H.B. Datar, J.
1. The defendant is the appellant in the present second appeal. Plaintiff filed O. S. No. 518/64 in the court of the Additional Munsiff. Mangalore S. K. The learned trial Judge by his judgment dated 31-8-1967 decreed the plaintiff's suit.
2. The correctness of this decision was challenged before the court of the Civil Judge at Mangalore in R. A No. 17/1967. The learned appellate judge who heard the appeal, by his judgment dated 20-3-1969 has allowed the appeal, set aside the decision of the trial Court and dismissed the plaintiff's suit.
3. It is the correctness of this judgment and decree of the learned appellate judge that is challenged in this second appeal.
4. For the purpose of proper consideration of the questions involved in this second appeal, it would be necessary to set out briefly the facts alleged. The case of the plaintiff is that the defendant is a monthly tenant under him in respect of the house and the compound, described in 'A' schedule annexed to the plaint, for residential purposes; that the defendant has executed a lease deed dated 8-1-1953 for the period ending with 31st March 1954 and the defendant has thereafter been holding over as a monthly tenant. It was further alleged that the notice was issued by the plaintiff calling upon the defendant to surrender possession. Since the defendant has failed to do so, the plaintiff was obliged to file this suit for possession.
5. The case of the defendant on the other hand is that he admits that he is a tenant but he contended that he is a chalageni tenant since a very long time and he is not a monthly tenant. It Was further staled by him that the holding is a horticultural and agricultural holding consisting of fruit yielding trees and there are a number of coconut, mango. Jack tamarind and other trees. It was stated that ragi was also grown in a portion of the holding and as such the defendant is a cultivating tenant protected from eviction of the land.
6. On these pleadings, the trial Court has framed six issues. The relevant issues are: (1) whether the plaintiff proves that the defendant is a monthly tenant liable to pay Rs. 2-08 per month; and (2) whether the defendant proves that she is a chalageni tenant of the suit properties.
7. The learned trial judge upon a consideration of the oral and documentary evidence and the surrounding circumstances held that the properties are leased not for agricultural purposes but it was for residential purposes. As also the lease is for residential purposes, the court held that the tenancy must be deemed to be a tenancy from month to month and therefore, a decree for eviction followed.
8. The view taken by the learned appellate judge on the other hand is that the lease in the present case was an agricultural or horticultural lease and as the protection of this provision of Madras Cultivating Tenants Protection Act or the Mysore Land Reforms Act is available, the plaintiff was not entitled to seek eviction in the Civil Court.
9. The learned advocate for the appellant cited several authorities in support of his submission that the lease in question is for residential purpose to which I will make a reference in the course of this judgment. The learned advocate for the appellant however, particularly referred me to certain documents and I think it is necessary to make a reference to these documents, before I consider the authorities cited.
10. Prior to this suit the present plaintiff filed O. S. No. 289/52 in the court of the District Munsiff at Mangalore. In that suit (copy of that plaint is produced and marked as Ex. 0.4 in this suit) it was expressly averred that the defendant is the chalageni tenant under the plaintiff in respect of the residential property fully described in the schedule there-below on an annual rental of Rs. 16/- payable by the end of March every year. The property described in the schedule to that plaint is the very property, regarding which the present proceedings are instituted.
11. The written statement filed in the above suit (O. S. No. 289/1952) is produced in this case and marked as Ex. A-5. The relevant paragraphs of the written statement are paragraphs 4 and 6 in which the defendant has denied the claim made in the suit but the allegation that it was a lease for residential purpose was not denied at all. On the contrary, compensation was claimed for the improvements affected by him and it was further stated that a vacant site and a small hut was leased out several years ago and it was agreed that compensation for the value of the improvements effected by the defendant would be given. The suit ended in a compromise decree and the compromise memo is produced at Ex. A.6. It was urged by the learned counsel for the appellant that when we peruse these documents, the only inference that could be drawn is that the original lease was for residential purpose and not for agricultural or horticultural purpose.
12. The area that has been leased to the defendant is hardly 27 cents of land and in that area there are BO a coconut, lack and mango trees and also two small houses. In the written statement filed in the 1952 suit, it was not stated by the present defendant that he Was a tenant holding the land either for agricultural or horticultural purpose. On the contrary, her case as could be seen from Exhibit A.5 that vacant plot of land was leased with a small hut years ago and she was promised by the landlord that she will be given compensation for improvements and that she has spent about Rs. 1,000/- towards improvements. The failure to assert the claim that she was holding the land for agricultural or horticultural purpose in the year 1952 would appear to indicate that, that was not the purpose. Moreover in the written statement filed in the present case, it has been stated that she is in possession of the property for the last over 43 years and terms are stated to be the same. It is the original purpose, therefore that must be looked into.
Defendant's son has been examined as D. W. 1 in the case and he has stated that they are residing in the property as tenants since about 43 years. In the cross-examination, it was admitted by him that his mother is staying in the house and doing household work and no other occupation has she done at any time. Even regarding the other members of the family, for example, the nephew and the wife of D. W. 1, it was mentioned that the nephew works in the press and the wife of D. W. 1, was working in the cashew factory. It was also admitted that the mango trees are of wild variety and not graft mangoes. It was also stated that a few arecanut plants have been planted recently. It is also necessary in this connection to refer to the document chalageni chit Exhibit A.1 which was very strongly relied upon by the learned appellate judge and the learned counsel for the respondent-defendant. The lease deed is Exhibit A. 1 dated 8-1-1953 and is at page 75 of the paper book. It is a printed copy of the chalageni chit which is available in the district and that has been used. In the lease deed mention is made about the trees and also about the house. It is also necessary to note that the inapplicable terms in the printed lease deed have not been struck off. It was admitted that under this document that the rent payable was yearly and it had to be paid on the 30th of March and there was a reference in the deed to crops, cultivation etc., and so it was submitted that the purpose must be deemed to be horticultural or agricultural purpose. The reply of the other side is that it is a printed form which is generally available in the village that has been taken and the use of such a form was not decisive of the nature of lease. In that connection, the report of the Commissioner was pointed out and it shows that there were hardly any crops grown on the land. The mere existence of several trees does not mean that the lease was for horticultural or agricultural purpose. If the lease is for residential purpose and for its better enjoyment trees etc., are also given to the tenants, it is difficult to accept that the lease is for horticultural or agricultural purpose. At this stage, it is necessary to refer to the authorities cited by the learned counsel for the appellant.
12-A. In the case of Kunhammad Koya v. Mullasseri Gopala Menon AIR 1943 Mad 181 it has been held as follows :--
'In a plot which is principally used as a residential house, there are always a few plantain trees and a few cocoanut trees and it will be preposterous to say that the whole plot including the building is used principally for growing fruit bearing tress. It is the principal user of the plot as a Whole that is to be regarded as a test.' It has also observed as follows:--
'.....It is common experience even in Madras where there is not plenty of water as on the west coast to find in residential houses with compounds, a few plantain trees, a few coconut trees and some murunga trees. It will be a misuse of the language to say that the plot as a whole is used principally for growing fruit-bearing trees. In the west coast where there is plenty of water and scarcely any house without a compound there will always be a few trees of this description and if the view urged by the respondent is accepted, every house and every residential building in which there are a few cocoanut trees or a few plantain trees must be held to be lands principally used for growing fruit-bearing trees and therefore garden lands, I think such a conclusion is impossible. The Courts below were led away by what I have held to be an irrelevant consideration viz., that in 1889 or 1899 a portion of these lands was let out to the then tenant under terms which, in the opinion of the Courts below, show that it was then a garden land,
'It is not clear how the state of things at that time would enable one to say that it was even then a garden land. Even in 11599 there were, in addition to the buildings. Twelve cocoanut trees, three areea, one jack and one paraka tree.
It would be very difficult to say with that state of things, the land could properly be termed garden land even in 1899'.
In the case of P. N. Krishnaraj v Gulabi Bai, 1964 Mys LJ (Supp) 201 it has been held as under :--
'The question whether a given lease is or is not a lease of a building within the meaning of the Act is a jurisdictional fact'.
further it has been observed as follows:
'.....Three lease deeds executed by him in favour of the previous owner Gopalkrishna Ballukuraya are marked Exs. A3, A 4 and A 5 of the years 1938, 1946 and 1955 respectively. All these are described as chalageni chits and do not bear stamp. They provide for an annual geni of Rs. 110/-. In the schedule annexed to these leases the property S. No. 82/8 together with two tied houses, well, cocoa- nut trees and other fruit bearing trees. Whereas in the first two deeds the property is referred to in the body of the document as 'Garden etc., entire property' fully described in the schedule, the third document Ex. A 5 refers to it in the body of it as 'Garden houses etc. entire property' fully described in the schedule. There is nothing in the definition to indicate the extent of the garden or grounds which may be said to be appurtenant to a building or specifying particular relation that should exist between the area of the building and the area of garden or grounds before the latter can be said to be appurtenant to the former. The question, in my opinion, should therefore depend entirely upon the facts of each case, the point for investigation being whether the garden or grounds is or are enjoyed along with the building by persons occupying that building.'
In the case of Laxman Nayak v. Paul Louis, (1969) 2 Mys LJ 577 this Court has held as follows:--
'Where a chalageni lease was grant-ed and the object of the lease was for dwelling purposes and the lessee was to look after the trees that were on the land, and the lessee was a tailor who carried on tailoring work in the house, held the lessee could not be held to be a cultivating tenant.'
13. From a perusal of these decisions, it would be clear that what must be seen is the purpose and the mere use of either a printed form or a deed styling as a chalageni lease deed does not make it a lease for non-residential purpose.
13-A. A small extent of the area has been leased and it is quite normal in this part of the State to have a few fruit bearing trees in the compound. The plot is used to be for residential purpose and there is hardly any area left to carry on agricultural operation. As rightly pointed out in Kunhammad Koya's case, AIR 1943 Mad 181, in the west coast there is scarcely any home without a compound and there will always be a few trees like mango, jack and cocoanut trees. The occupation of the respondent would also indicate that the lease was not for agricultural or horticultural purpose.
The use of the printed chalageni chit cannot be decisive in such matters. The lease appears to be for the residential purpose and the lessee was only to look after the trees that were on the land. It is also necessary to note that there is nothing in the deed to indicate that the lease was for horticultural purposes. In these circumstances, it would be apparent that the plea of the benefit of the Madras Cultivating Tenants Protection Act and the Mysore Land Reforms Act is being only claimed to avoid eviction. Having regard to the fact that in 1952 when a specific claim was made that the lease was for residential purpose, it was not denied nor disputed that the original lease which commenced several years ago is continuing even now, the execution of the document like Ext. A.5 does not make it, a lease for non-residential purpose. Thus the view taken by the learned appellate Judge to the contrary is unsustainable.
14. In that view of the matter, this appeal is allowed, the judgment and decree passed by the learned appellate Judge are set aside and that of the trial Court is restored. In the circumstance parties will bear their own costs.