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Judgment
Ramanujam, J.—All the above appeals are dealt with together as they raise common question of law and arise out of suits filed by the Appellant herein for the relief though against different tenants.
The facts in all the appeals are substantially the same. Hence it is enough if the facts in Second Appeal No. 2436 of 1976 which arises out of the suit, Original Suit No. 52 of 1970 alone are set out for the purpose of appreciating the contentions, factual as well as legal advanced by the Counsel on either side.
Original Side suit No. 52 of 1970 has been filed by the Appellant against one Abdul Hamid for recovery of possession of the property in his possession and enjoyment and for directing an inquiry into the past and future mesne profits from the year 1965-66 till delivery of possession. The case as set out by the Plaintiff in its plaint is as follows:
The Plaintiff is the owner of the suit properties comprised in Resurvey Nos. 137, 132, etc., of Manangorai vattam, Thanjavur district. Parta for the suit properties stands in the name of the Plaintiff. During the 19th century the affairs of the Plaintiff temple were under the control of the East India Company represented by the collector of Thanjavur. The then collector leased the suit property under what is known as Taram Paisal Muchalika to one Maruthamuthu Sathurar on 18th February 1839 on condition that the lessee should measure 105, Kalams towards swami begum to the Plaintiff (ii) pay the land revenue due to Government (iii) render service to the temple on festive occasions and pay all customary dues and fasli jasti in respect of lands brought under cultivation Later, one Venkatachalam Sethurar executed another muchalika on 1st January 1849 to the Tahsildar of Thiruvaiyaru undertaking to pay 107 Kalams 3 murakkals of paddy. After the death of Venkatachalam the entire lands came to be enjoyed. by his heirs and others. The collector of Thanjavur later handed over the properties to a Hindu trust along with the temple as per the directions of the Board of Revenue. One Somasundaram Thambiran, trustee of the temple, during early 20th Century filed a suit, Original Suit No. 41 of 1912 on the file of the Subordinate Judge'' Court Thanjavur for enhancement of rent against, Rethinaswami, son of Venkatachal Sethurar and others. The said suit was, however, subsequently withdrawn on 14th February, 1914. After the withdrawal of the suit, the Defendants therein executed a registered deed of settlement on 15th August, 1915 admitting the title of the Plaintiff to the suit properties and under taking to pay 75 Kalama of paddy over and above the rent covered by the muckalika of 1st January, 1849 to the temple. The persons, who were parties to the Original Suit No. 41 of 1912 and to the settlement deed, dated, 16th August 1915 seem to have sold their right to various persons including the Defendant in this suit. The managing trustee of the Plaintiff-temple not satisfied with the lease amount paid by the tenant for the land in his possession filed F.R.P. No. 169 of 1965 for fixation of fair rent for the properties, before the Rent Court. The Rent Court by its order, dated 31st December, 1966 dismissed the petition holding that as there is dispute as to the existence or otherwise of the relationship of landlord and tenant between the temple and the party in possession of the properties, the fair rent petition is not maintainable. Taking note of the decision of the Fair Rent Court, the Plaintiff issued notice calling upon the Defendant to surrender possession of the property on the ground that he had forfeited the tenancy rights as he had denied the title of the Plaintiff to the suit properties.
The Defendant resisted the suit contending that he is entitled to permanent right of occupancy in the suit properties and therefore, liable to pay only the fixed rent, that the Plaintiff is stopped from claiming possession or menses profits, that there is no valid notice to quit, that the Defendant has perfected ownership by adverse possession to the properties and that, the right of the Plaintiff to the suit properties has become barred by adverse possession.
No oral evidence had been adduced by the parties, but they have marked their respective documents. The trial Court held (1) that the Defendant has not acquired permanent occupancy right, (2) that the ascertain of a permanent occupancy right before the Rent Court cannot amount to a denial of landlord''s title and (3) that, in any event, there has been no valid notice determining the tenancy. In this view, the trial Court dismissed the suit. On appeal by the Plaintiff the lower appellate Court agreed with the finding of the trial Court that the Defendant has no permanent rights of occupancy, that the assertion of permanent occupancy right by tenant will not amount to denial of landlords title and the Plaintiff cannot seek possession of the property and that, there was no valid notice terminating the tenancy.
The Plaintiff Sri Vedapuriswaraswami, Thiruvedikudi, in the suit Original Suit No. 52 of 1970 filed Second Appeal No. 2436 of 1976. The other second appeals have also arson out of similar suits filed by the same Plaintiff Sri Vedapurisweraswami, Thiruvedikudi against various other persons and which have also been dismissed by the Courts below.
Thus the common questions that arise in these second appeals are:
(1) Whether the Respondents in all these second appeals have denied the title of the Appellant in respect of the properties in their respective possession? and
(2) Whether there has been a valid notice terminating the tenancy?
So far as the second point relating to the validity of the notice terminating the tenancy is concerned, the learned Counsel for the Appellant contends that either Section 106 or Section 107 or Section 111 of the Transfer of Property Act has no application to an agricultural lease and that therefore, there is no necessity to terminate the tenancy by issuing a notice as contemplated u/s 106 or a notice of forfeiture as contemplated u/s 111 of the said Act. The learned Counsel appears to be right in his submission. Section 117 of the Transfer of Property Act says that none of the provisions in Chapter v. of the Transfer of Property Act apply to leases for agricultural purposes except in so far as the State Government, may, by notification published in the official gazette, declare all or any of such provision to be so applicable in the case of all or any of such leases, and such notification shall not take effect until the expiry of six months from the date of its publication. It is not the case of the Respondents that any notification has been issued as contemplated is Section 117 of the Act applying the provisions of Sections 106, 107 and 111 of the Act to any of these leases which the Appellant is said to have entered into with the Respondents. In the absence of the notification referred to in Section 111 it has to be taken that Section 106, 107 and 111, which occur in Chapter v. of the Act will not govern agricultural leases in this case. Therefore, the non-issue of a valid and proper notice either u/s 106 or u/s 111 of the Act, will not stand in the way of the Appellant seeking to recover possession of the properties from the Respondents. If any precedent is necessary to support the view I have taken, the decision of Somasundaram J., in Damodara Padayachi v. Louis Rajabather (1974) 1 M.L.J. 9 (S.N.) may be referred to In the case it was pointed out:
Usage or local law generally governed agricultural tenancies and to such tenancies Section 106 (Transfer of Property Act) did not apply unless made applicable by notification u/s 117. In other words notice u/s 106 was not necessary in respect of agricultural leases unless it was made applicable by a specific notification u/s 117. There was no such notification in this case. Further the lease deed said that no previous notice was necessary for terminating the lease.
However, the submission, of the learned Counsel for the Appellant on the first point that the Respondents have suffered forfeiture of their tenancies by their denial of the landlord''s title cannot be accepted. The submission of the learned Counsel on that aspect of the case is that the Respondents by asserting rights of permanent occupancy in relation to the lands in their occupation should be taken to have denied the title of the landlord and such denial of landlord title will automatically result in the forfeiture of their tenancy rights. The learned Counsel refers to the stand taken by the various Respondents (Defendants) before the Rent Court in which the Appellant has filed applications for fixation of fair rent in relation to the occupation of the various Respondents. In answer to the fair rent petitions filed by the Appellant landlord, the various tenants have set up a plea that they are not cultivating tenants of the Devasthanam within the meaning of Tamil Nadu Act LVII of 1961 and therefore, the petitions for fixation of fair rent before the Revenue Court treating them as cultivating tenants are not maintainable and that, by under the arrangement they have to pay await begum permanently to the Devasthanam and by virtue of their long possession they should be taken to have acquired permanent occupancy rights. The fair Rent Court enhanced the rent payable by the tenants. But in revision, the Sub-Court, Thanjavur had held that as the tenants have not been shown to be cultivating tenants as defined under Act LVII of 1961, the fair Rent Controller had no jurisdiction to fix fair rent. In that view, the fair rent petitions filed by the Devasthanam before the Rent Court dismissed. Thus, it is seen that the conduct of the Defendants in the Fair rent proceedings was that they have acquired permanent rights of occupancy in relation to the lands in their occupation and that, they are bound to pay a fixed rate of rent. The question is, whether this stand taken by the Respondents before the rent Court will amount to a denial of landlord''s title. As already pointed out, both the trial Court as well as the lower appellate Court have concurrently held that the said conduct on the part of that tenants cannot be construed as a denial of landlord''s title and, therefore, the tenancies in their favour cannot be said to have been forfeited. The learned Counsel for the Appellant contends that the concurrent view taken by the courts below that there have been no denial of landlord''s title by the Respondents in these second appeals and therefore, they have not suffered any forfeiture of the tenancies, cannot legally be sustained. In support of the submission that the assertion of permanent occupancy right by a tenant as against a landlord will amount to denial of landlord''s title, reference has been made to a judgment of Ramachandra Iyer, J., as he then was in Kanchi Kamakoti Mutt by Agent R. Seshaiya Sastrigal Vs. A. Alagu Ambalam (deceased) and Others, . In that case suits were filed by the landlord against the tenants for recovery of possession of certain inam lands, with mesne profits on the basis of tenancy, which had been determined by efflux of time. The inam has been recognized and confirmed by the British Government in favour of the Plaintiff. In these suits, the Defendants contested the Plaintiff''s claim on the ground that the inam grant could not bind the pre-existing kudiwaram rights which they had claimed, that the lands were suit pannier lands as alleged by the Plaintiff, that they did not take the lands on lease from the Plaintiff and claimed that the lands belonged to them in kudiwaram right ancestrally and absolutely. The defense taken in those suits was taken to constitute a complete denial of the landlord''s title to lease the properties and to eject the tenants. RamaChandra Iyer, J. (as he then was.) held that there has been a denial of the landlords title by the Defendants in those suits and they have suffered forfeiture as a result of such denial. The reasons given in the judgment for such conclusion are:
The Defendants had already denied the title of the landlord. Even in their written statements they have categorically set up title to kudivaram interest in themselves. That means they have set up title against the landlord in regard to a substantial portion of the property, namely, the kudivaram interest. An assertion of title to the kudivaram right would mean a clear denial of the landlord''s title in regard to that interest. It is true that a mere setting up tenant may put in certain circumstances amount to a disclaimer right is not a case of mere permanent tenancy. It is something more amounting to an interest in the land, transferable and heritable.
The learned Judge referred to the following passage in Halsbury''s Laws of England, Volume XX (Second edition) Article 281.
There is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lesson and that if this is done the lesson may re-enter for breach of this implied condition. In the case of a tenancy from year to year, either in writing or verbal, the effect of such denial of title is that the tenancy may be forthwith determined by the landlord without notice to quit, and also note (m) to that article which is to the following effects;
Similarly wherein proceedings between himself and the lesson the lessee either as Plaintiff or Defendant sets up an adverse title in himself a case of forfeiture arises.
It is no doubt true that the said decision supports the legal submission made by the learned Counsel for the Appellant. However, the learned Counsel for the Respondents refers to a series of decisions of this Court taking a contrary view by a mere assertion that he has acquired a permanent occupancy right in relation to lands in his occupation, a tenant cannot be said to have denied the title of the landlord. The earliest of the decisions is a judgment by a Division Bench of the Court consisting of Sadasiva Ayar and Philiips JJ. in Raman Nair v. Kunchi Kolandan Mudaiar (1915) 2 L.W. 941 reported in wherein it has been held;
Assertions of title as owner by a person having rights in land of a very substantial kind should not be treated as denial landlord''s title so as to work a forfeiture of the tenant right.
The next decision is the one reported in Brahmayya v. Sundaramma ILR (1948) Mad. 757 (F.B.) which is a Full Bench decision. In that case, resisting a suit for recovery of possession by a landlord, the Defendant filed a written statement claiming permanent occupancy or Kudiwaram right. The question which came up for consideration was whether such a claim to the permanent occupancy and kudiwaram right will amount to a denial of landlord''s title so as to result in the forfeiture of the tenancy in favour of the Defendant. The Full Bench took the view that the owner of a Kudiwaram right is the tenant of the owner of the mealworm right, using the words landlord and tenant in their widest sense, that a permanent right of occupancy in land in India is a right subject to certain conditions, of a tenant to hold the land permanently which he occupies and that, therefore, when a defense of permanent occupancy right is raised to a claim for possession, there is necessarily, an admission of a tenancy between the parties since a claim to such right could not and would not be made, save upon the basis of the position of landlord and tenant being in existence. Thus, the Full Bench has taken the view that the claim to permanent occupancy rights naturally involves an admission that the relationship of landlord and tenant exists between the Plaintiff and the Defendant and therefore, the conduct of the Defendant in setting up permanent occupancy right results in the admission of the landlord''s title rather than disputing the same.
In Sri Vedapuriswaraswami v. Sheik Farid 85 L.W. 577 following the judgment of the Full Bench in Brahmmayya v. Sundaramma ILR (1948) Mad. 757 (F.B.) while disposing of the second appeals filed by the same Appellant as against similar Defendants'' it has been held that the Defendants had only averred that the Plaintiff is not the landlord and the provisions of Madras Public Trusts Act, 1961 (Act LVII of 1961) sought to be invoked will but apply and that, there is no person who will strictly come within the meaning of tenant as defined in Act LVII of 1961 and those averments cannot be taken as amounting to a denial of landlord''s title to the lease in question and that, there is no disclaimer if that tenants set up permanent tenancy, although they repudiate the particular holding which the lesson attributes to them and they do not claim the lesson''s right to receive the rents, nor do they renounce their character as lessees. The learned Judge also held that, even if the averments amount to a denial of landlord''s title still it cannot be taken to be willful within the meaning of Section 19 of that Act. viz., Act LVII of 1961. The said decision of L.K.N. Mudaliar J., was rendered on identical, set of facts as in this case. It has to be noted that the decision of the Division Bench in Raman Nair v. Kunchi Kolandan Mudaliar (1915) 2 L.W. 941 and the decision of the Full Bench in Brahmayya v. Soundaramma ILR [1948] Mad. 757 (F.B.) have not been referred to by Ramachandra Yer, J., as he than was, in Kanchi Kamakoti Mutt by Agent R. Seshaiya Sastrigal Vs. A. Alagu Ambalam (deceased) and Others, whatever it be, the decision in Brahmayya v. Sundaramma [1948] Mad. 757 (F.B.) being a decision of the Full Bench which binds this Curt, I have to hold that there is no denial of landlord''s title to the suit property by the Defendants before the fair rent Court and that, therefore there is no forfeiture of the Defendants'' tenancy rights. In this view of the matter, though the Appellant succeeds on the second point, the suits for recovery of possession on the ground that the Defendants have forfeited their tenancy right''s have to fail and have been rightly dismissed by the Courts below.
In the result, these second appeals fail and they are dismissed accordingly. However, there will be no order as to costs.
Before parting with these appeals, some observations are necessary with regard to the decision rendered by the subordinate Judge''s Court Thanjavur in Civil Miscellaneous Appeal Nos. 75, 76, 77, 78 and 86 of 1966 arising out of fair rent petitions failed by the appellate against identical tenants, which judgment has been marked as exhibit A-13 in this case. The said judgment has already been referred to, in that judgment, the Sub-Court dismissed the fair rent petitions filed by the Appellant and set aside the orders fixing fair rent by the Rent Court on the ground that as the tenants disputed their status as cultivating tenants, the fair Rent Court has no jurisdiction to entertain the fair rent petitions. It is because of that dismissal the Appellant is not able to have the fair rent fixed in relation to the suit properties. Merely because the tenants raised the plea that they cannot be taken to be cultivating tenants as defined under Act LVII of 1961, the fair rent petitions cannot be dismissed on that ground. If such a contention were raised, it is for the fair Rent Court or the appellate authority to decide the question as to whether the Respondents in the fair rent petitions are cultivating tenants as defined in Act LVII of 1961 and then decided the fair rent petitions on merits, if it is found that the Respondents are cultivating tenants as defined in that act. Merely because the Respondents have taken up the plea that they are not cultivating tenants as defined in the Act, Court cannot dismiss the fair rent petitions without going into the question as to whether the Respondents are cultivating tenants or not. The sub Court, in fact, in dismissing the fair rent petitions under exhibit A-13, has clearly committed an error. However, that order passed by the Sub Court, Thanjavur will not prevent the Appellant from filing fresh petitions for fixation of fair rent and invite the Court to decide the question as to whether the Respondents herein are cultivating tenants as defined in Act LVII of 1961 and whether fair rent should be fixed in respect of the lands in their occupation.