Sethu Padayachi vs Periaswami Padayachi

V. Ramaswami, J.—The plaintiff is the appellant. He filed a suit for recovery of possession of the suit property after removal of the

superstructure put up by the defendant and for past mesne profits of Rs. 300 and costs. The facts are these:

The plaintiff purchased the suit property by a registered sale deed, dated 1st April 1960, executed by Madurambal Anni, guardian of minor

Chidambaranathan. The total extent of the property is about 87 cents of land with a number of trees thereon. In a portion of the suit property the

defendant has constructed a thatched house and is residing there with his family with the permission of the plaintiff''s vendor''s father. The defendant

was paying paguthi in respect of the same. There are several fruit bearing and other trees in the suit property which is of an extent of 87 cents and

they belong to the plaintiff by purchase. The usufruct of the trees was leased to defendant by the vendor but he had no right to the trees. After the

purchase, the plaintiff demanded vacant possession of the suit property and thereafter had filed this suit. The defendant pleaded that he and his

ancestors were in occupation of the suit property by putting up thatched sheds and making repairs to them and paying paguthi regularly, that the

entire suit property was included in the ""kudiyiruppu"" and that he is entitled to the benefits of Madras Act 38 of 1961. The trial court held that

though the defendant was entitled to the benefit of Madras Act 38 of 1961, the ""Kudiyiruppu"" was only 15 cents of the suit property and that he is

liable to be evicted from the remaining portion of the suit property. The trial court also held that the plaintiff was entitled to past mesne profits of

Rs. 300 and future mesne profits at Rs. 100 per annum. He accordingly decreed the suit for possession except regarding the 15 cents for which

the defendant was held to be entitled to claim the benefits of Madras Act 38 of 1961.

On an appeal by the defendant, the learned Subordinate Judge of Mayuram, on an erroneous view, held that the proper thing for the District

Munsif should have been to refer the question of area of the ""kudiyiruppu"" to the authorised officer constituted under Madras Act 38 of 1961 and

not to split the tenancy and that the civil court had no jurisdiction to determine the area of the kudiyiruppu. In that view, he dismissed the suit.

The point for consideration is as to whether the Civil Court has no jurisdiction to decide the area covered by the ""kudiyiruppu"" of a tenant.

S. 2 clause (6) of the Madras Occupants of Kudiyiruppu (Protection from Eviction) Act of 1961 defines a ""kudiyiruppu"" to mean�

the site of any dwelling house or hut occupied either as tenant or as licencees, by any agriculturist or agricultural labourer and includes such other

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

Under S. 3, no person occupying any kudiyiruppu on the 31st March 1959, shall be evicted from such kudiyiruppu and he shall be entitled to

continue to occupy the kudiyiruppu on the same terms and conditions as were applicable to him on such date. S. 4 enables a tenant who has been

evicted contrary to the provisions of the Act to apply for restoration of possession of the kudiyiruppu. S. 5 provides that an owner who wants to

evict any person from his kudiyiruppu may apply to the Authorised Officer. An appeal is provided against the order of Authorised Officer to the

District Collector. S. 11 reads:

No Civil Court shall have jurisdiction in respect of any matter in which the Authorised Officer or the District Collector is empowered by or under

this Act to decide and no injunction shall be granted by any court in respect of any action taken or to be taken in exercise of any power conferred

by or under the Act.

It would be seen from the provisions set out above that the jurisdiction conferred on the Authorised Officer under the Act was only with

reference to the ""kudiyiruppu"". It is only when the area of the ""kudiyiruppu"" is not in dispute, the Authorised Officer will have exclusive jurisdiction.

It may be that the Authorised Officer will have jurisdiction to decide the area of the ""kudiyiruppu"" in an application under S. 4 or S. 5, but that will

be a decision merely on a jurisdictional issue and subject to challenge in a Civil Court. Where there is a dispute as to area covered by the

kudiyiruppu"" the Civil Court will have jurisdiction to decide the issue but the Civil Court cannot grant any relief in respect of the ""kudiyiruppu"". In

respect of the area not covered by the kudiyiruppu, the Civil Court will have jurisdiction to grant the relief. In such a case no question of splitting

the tenancy arises. In this connection reference may be made to the decision in A.P. Arumugha Mudaliar v. Karuppaiyan Uthimandar C.R.P. No.

2000 of 1965. In that case, it was held that the Kudiyiruppu Act and the Cultivating Tenants Protection Act should be harmoniously construed and

so construed, in case where the landlord has made out a case for eviction under the Cultivating Tenants Protection Act, the tenant would be liable

to be evicted from the land but not from his ""kudiyiruppu"". In the present case no claim under Cultivating Tenants Protection Act was made. The

defendant-tenant contended that the entire extent of 87 cents was included in his ""kudiyiruppu"" while the plaintiff contended that the ""kudiyiruppu

was only in a portion of suit site. The Civil Court has the jurisdiction to decide that dispute.

As already stated, the learned District Munsif held that the ""kudiyiruppu"" was only 15 cents and not the entirety of the suit property. He relied,

on the evidence of D. Ws. 1 and 2 in deciding this issue. In determining this area of the kudiyiruppu he has also made provision for cart-shed,

cattle-shed and manure pit. There are no grounds to interfere with this finding. The second appeal is allowed, the decree and judgment of the lower

appellate court are set aside and the decree of the trial court is restored. Parties to bear their costs. No leave.