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Kanchi Kamakoti Mutt by Agent R. Seshaiya Sastrigal Vs. A. Alagu Ambalam (Deceased) and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1960)2MLJ173
AppellantKanchi Kamakoti Mutt by Agent R. Seshaiya Sastrigal
RespondentA. Alagu Ambalam (Deceased) and ors.
Cases ReferredNaraslmha v. Achiah
Excerpt:
- - , forfeiture, surrender and the like of the landlord coming to an end the tenancy ceases and in my opinion the provisions of madras act (xxiv of 1949) as extended to later years would not apply......in paragraph 12 of the written statement the defendants stated that they were protected by the madras tenants and ryots protection act. while the suits were pending the respective defendants in the various suits filed applications praying for stay of the suits under the madras tenants and ryots protection act, xxiv of 1949. the learned district munsif held that although the substantial defences in the suit were the assertion of kudiwaram right in the lands and want of jurisdiction of the civil court, there was also a prayer for stay of the suits under the madrasjact xxiv of 1949 and that therefore the suits should be stayed under the said act. in that view the learned district j munsif granted stay of the trial of the suits subject to the condition of the tenants dej positing rent.....
Judgment:

1. These revision petitions arise out of orders passed by the District Munsif of Manamadurai in I.A. Nos. 538 to 541 of 1956 granting stay of suits, O.S. Nos. 63, 64, 67 and 68 of 1955 under the Madras Tenants and Ryots Protection Act XXIV of 1949. The plaintiff is the petitioner in these petitions. He filed the abovementioned four suits aginst the respective defendants for recovery of possession of the properties together with mesne profits. The plaintiff stated that the lands were situate in the inam village of Pulavacheri in iruvaram as sarvamanyam to the plaintiff. That inam was recognised and confirmed by the British Government. According to the plaintiff half of the lands in the village have been set apart and treated as pannai private lands and that in July, 1953, the defendants got an oral lease of the lands set out in the schedule to the various plaints from the plaintiff's Peshkar for cultivation for fasli 1363. But after getting into possession they began to deny the title of the landlord. He had, therefore, to institute against the tenants O.S. No. 12 of 1954 on the file of the District Munsif's Court, Manamadurai, for damages and other reliefs. Thereafter, i.e., by 30th June, 1954, the time mentioned in the leases in favour of the various defendants also expired. In those circumstances the plaintiff prayed for ejectment of the defendants and for a decree for mesne profits. The defendants contested the claim of the plaintiff. They denied the fact that the plaintiff had rights and stated that the inam grant could not bind the pre-existing kudiwaram rights which they claimed in the lands. They also denied that the lands were pannai lands and that they were ever under the enjoyment of the landlord either by direct cultivation or by leasing out. They further denied that they ever took the property on lease from the plaintiff and claimed that the land belonged to them in kudiwaram right ancestrally and absolutely. The written statements disclose a complete denial of the landlord's title to lease the properties and to eject the tenants. In paragraph 12 of the written statement the defendants stated that they were protected by the Madras Tenants and Ryots Protection Act. While the suits were pending the respective defendants in the various suits filed applications praying for stay of the suits under the Madras Tenants and Ryots Protection Act, XXIV of 1949. The learned District Munsif held that although the substantial defences in the suit were the assertion of kudiwaram right in the lands and want of jurisdiction of the civil Court, there was also a prayer for stay of the suits under the MadrasjAct XXIV of 1949 and that therefore the suits should be stayed under the said Act. In that view the learned District j Munsif granted stay of the trial of the suits subject to the condition of the tenants dej positing rent into Court every year but the landlord was prohibited from drawing the rents so deposited till the disposal of the suits. The plaintiff has sought to revise the orders granting stay.

2. I have already set out the substance of the pleadings in the case. Madras Act XIV of 1949 was passed to provide temporary protection to certain classes of tenants and ryots in the province of Madras against eviction pending contemplated tenancy legislation. That Act as originally passed was only for a period of one year but later on the life of the Act has been extended by various enactments the last of them being Act VIII of 1957 which extended it till 7th October, 1959. Section 4 of the Act states thus:

(1) All suits or proceedings in execution of decrees or orders and other proceedings--

(2) for the eviction of tenants from their holdings or land as the case may be or in which a claim for such eviction is involved whether in addition to a claim for rent or not and which stood stayed up to the commencement of this Act or which may be instituted after such commencement in Civil or Revenue Court, shall continue to stand stayed or shall stand stayed as the case may be subject to the provisions of the following Sub-sections ....

In the present case there is no dispute that the village of Pulavachari is an inam village within the meaning of the Madras Estates Land Act 1908 as amended by the Third amendment of 1936. It has been held that it is not an inam estate within the meaning of Act XXIV of 1949. Section 1 of Act XXIV of 1949 states that the Act applies to the ryots in the State of Madras governed by the Madras Estates Land Act, 1908 and tenants of private lands in such estates. But it should be either admitted or proved by the defendant who applies for stay of a suit for eviction either that he is a ryot or at least a tenant of the private land. In the present case it is not admitted that the various defendants are ryots and the suit itself is filed on the footing that the lands in their occupation are private lands. Before that question is decided the defendants claim to be entitled to a stay of suit could only be on the footing that they are tenants. The claim on behalf of the defendants was therefore made both before the lower Court and this Court on the basis that the lands were pannai lands and their possession was under a terminable lease which had been terminated. Mr. K. Vaideeswaran, the learned advocate who appeared for the petitioner, argued that on the facts disclosed there can be no relationship of landlord and tenant properly so called as the substantial claim in the written statement was only in regard to occupancy rights which claim has not yet been investigated and that no relief could be given on the basis that they were tenants of private lands.

3. As the learned District Munsif observed, this contention is not correct. In Para. 12 of the written statement the defendants claim the benefit of Act XXIV of 1949 which claim would be consistent with either case. Section 1(1) of the Act makes it clear that its provisions would apply whether the defendant against whom eviction is sought is a ryot under the Madras Estates Land Act I of 1908 or a mere tenant of the private land. In the former case the civil Court would have no jurisdiction and Section 4(1) directs a stay of sale of their holding. In the latter case the Civil Court would have jurisdiction but the suit is directed to be stayed. I cannot, therefore, accept this contention.

4. It was next contended that the Act would apply only to cases of tenants and not to cases of tenants whose tenancy has expired by efflux of time. The contention was that the defendants were tenants whose tenancy had expired and their possession of the lands after the expiration of the lease could only amount to a tenancy by sufferance and there being no assent of the landlord for their continuance in possession they should be deemed to be only trespassers. Reference was made to Mullah's 'Transfer of Property Act', 4th edn., at page 599:

A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title had determined without, the consent of the person entitled. The Madras High Court has observed that the fiction has no place after the enactment of the Transfer of Property Act. But the Act as already observed is not exhaustive and the term is a useful one to distinguish a possession rightful in its inception but wrongful in its continuance from a trespass wrongful both in its inception and in its continuance. A tenant holding over after the expiration of the term is a tenant at sufferance. If he holds over against the landlord's consent he is a trespasser and is liable for mesne profits.

5. The decision of the Madras High Court referred to in the above passage is reported in Subraveti v. Gundala I.L.R.(1909) Mad. 260 : 19 M.L.J. 732.

6. There is, however, no definition of the word 'tenant' under the Act XXIV of 1949 and the popular meaning of the word would relate to a person whose tenancy is subsisting. In certain other enactments, e.g., the Madras City Tenants Protection Act III of 1922, Section 2(4), the Madras Buildings Lease and Rent Control Act XXV of 1949, Section 2(4), and the Madras Cultivating Tenants' Protection Act XXV of 1955, Section 2 (a)(1), define the word tenant as including a person who continues in possession after the termination of the tenancy. Mr. Vaideeswaran contends that from the definitions contained in the enactments it is implicit that persons in occupation after the termination of the tenancy would not be tenants and that was why the definitions in these enactments were specially enacted so as to include them. There being no such definition in Madras Act XXIV of 1949, he contends that the word tenant in the Madras Act XXIV of 1949 would mean only persons whose tenancy is subsisting and not those whose terms had expired and continue in possession against the will of the landlord: such persons would only be trespassers and not tenants. Reference was then madeto the provisions of Section 4(2) of the Act which contemplate a claim for rent being made in the suit. The contention was that a claim for future rent is possible only against a tenant whose tenancy is subsisting and that in the present case there was only a claim for mesne profits on the foot of the defendants being trespassers. I cannot agree. The meaning of the word tenant should be gathered from the context having regard to the class of persons who were intended to be protected. Suits for ejectment would be filed only when the tenancy has expired or where the tenancy had been determined by one of the modes recognised in law (vide section III, Transfer of Property Act, though it does not apply to agricultural leases). If a teancy is subsisting no question of ejectment can arise. In my opinion Section 4(1) of Act XXIV of 1949 would relate to suits, against persons whose tenancy had expired and who are liable to be evicted. The necessity for protection arises only in such cases. Section 4(1) of the Act would be rendered nugatory if the operation of it is confined to cases where the tenancy is in force.

7. Unfortunately the respondents have not engaged any advocate to appear on their behalf. I requested Mr. T.R. Srinivasan, a leading member of the Bar, to represent them as amicus curiae. Mr. Srinivasan referred me to the object and purpose of the Act which was intended to protect the tenants against eviction by the landlords whose estates were being taken over pending a comprehensive tenancy legislation by the State. He contended that the provisions of Section 4(1) of the Act contemplate a sustainable suit or action in ejectment which means that the tenancy had expired. I agree. The provisions of Section 4(1) of the Act should apply to a case where the tenancy had expired as otherwise the object and effect of the legislation would be frustrated. But the present case cannot be disposed of on that finding. 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 of permanent tenancy by a periodical tenant may not in certain circumstances amount to a disclaimer of the landlord's title. A kudivaram right is not a case of mere permanent tenancy. It is something more amounting to an interest in the land, transferable and heritable. In cases where compensation is given in respect of a land acquired by the Government compensation is given to the owner of the kudivaram on the basis of his having a share in the property. Under Madras Act XXVI of 1948 the owner of the kudivaram would obtain a patta direct from the Government and the landlord would not get a right to it or compensation for it. If therefore any tenant of a private land sets up a title to the kudivaram in himself or in persons other than the landlord, it would amount to a clear denial of the title of the landlord.

8. In Halsbury's Laws of England, Vol. 20 (2nd edn.), Article 281 states that:

There is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor 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.

In the Note (m) to that Article it is stated:

Similarly where in proceedings between himself and the lessor the lessee either as plaintiff or defendant sets up an adverse title in himself a case of forfeiture arises.

In the Law of Landlord and Tenant by Foa (6th Edn.), at page 711, it is stated:

A tenancy may determine by forfeiture either by express stipulation between the parties or by act of law. The loss of the tenant's interest by breach of condition or by the operation of the proviso for re-entry on breach of a covenant (i.e., by express stipulation) has already been considered. In addition to this if he sets up a title hostile to that of his landlord or even merely assist, another person to do so he likewise incurs forfeiture (by act of law) as if he delivers up possession of the premises and leases to another person with the intention of enabling him not to hold under the lease but to set 'up such a title'.

9. In Woodfall on Landlord and Tenant (25th Edn.), at 1072, it is stated as follows:

A disclaimer by a tenant from year to year of the title of his landlord or of the person for the time being entitled to the immediate reversion as assignee, etc., of the landlord will operate as a waiver by the tenant of the usual notice to quit and will in effect determine the tenancy at the election of the landlord or other person so entitled for a notice to quit is only requisite where a tenancy is admitted on both sides, and if a defendant denies the tenancy there can be no necessity to end that which he says has no existence.

That is to say by the denial of the title of the landlord the tenant renounces his character as such tenant and thereby incurs a forfeiture of the tenancy. In case the landlord elects to take advantage of the disclaimer, the tenancy comes to an end because the tenant says that he was not a tenant by repudiation of the title of the landlord and the landlord says that he does not want the tenant and re-enters on the property. Essentially a tenant is a person who holds under a landlord and if that relationship is repudiated and the landlord also elects to enforce the forfeiture, that relationship would come to an end. The tenant could not be termed as such as there is no relationship of landlord and tenant subsisting. This is exactly what happened in the present case. The tenants repudiated the title of the landlord earlier and in the suit and the landlord elected to take advantage of the denial of his title. The result of this denial of title and election to forfeit the lease is that the tenants are no longer tenants but trespassers. In Namdeo Lokman Lodhi v. Narmada Bai : [1953]4SCR1009 the Supreme Court held that in respect of a lease to which the Transfer of Property Act did not apply forfeiture is incurred when there is a disclaimer of title or there is non-payment of rent. Any subsequent act of the landlord electing to take advantage of a forfeiture is not a condition precedent to the right of action for ejectment. The bringing by a landlord of a suit for ejectment is simply a mode of manifesting his election. It has been held in Naraslmha v. Achiah (1954) 2 M.L.J. 83, that provision as to written notice contained in section in (g) of the Transfer of Property Act in regard to forfeiture by reason of denial of title would not apply to an agricultural lease and that no written notice by the landlord is necessary for taking advantage of the forfeiture incurred by the tenant. In the present case we are not concerned with the question as to whether the defendants had made out their claim for occupancy rights. That is a matter which has got to be decided in the suit, and if it is decided in favour of the defendant the plaint will have to be returned for presentation to the proper Court. As stated already it is assumed for the purposes that the lands are the pannai lands of the plaintiff and the defendants are yearly tenants. The position then is that the defendants have denied their tenancy and the plaintiff has elected on such a denial to bring a suit for ejectment which they are entitled to under the law. In the absence of any definition in the Madras Act (XXIV of 1949) of the word tenant so as to include a person who has incurred forfeiture of tenancy, I would hold that the defendants are not tenants as the tenancy has been put an end to by reason of the cessation of relationship of landlord and tenant.

10 As I stated already if the case had been merely one where the tenant was sought to be ejected by reason of efflux of time the provisions of Act (XXIV of 1949) would apply. But as the case is one where the tenancy has been extinguished by forfeiture the provisions of the Act cannot be so construed as to revive or resurrect what is dead and gone. In this connection I may refer by way of illustration to two other modes of the determination of a lease, viz., (1) surrender; (2) where the interest of the lessor itself had terminated. In both these cases, it cannot be held that the tenant would have a right to continue in possession as a tenant. In all these cases, i.e., forfeiture, surrender and the like of the landlord coming to an end the tenancy ceases and in my opinion the provisions of Madras Act (XXIV of 1949) as extended to later years would not apply. There is nothing in the Act to warrant the extension of its benefit to such cases. In this view I am of the opinion that the orders of the lower Court granting a stay of the suit cannot be sustained. The orders of the lower Court are therefore set aside. The lower Court should proceed with the trial of the suits and if it is proved that the lands are ryoti lands and that the defendants have occupancy rights the plaints should be returned for presentation to the lower Court.

11. If however it is held that the suit lands are pannai lands, it should hear the suits on all the issues and dispose it of in the light of its finding. The lower Court should also give appropriate directions as to any rent that might have been deposited in pursuance of the order under revision. The C.R.Ps. are allowed with costs. One advocate's fee to be distributed between the Respondents in various C.R. Ps.

12. I must express my thanks to Mr. T.R. Srinivasan for the very able way in which he assisted the Court by conducting the case on behalf of the Respondents.


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