 of

1977 respectively to the Additional Subordinate Judge, Tuticorin. The learned Subordinate Judge found that the agreed rate of rent was only six

kottahs of paddy per crop, that the respondent was entitled to raise any crop he liked, but that as the rent has been fixed at six kottahs of paddy

per crop, the landlady was not entitled to recover anything more. In that view, the learned Subordinate Judge modified the decree in O.S. 188 and

160 of 1976 respectively by reducing the amount payable by the respondent herein to Rs. 2,400 and Rs. 1,500 respectively. Challenging the

correctness of this, the landlady has come up before this Court.

The main contention of the learned counsel for the landlady is that in view of the admitted cultivation of kodikal or plantain crops by the

respondent, the landlady is entitled to enhanced rent and the circumstance that there had been an earlier fixation of rent payable would not disentitle

the landlady from claiming such enhanced rent, as the benefit reaped by the tenant should also be made available, at least in part, to the landlady.

On the other hand, the learned counsel for the respondent would submit that having regard to the terms of the contract between the parties, the

landlady is not entitled to claim anything more than six kottahs of paddy per crop and no additional liability can be cast on the respondent in

respect of that.

The controversy in this case thus centres round the question whether, having regard to the admitted raising of kodikal and plantain crops on the

lands of the landlady by the respondent, he is liable to share that income with the landlady. Indeed, this is settled by two decision of this Court. The

first is, Annavi Moopan v. Munia Moopan 1969-2-M.L.J. 379=81 L.W. 646. In that case also there was a fixation of fair rent. But, subsequently,

the tenant raised sugar-cane crops without the permission of the landlord and declined to pay increased rent in respect of the use of the lands for

purposes of sugar-cane cultivation. When the landlord sued for recovering the amounts based on the estimated rent, the tenant pleaded that the

landlord was not entitled to anything more than the agreed rent. The trial court took the view that in the absence of any fresh agreement between

the parties, the parties would be bound by the terms of the contract and that no enhanced rent can either be demanded or directed to be paid. On

revision to this Court, Ramprasada Rao, J. (as he then was) after referring to the principles applicable in such cases, held that it would be the very

negation of the rights of the landlord, if the tenant were allowed to continue to remain in possession of the holding and raise a main crop like sugar-

cane to the detriment of the landlord and without his authority, and yet refuse a lawful demand for payment of increased rent by the landlord. In

doing so, the learned Judge relied upon an earlier unreported decision in C.R.P. 1894 of 1962, rendered by Natesan, J., who was also of the view

that the Courts, in such circumstances, should consider what the fair rent for the land in question is. To similar effect is the decision rendered by

Raghavan, J. in Thangayya Nadar v. Ulaganatha Pillai S.A. 1320 of 1970 dated 19th July, 1972-1972 2 M.L.J. 37 (S.N.). There again, the

learned Judge was of the view that where Ollai plantains and vegetables are allowed to be grown on lands, the civil court has jurisdiction to fix the

fair rent. Though the court below, on paragraph 10 of its judgment, had referred to Annayimoopan v. Munia Moopan 1969-2-M.L.J. 379=81

L.W. 646 it was of the view that that decision will apply only to cases where the rent payable by the tenant has not been fixed under the

agreement. This ground of distinction pointed out by the lower appellate Court is an obvious error for, even in the decision in Annavi Moopan v.

Munia Moopan 1969-2-M.L.J. 379=81 L.W. 646 there was an earlier fixation of fair rent in suppression of the contract already entered into

between the parties. In other words, the rights of parties were governed, though not by a contract, but by an order of Court and even in such a

case, this Court had held that the landlord would be entitled to enhanced rent. It is, therefore, clear that the question of the landlord becoming

entitled to claim enhanced rent does not really depend upon the terms of the contract entered into between the parties but really on the question

whether the tenant should be permitted to make an unjust enrichment to the detriment of the landlord. On that basis, though in this case the rent had

been fixed at the time of the lease at 6 Kottahs of paddy per kuruvai per crop, yet, in view of the admitted raising of kodikal and plantain crops by

the respondent, the landlady would be undoubtedly entitled to realise a fair and a reasonable rent and not merely the rent stipulated under the terms

of the contract between the parties. The lower appellate Court was, therefore, in error in modifying the decrees granted by the trial court.

Consequently, the second appeal and the civil revision petition are allowed. The judgment and decrees granted by the lower appellate Court are

set aside and those of the trial court are restored. There will be no order as to costs both in the second appeal and the civil revision petition.