P. Rajagopalan, O.C.J.
1. The first defendant is the appellant. The appeal itself at this stage is confined to items 10, 11,17,18, 24,2 7 to 30, 36 to 41 and 44 to 47 of the schedule to the plaint. It is common ground that these are all wet lands. In paragraph 11 of the written statement filed in the suit the first defendant pleaded that he was a lessee in possession of all these items, and the plea in paragraphs 11 and 13 of the written statement was that he was a cultivating tenant within the meaning of Act XIV of 1952. After the first defendant filed his written statement the plaintiffs obtained permission and amended the plaint, introducing paragraph 17(a) and in para 21(d)(1) the plaintiffs as the basis for the alternative relief they asked for, that if it was found that the first defendant was a tenant under the plaintiffs of the items specified above, he would still be liable to be evicted and that the plaintiffs were still entitled to get possession.
2. Issue 4 of the issues framed by the learned Subordinate Judge ran:
Whether the 1st defendant is a lessee in respect of items 10, 11, 17, 18, 24, 27, 28, 29, 30, 36 to 41, 44 to 46 and 47 of the plaint schedule and whether he is entitled to claim the benefits of the Tanjore Tenants and Pannaiyal Protection Ordinance No. VI of 1952 ?
3. It may not be necessary to trace all the legislative changes since Act XIV of 1952 came into force with effect from 23rd August, 1952. When Madras Act XXV of 1955 was first enacted, it did not at first apply to the area in which Act XIV of 1952 was in operation. Subsequently, however, Act XIV of 1956 in effect made Act XXV of 1955 applicable to the area where Act XIV of 1952 was in operation, subject to certain alterations with which we need not concern ourselves at this stage. Act XIV of 1956 received the assent of the President on 29th September, 1956 and was published in the Gazette on 1st October, 1956.
4. It cannot be denied that the litigation before us has to be dealt with under Section 6-A of the Act XXV of 1955, which was enacted by the amending Act XIV of 1956.
5. What the learned Subordinate Judge did was to direct the eviction of the first defendant from these items, while reserving a right to the first defendant to establish his non-liability for eviction from one or more of these items in properly constituted proceedings before the revenue authorities under Act XIV of 1952 provided the first defendant took these steps within five months of the decree. That was confirmed by Ramaswami, J., when he disposed of the appeal preferred by the first defendant, A.S. No. 52 of 1954. It is the correctness of that direction that is really challenged in this appeal preferred under Clause 15 of the Letters Patent.
6. As we have said, that the question at issue between the parties has to be disposed of in accordance with Section 6-A of Act XXV of 1955, can admit of no doubt. The procedure to be followed in such cases has been indicated by a Division Bench of this Court in Veluchami Naicker v. Mouna Guruswami Maicker (1957) 3 M.L.J. 628.
7. The learned Subordinate Judge found that though the plaintiffs' case that the first defendant was not a tenant at all could not be accepted and though there was evidence to show that the first defendant was a lessee under the plaintiffs of some lands, the evidence on record was not sufficient to show whether the first defendant was a lessee under any of the plaintiffs with reference to the items mentioned in Issue 4. That was really the basis on which he gave an option to the first defendant to pursue the matter before the revenue authorities in properly constituted proceedings under Act XIV of 1952. Learned Counsel for the appellant urged that the attention of the parties was focussed at the stage of the trial before the learned Subordinate Judge only on the question whether the first defendant was a tenant as pleaded by him or whether he was only an agent of the plaintiffs in possession of the lands in his capacity as such agent, and not a tenant or lessee at all, and that neither party devoted any attention to the question, whether if the first defendant was a lessee or tenant under the plaintiffs, of what items he was such a lessee. The evidence is certainly meagre. All that the first defendant swore to was:
It is not true that any of the lessees are in possession of the lands in my possession. I am the real lessee. It is not true I have asked some others to execute lease deeds.
There was very little by way of cross-examination, at any rate directed to the item specified in Issue 4.
8. Since the question at issue has to be disposed of in accordance with Section 6-A in the first instance it is for the civil Court to decide whether the claim put forward by the first defendant that he was a cultivating tenant is correct.
9. The only question that arises for consideration is whether the first defendant should be given an opportunity at his stage to place all the evidence available to him to prove with reference to each of the items specified in Issue 4 that he was a tenant or lessee under the plaintiffs and, therefore, a cultivating tenant within the meaning of Act XXV of 1955. Since, as we pointed out earlier, the attention of the parties was not focussed on this aspect of the case, we think that the first defendant should be given such an opportunity subject to terms. It is true that when the learned Judge, Ramaswami, J., disposed of the appeal, this aspect of the case was not presented to him, whether the appeal before him should not be decided with reference to Section 6-A of Act XXV of 1955. That will also be taken into consideration in subjecting the appellant-first defendant to terms.
10. On condition that the first defendant pays all the costs incurred by the plaintiffs up to this stage irrespective of the ultimate disposal of the suit, the decree of the learned Subordinate Judge in relation to the items specified in Issue 4 will be set aside and that of the learned Judge confirming it will also stand set aside, and the suit will be remanded for disposal afresh after a decision on Issue 4, in the light of our above observations and in accordance with Section 6-A of Act XXV of 1955. If the amount is not deposited within two months from the date of the receipt of the records by the lower Court, the appeal will stand dismissed with costs.
11. If the amount is deposited it can be paid out to the plaintiffs on their application. Issue 4 will be tried afresh and both parties will be given an opportunity by the Court to place such evidence as they have on record for the determination of Issue 4.
12. This case having been set down for being mentioned this day, the Court made the following
13. ORDER - What the plaintiff is really entitled to under our order is the costs as taxed and no more. Costs taxed were only Rs. 839-11-7.