Sri Panchanatheeswaraswami Devasthanam vs Abdul Majid and Others

Ismail, J.—The Plaintiff in Original Suit No. 42 of 1964 on the file of the Court of the District Munsif of Tiruvaiyaru, who lost before the Courts below, is the Appellant herein. The Plaintiff-Devasthanam is admittedly the owner of the suit properties, namely (i) an extent of 2 acres and 32 cents in R.S. No. 321/1; (ii) an extent of 5 acres and 30 cents in R.S. No. 321/2; and (iii) an extent of 7 acres and 26 cents in R.S. No. 321/3 in Tiruvaiyaru, which have been described as items 1 to 3 in the plaint schedule properties. Of these three items, item 1 is described as nanja, while items 2 and 3 are described as punja. All these three items of properties were leased out by the Appellant to the Respondent herein under exhibit A-7, dated 18th February 1951 for a period of three years on the stipulation of a rent of 72 kalams of paddy with respect to nanja lands and a cash rent of Rs. 800 with respect to punja lands. Subsequently, it is admitted, that the said rent was reduced to 54 kalams of paddy and Rs. 600 cash. The Appellant herein instituted the present suit for recovery of possession of the suit properties and for arrears of rent with future profits. The defence put forward by the Respondent was that under Madras Act LVII of 1961, namely, the Madras Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961, hereinafter referred to as the Act., he was entitled to continue in possession and that the civil Court had no jurisdiction to evict him from the land in question. The Courts below have accepted this defence of the Respondent and dismissed the suit. The Plaintiff has come up to this Court with the present second appeal.

It is necessary to set out the respective contentions of the parties, before I deal with the question of law that arises in this case. As far as the Appellant is concerned in paragraph 4 of the plaint it was stated that R.S. No. 321/1 comprising 2 acres 32 cents were originally dry lands but later on cultivated as wet and for some years past, the said lands were again converted into plantain tope. As far as R.S. No. 321/2 and R.S. No. 321/3 are concerned, it was stated in the same paragraph that they were dry lands and had been converted into tope containing a large number of coconuts, mango and palmyrah trees. Exhibit A-7 lease deed itself refers to the existence of 252 yielding coconut trees and 541 coconut plants on items 2 and 3 of the suit lands. Based upon these allegations, the case of the Appellant was that the lands were topes and, therefore, they were outside the scope of the Act and consequently it was entitled to recover possession thoreof from the Respondent herein in a civil court. As against this the case of the Respondent was that the lands were not topes as defined in the Act consequently he was entitled to continue and Terrain in possession of the lands and that the civil Court had no jurisdiction to evict him. The question for consideration is, which of these two rival contentions is correct.

As far as the facts are concerned, there is not much of a controversy. Item 1 of the suit properties is admittedly nanja and has been described so. Therefore by no stretch of imagination item 1 of the suit properties can be characterized to be a tope as defined in that Act and, therefore, the Appellant, having regard to Section 18 of the Act, cannot seek to recover possession thereof from the Respondent herein in the civil Court. Mr. M. S. Venkatarama Ayyar, learned Counsel for the Appellant, conceded this position and therefore did not press the appeal with regard to item 1 of the suit properties. Consequently, the question has to be considered with regard to items 2 and 3 of the suit properties which have been described as dry lands in the lease deed itself and which, according to the Appellant, constitute topes as defined in the Act, and are therefore exempt from the operation of the Act.

For the purpose of considering this question, it is necessary to refer to certain provisions of the Act. The term agriculture has been described in Section 2(1) of the Act thus:

''agriculture'' includes--

(i) horticulture;

(ii) the raising of crops, grass or garden produce;

(iii) the use by an agriculturist of land held by him of (or) part thereof for grazing;

(iv) the use of any land for the purpose of raising manure crops;

(v) dairy farming;

(vi) poultry farming;

(vii) livestock breeding; and

(viii) growing of trees.

Section 2(15) of the Act defines the expression land in the following terms:

''land'' means agricultural land that is to say, land which is used or capable of being used for agricultural purposes or purposes subservient thereto and includes forest, pasture land, plantation, orchard and tope but does not include house-site or land used exclusively for non-agricultural purposes.

Section 2(18) of the Act defines the expression orchard as follows:

''Orchard'' means an enclosure or assemblage of fruit or nut-bearing trees, constituting the main crop therein, whether of spontaneous or artificial growth and includes nandavanams, but does not include trees on such bunds as are not within or adjunct to such enclosure or assemblage.

Section 2(29) of the Act defines the expression tope thus:

''tope'' means any land containing groups of fruit or nut-bearing trees including Palmyrah trees, constituting the main crop in such land, whether of spontaneous or artificial growth and includes orchards, but does not include trees on such bunds as are not within or adjunct to such groups of trees.

Section 18 of the Act is:

Subject to the provisions of Sections 7, 15(2) and 19 no cultivating tenant under any public trust shall be evicted from his holding or any part thereof by or at the instance of the public trust.

Explanation.--In this section, ''holding'' means the parcel or parcels of land held by any person as a cultivating tenant.

Section 51 (iv) of the Act is:

Nothing contained in this Act shall apply to-- (iv) lands converted into orchards or topes or arecanut gardens, whether or not such lands are continguons or scattered:

Provided that such lands shall be exempt only so long as they continue to be orchards, topes, or arecanut gardens.

It can be seen immediately that the definition of the term land contained in Section 2(15) is inclusive in the sense it includes forest, pasture land, plantation, orchard and tope. Whenever the statue uses land in contradistinction with orchard and tope the definition of land cannot include orchard or tope at all, because section opens by stating, In this Act, unless the context otherwise requires. Therefore, once Section 51(iv) of the Act exempts orchards or topes or arecanut gardens from the scope of the Act, itself, the expression land occurring in the explanation to Section 18 necessarily must exclude orchards, topes and arecanut gardens. Hence Section 18 will have no application to orchards, topes and arecanut gardens and it will apply only to agricultural land, that is to say, the land which is used or is capable of being used for agricultural purposes or purposes subservient thereto. Consequently, the question reduces itself to this, namely, whether the suit items 2 and 3 are topes or orchards or not.

Both the Courts below have held that the Respondent had not converted the agricultural lands into orchards or topes and therefore the suit items 2 and 3 did not constitute topes or orchards as defined in the Act. I am clearly of the opinion that the Courts bow misdirected themselves as to the scope of Section 51(iv) of the Act. The word, conversion is not a word of art and it has not been used in any technical sense in Section 51(iv) of the Act. The combined effect of Sections 2(15), 2(18) and 2(29) is that once an agricultural land, that is to say, a land which is used or capable of being used for agricultural purposes subservient thereto, is put to the use of raising fruit or nut bearing trees constituting the main crop therein, the said land immediately becomes orchard or tope as defined in Section 2(18) and Section 2(29). Once the land as defined in Section 2(15) so becomes an orchard or tope as defined in Section 2(18) and 2 (29), the land becomes converted into orchard or tope as contemplated by Section 51(iv) and, therefore, is outside the scope of the Act, in view of the Section 51(iv). Section 2(18) and Section 2(29) themselves do not refer to any conversion and the said word occurs only in Section 51(iv) which does not say by whom the conversion should have taken place and, therefore, the Courts below erred in coming to the conclusion that the exemption will be available only when the conversion was effected by the tenant.

As far as the present case is concerned, even on the date when the Respondent took the lands on lease they were already containing fruit or nut-bearing trees, constituting the main crop therein. Consequently, there was no question of conversion of the lands by the tenant himself. On the other hand, when the lands even on the date of the lease, happened to be an assemblage of fruit or nut-bearing trees, constituting the main crop therein, the question is whether the same can be said to fall within the scope of the definition orchard, or lope as contained in the Act. In my opinion, it is wholly immaterial as to who converted the land into orchard or tope and when the conversion took place. All that the Act says is that so long as the land remains as an orchard or tope as defined in the Act, that will fall outside the Act. This provision has been deliberately introduced by the Legislature with a view to avoid confusion or complication. If the Act has simply exempted topes and orchards from the operation of the Act, a question may possibly arise as to at what point of time the land should be an orchard or tope so as to attract the exemption. Suppose on the date when the Act came into force, certain piece of land was an orchard or tope and the Act has simply exempted an orchard or tope from the operation of the Act. In such a case, a question may possibly arise, if, subsequent to the commencement of the Act, the land is used for agricultural purposes as defined in Section 2(1) of the Act, whether the land will continue to remain outside the scope of the Act or the moment the land was put to such use, it will come within the scope of the Act. The converse case also will give rise to such a question. It is only for the purpose of avoiding any doubt or difficulty in the application of the Act in this behalf, Section 51(iv) has expressly stated,

that such land shall be exempt only so long as they continue to be orchards, topes or arecanut gardens.

thereby contemplating the possibility of the land being put to different uses referred to above from time to time. Consequently, in my opinion, it is wholly immaterial as to who put to the land to the different uses referred to above and at what point of time it was so put and all that is relevant is that so long as agricultural land is used as an orchard or tope in the sense the land has been planted with fruit or nut-bearing trees, the same constituting the main crop therein, the said land will be outside the scope of the Act. In this particular case, admittedly, even on the date of the lease, suit items 2 and 3 contained only cocoanut and mango trees and nothing else, because the lease deed itself in the description of the properties expressly refers to the existence of the cocoanut and mango trees on these lands. The Respondent as D.W. 1 has stated in his evidence:

I cannot give the extent of suit item No. 2. Only mango and cocoanut trees are in this item. I cannot say in what extent these trees are. I cannot give the exact number of mango and cocoanut trees. I cannot give the number of trees in and the extent of the suit item 3.

In addition to this, there is Exhibit A-14, a communication sent by the Respondent to the Appellant on 30th July 1953. In that communication he has stated that as a result of the cyclone on 30th November 1952, all the mango trees, cocoanut trees and cocoanut plants on the suit lands had fallen and therefore he wanted permission of the Appellant to plant afresh cocoanut as well as mango plants. These materials clearly establish that the suit items 2 and 3 are only topes or orchards as defined in the Act As a matter of fact, the learned Subordinate Judge himself states in paragraph 7 of his judgment;

If at all, these two items can only be deemed as orchards if not thopes.

Having regard to these materials, I do not have the slightest hesitation in coming to the conclusion that the suit items 2 and 3 are outside the scope of the Act, by virtue of the operation of Section 51(iv) of the Act. Consequently the Respondent herein cannot seek the protection of the Act in respect of these two items and the Appellant is entitled to recover possession thereof from him.

There was yet another argument that was advanced on behalf of the Respondent before the Courts below which found favour with the Courts below and that was that in any event the civil Court had no jurisdiction to decide whether these items 2 and 3 were orchards or topes or not. I am of the opinion that the Courts below went wrong in holding that the civil Court had no jurisdiction. The General principle is that exclusion of the jurisdiction of the civil Courts is not to be readily inferred and such exclusion must be provided for expressly or by necessary implication by the concerned statute. One way of finding out whether the jurisdiction of the civil Court is excluded either expressly or by necessary implication is to see whether the particular subject-matter has been entrusted to the exclusive jurisdiction of any other statutory authority. Only if the right to decide whether a particular land is an orchard or tope is left to the exclusive jurisdiction of the Authorised Officer under the Act, it can be said that the civil Court has no jurisdiction. If at all the question arises the Authorised Officer will have to decide whether a particular piece of land is an orchard or tope or not, as incidental to determining the question whether the Act applies to that land and consequently whether the tenant is entitled to the protection of the Act or not. There is no provision in the Act '' expressly referring such determination by the Authorised Officer and making such determination final. Therefore, it cannot be said that a decision on the question whether a particular land is an orchard or thope as defined in the Act is left to the exclusive jurisdiction of the Authorised Officer under the Act and hence the civil Court has no jurisdiction, to decide the said question. Under these circumstances, I hold that the civil Court has jurisdiction to decide, when a dispute arises, whether a particular piece of land leased to a tenant is an orchard or tope as defined in the Act and, therefore, it is outside the scope of the Act or not.

As I have pointed out already, the Appellant claimed arrears of rent also. As against this, the Respondent contended that the rents were not in arrears. Having regard to the materials available, I am unable to hold that the Respondent was in arrears of rent with regard to suit items 2 and 3. However, since I am holding that the Appellant herein is entitled to recover possession of the suit items 2 and 3 from the Respondent herein, the Appellant will be entitled to mesne profits in respect thereof from the date of the suit till delivery of possession, which will be determined in proceedings under Order XX, Rule 12, Code of Civil Procedure.

Under these circumstances, the second appeal is allowed in part and the suit instituted by the Appellant herein will be decreed as prayed for with regard to the recovery of possession in respect of suit items 2 and 3, with future mesne profits from the date of suit till delivery of possession. The parties will bear their respective costs throughout. No leave.