Thiagaraja Sendar vs Sri Pasupatheswararswami Devasthanam

V. Balasubrahmanyan, J.—This second appeal raises a point about the application of the provisions of Section 51(iv) of the Tamil Nadu

Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961, (Tamil Nadu Act LVII of 1961). The appellant Thiagaraja Sendar

obtained a lease of a tope in Govindakudi village which belongs to Sri Pasupatheswararswami Devasthanam, Avur. The lease comprised two

items, a punja land bearing R.S. No. 635 and a coconut tope bearing R.S. No. 612/3. We are concerned in this second appeal only with one item

viz., the tope. A lease deed was executed by the appellant in favour of the Devasthanam on 2nd December, 1964. It was also signed by the then

Executive Officer of the Devasthanam. Under the lease deed, the appellant had to pay Rs. 100 per year as rent for the coconut tope. The lease

deed also provided that the appellant could utilise the inter-space in the tope for punja cultivation. The lease was for a period of three years from

1374 to 1376 faslis. Even subsequent to the expiry of the period of lease the appellant continued to be in occupation of the coconut tope, and he

had been paying the rent as stipulated thereunder to the Devasthanam. Subsequently in July, 1972 the Devasthanam took proceedings for

auctioning the usufructs of the coconut tope for faslis 1382 to 1384. The appellant issued a legal notice to the respondent-Devasthanam claiming

that the intended reauction of the topa was not justified, since he was a cultivating tenant of the tope and could not be evicted therefrom. Following

the suit notice, he filed a suit against the respondent/Devasthanam for a permanent injunction restraining them from interfering with his possession of

the coconut tope. The Devasthanam entered appearance in the suit, and contended that what was leased out is favour of the appellant was only the

right to appropriate the usufructs of the trees, and that, there was no lease of the land as such entitling the appellant to claim rights as a cultivating

tenant. It was further pleaded that the provision in the lease deed which permitted the appellant to cultivate the tope for punja crops was an

unauthorised act by the then Executive Officer and not binding on the Devasthanam.

The principal issue before the trial Court in the suit was whether the appellant was a cultivating tenant of the tope and entitled as such, to

protection from eviction. At the trial, the appellant relied on the provisions of the Tamil Nadu Act LVII of 1961. Section 18 of the Act provided

that 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. The

learned District Munsif who tried this suit rejected the contentions put forward by the Devasthanam. On the issue of fact as to whether the lease

was of the usufruct of the coconut trees alone or of the trees as well as the land inclusive, the learned District Munsif recorded a finding that the

clause in the lease deed enabling the appellant to put the tope under punja cultivation was not a subsequent insertion in the lease deed as alleged by

the Devasthanam, but was a part and parcel of the terms of the lease as agreed to between the parties. The learned District Munsif also held that

the Executive Officer had authority to lease the land of the tope and not merely the usufructs of the trees. He accordingly held that the lease of the

tope, as such, inclusive of the land was binding on the Devasthanam. On this basis, the learned District Munsif held that the appellant as cultivating

tenant of the land was entitled to protection from eviction under the Act. He accordingly decreed the suit and issued a permanent injunction

restraining the Devasthanam from interfering with the appellant''s possession.

On appeal, by the Devasthanam, the Sub-Court, reversed the decision of the trial Court. In the appeal, reliance was placed on behalf of the

Devasthanam, on the provisions of Section 51(iv) of the Tamil Nadu Act LVII of 1961. It was submitted on behalf of the Devasthanam that the

suit tope fell within the category of land converted into tope and since it was common ground that it continued to be a tope at the material time, the

provisions of Section 51(iv) of the Tamil Nadu Act LVII of 1961 would apply so as to exempt it from the protective provisions of the Act. The

learned Subordinate Judge accepted this submission. He held that the suit tope answered the description contained in Section 2(29) of the Tamil

Nadu Act LVII of 1961 and nonetheless so for the fact that the lease deed provided and permitted the appellant to raise the dry crops. On the

evidence on record, he recorded a finding that the land had not ceased to be a coconut tope and continued to remain as such. As for the

applicability of Section 51(iv) of the Act, the learned Subordinate Judge applied a ruling of Ismail, J., in a decision briefly reported in Sri

Panchanatheswararswami Devasthanam by its trustee v. Barkis Bivi (1972) T.L.N.J. 591. In the result, he held that the suit tope was exempt from

the provisions of the Tamil Nadu Act LVII of 1961 and that the appellant had no right to injunct the Devasthanam from recovering possession of

the suit tope.

In this second appeal preferred against the judgment and decree of the learned Subordinate Judge, Mr. Sivamani for the appellant contended

that Section 51(iv) of the Tamil Nadu Act LVII of 1961 does not apply to the suit tope. I am, however, unable to accept this submission, both on

a construction of the relevant provision and on the authority of the judgment of Ismail, J., to which I have earlier referred. The provision in question

reads thus:

Section 51 - Exemption : Nothing contained in this Act shall apply to-

(i) * * *

(iv) lands converted into orchards or topes or arecanut gardens, whether or not such lands are contiguous or scattered:

Provided that such lands shall be exempt only so long as they continue to be orchards, topes, or coconut-gardens;

Tope"" is defined u/s 2(29) of the Act in the following terms:

(29) ''tope'' means any land containing group 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.

The definition of ""tope"" does not exclude the cultivation of crops other than the fruit or nut-bearing trees. All it emphasises is that the land must

contain a group of fruit or nut-bearing trees as constituting the main crop in that land. On the evidence on record, in this case, there can be no

doubt whatever that the suit land is predominantly a coconut tope. The evidence shows that in an area measuring 53 cents, there are as many as 48

coconut trees. The learned Subordinate Judge was, therefore, quite right in construing the land as a tope. In this context, the provision in the lease

deed enabling the appellant to raise punja crops cannot militate against the land being continued to be regarded as a tope within the meaning of the

statutory definition. There was some evidence in the case to the effect that the appellant raised some punja crops such as ""karunai"", ""turmeric"" and

red-gram"". There was, however, doubt as to whether these crops were raised in the coconut tope itself. The learned Subordinate Judge doubted

whether the inter-space between 48 coconut trees in the area of 53 acres could at all have permitted the raising of any such punja crops. But even

assuming that these punja crops were, in fact, raised by the appellant, in the tope itself they cannot detract from the fact that the land is mainly or

predominantly a coconut tope containing clusters of coconut-bearing trees. I am, therefore, satisfied that the suit tope answers the statutory

description.

The only other question, therefore is, whether the suit tope is entitled to be immune from the protective provisions of the Act. Section 51(iv) of

the Tamil Nadu Act LVII of 1961, which I have already extracted is, quite clear on this subject. It says that the Act shall not apply to such topes

so long as they continue to be used for such purposes as provided in this section.

At the time I heard arguments from the Bar, I entertained some little doubt as to whether Section 51(10) applies only to the 0lands which had

been ""converted"" into topes. I am however satisfied on deeper consideration that the definition admits of no doubt, having regard to what I

consider with respect, to be a clear exposition of the meaning and scope of this provision by Ismail, J., in Sri Panehanatheswarraswami

Deyasthanam by its trustee v. Barkis Bivi and Ors. (1972) T.N.J. 591. The learned Judge in that case took the view that the expression

converted"" occurring in Section 51(iv) is not a term of art and it has not been used in any technical sense by the Legislature and that all it meant is

that if the land once becomes a tope as defined in Section 2(29) of the Act, then the land must be regarded as having been converted into a tope

as contemplated in Section 51(iv) of the Act and it would fall outside the scope of the Act and it will only cease to be so exempt if the land

becomes reconverted into something other than a tope. I adopt this view of Ismail, J., as my own. The learned Subordinate Judge''s view based on

the decision of Ismail, J., has, therefore, to be upheld as Correct in law. For all the above reasons, this second appeal has to be dismissed and I

accordingly do so. The judgment and decree of the learned Subordinate Judge are confirmed. There will, however, be no order as to costs.