1. To what extent the jurisdiction of the Civil Court is usurped under the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Owenrship) Act, 1971 (hereinafter called the Act) is the principal question that is raised in this second appeal
2. The respondent-plaintiff brought O.S. No. 463 of 1975, on the file of the District Munsif Court, Kumbakonam, against the appellant-defendant for redemption of the suit Property from the appellant and for directing the appellant to deliver possession as also for recovery of mesne profits, both past and future. The mortgage was oral, The respondent is the purchaser of the equity of redemption, while the appellant was put into possession of the property by the transferee from the original mortgage, Abdul Wahab. The defence is total denial of the oral mortgage. It is stated that Abdul Wahab sold the superstructure to the appellant and that the appellant is, therefore, entitled to all the benefits of Kudiyiruppu Act 40 of 1971 and is an agricultural labourer eking out his livelihood by agricultural operation. The respondent cannot invoke the jurisdiction the Civil Court for any purpose. It is relevant to notice that in the plaint the respondent had denied that the appellant is an agriculturist or an agricultural labourer.
3. The trial Court overlooked the fundamental issue, viz., 'Is the Civil Court's jurisdiction to determine whether the site is a 'kudiyiruppu' and whether the appellant is an agriculturist or an agricultural labourer, barred under the Act despite the specific averment in para 6 of the written statement'. 'The plaintiff cannot invoke the jurisdiction of this Court for any purpose'. It is true such a defence as to ouster of Civil Court's jurisdiction was not raised in the grounds of appeal before the lower appellate Court; but then the appeal, A. S. No. 48 of 1976, being a continuation of the suit, the lower appellate Court ought to have taken cognizance of the vital issue as to its jurisdiction and render its finding thereon. As a matter of fact, in the course of its judgment the lower appellate Court did brief the defence set out in the written statement; nonetheless it had overlooked the vital points for determination. Let me reiterate that it is the primary duty of the first appellate Court to take note of all the issues, arising out of the pleadings, notwithstanding that in the grounds of appeal the particular point was not adverted to, so long as there is no indication that the particular point was not pressed and furthermore the general assertion that the judgment and decree of the Court below is erroneous, finds a place in the grounds of appeal. There is nothing in the records to indicate that the issues relating to ouster of Civil Court's jurisdiction were even given up. It might be that the learned counsel for the appellant in the lower appellate Court is equally to be blamed, but that will not absolve the first appellate Court of its duty to notice the issues arising out of the pieadings and to render its findings thereon.,
4. From the pleadings the following vital points, which concern the jurisdiction of the Civil Court, do arise for consideration -
1. Whether the appellant is an agriculturist or an agricultural labourer? And
2. Whether the court Site is a 'Ludiyiruppu'? Indeed, the substantial question of law which commanded admission of the second appeal is 'Whether the Civil Court had jurisdiction to decide the question of the defendant having the benefit or not under the Kudiyiruppu Act in view of S. 23 of the said Act?
5. It is the contention of the learned counsel for the appellant that these points are exclusively within the jurisdiction of the Authorised Officer as per S. 3 (B) read with Section 23 of the Act. It is therefore necessary to extract the above provisions :
'3 (B): Authorised Officer to decide whether a person is an agriculturist or agricultural labourer, etc.
( 1) If any question arises
(a) whether any person is an agriculturist or an agricultural labourer; or
(b) whether any land is an agricultural land, or
(c) whether any site is a kudiyiruppu; or (d) whether any area adjacent to a dwelling house or hut is necessary for the convenient enjoyment of such dwelling house or but; such question shall be decided by the Authorised Officer.
(2) In deciding any question under subsection (1), the Authorised Officer shall follow such procedure as may be prescribed.'
'23. Bar of jurisdiction of Civil Courts: Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Government are or the Authorised Officer is, empowered by or under this Act, to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act'
6. Section 3 (B) is quite clear and indeed emphatic that the issues involved in this case shall be tried by the Authorised Officer, while Sec. 23 bars the jurisdiction of the Civil Court in respect of such matters which the Authorised Officer is specifically empowered to determine. It is, therefore, apparent that the combined effect of these provisions is that in the field exclusively ear-marked for the Authorised Officer the Civil Court's jurisdiction is taken away. Further a reference to S. 5 of the Act will disclose that it provides an appeal to the District Collector or such officer as may be specified by the Government in this behalf against the decision of the Authorised Officer mad under S. 3 (B) of the Act. This will also affirm my above view that the questions to be determined by the Authorised Officer under S. 3 (B) are within his exclusive jurisdiction.
7. An argument was advanced on behalf of the respondent that the appellant is not a licensee and, therefore, he is not entitled to invoke to his aid the protection guaranteed under the Act and the Civil Court's jurisdiction is not ousted. But there is no pleadings in this behalf. Therefore this contention fails. Further, such absence of pleading is certainly significant, if it is noticed that the Authorised Officer is bound to decide at least incidentally whether the occupation by any agriculturist or agricultural labourer is that of a tenant or a licensee in determining the question whether any site is a kudiyirippu. As long as that question did not arise for consideration from the pleadings in the instant case, it is not necessary for me to decide the question whether the agriculturist or agricultural labourer is a tenant or licensee, is also taken away from the purview of the Civil Court.
8. Lastly, it is now my duty to deal with the decisions of two learned Judges of this Court, each taking a view contrary to the other, namely : (1979)1MLJ29 , Ganesan v. K. Madurai Ashari, and : (1979)2MLJ369 , Thangavelu Naicker v. Muthukumara Chettiar. It is no doubt true that N. S. Ramaswami, J. had observed (in Ganesan's case) as follows:-
'It is to be noted that the special jurisdiction of the Authorised Officer (apart from that under Sec. 4) is to enquire into and pass orders on applications for eviction filed by any owner of a kudiyiruppu. The appeal to the Collector also relates to the same matter. Under this Act, no other question is within the special jurisdiction of the Authorised Officer, or the District Collector. Particularly, the question whether any house site is a 'kudiyiruppu' or not is certainly not within the special jurisdiction of the Authorised Officer and the District Collector. As a matter of fact, only in a case where it is admitted that the house site is a kudiyiruppu, an application for eviction can be filed, for Section 5 makes it clear that only an owner of a kudiyiruppu seeking to evict can file an application before the Authorised Officer. In other words, only the owner who concedes that the site is a kudiyiruppa can go before the Authorised Officer for eviction. That makes it absolutely clear that if the owner does not concede that it is a kudiyiruppu, his remedy is not to go before the Authorised Officer, but only to come to the Civil Court. Of course, it would be open to the tenant to raise the question that the site is a kudiyiruppu as defined under the Act and that be is entitled to protection under the Act. In such a case, what is to happen to the suit in ejectment filed by the owner in the Civil Court? Undoubtedly, the Civil Court has to go into the question whether the site is a kudiyiruppu or not. If it finds that it is not a kudiyiruppu, then the further questions, arising in the suit have to be determined and the suit is to be disposed of on merits. There are other situations where the Civil Court would have necessarfly to go into the question whether the site is a kudiyiruppu. In a suit for injunction on alleged attempted trespasser, in a suit for possession on the allegation that the defendant is a trespasser, the latter might raise a contention that he is a tenant and the site is a kudiyiruppu. A person occupying a site or alleging that he is occupying the same and that it is a kudiyiruppu might file a suit for injunction. In all such cases, the Civil Court has to decide the question as to whether it is a kudiyiruppu or not. Therefore, there can be no doubt that the Civil Court has jurisdiction regarding that question.'
9. But it is significant to notice that the attention of the learned Judge Was not brought to S. 3 (B) of the Act. Had only the said provision been noticed by the learned Judge, I am quite clear in my mind, that he would not have made the above observation, and been persuaded, to reason that-
'It is not possible to read these provisions as conferring exclusive jurisdiction on the Authorised Officer to decide the question whether a site is a kudiyiruppu or not. The Act nowhere says that such a question is one that has to be decided by the Authorised Officer. As already seen, all that Section 4 says is that if there is a dispute as to whether an agriculturist or agricultural labourer was occupying a kudiyiruppu on the 19th of June, 1971 (if he had so occupied, the ownership of the site would vest in him), this dispute has to be decided by the Authorised Officer. That does not mean that the question whether the site is a kudiyiruppu or not is within his exclusive jurisdiction.'
At the outset, when these two decisions were brought to my notice, I had a lurking inclination to refer this matter to a Division Bench. But when it is seen that the decision of Ramaswami, J. was tendered without a reference to S. 3 (B) of the Act, and that the said provision in unequivocal terms confers exclusive jurisdiction to the Authorised Officer and further that the Civil Court's jurisdiction is barred in respect of such matters, I am emboldened to differ from the learned Judge and to hold that there is ouster of Civil Court's jurisdiction over the issues referred to in the earlier part of my judgment. It may not be out of place to refer to the unique feature that despite his decision quoted above, it is the same learned Judge who had admitted this second appeal and had postulated the substantial question of law as stated supra.
10. In view of the plain provision of the Act, I feel that there is no need to peep into the reasonings which persuaded Balasubrahmanyan, J. to reach the same conclusion I did, even without reference to S. 3 (B) of the Act.
11. It is not in dispute that the reliefs prayed for by the respondent depend on the findings on these two fundamental questions. Then, it follows that the Courts below have no jurisdiction to entertain the action as brought by the plaintiff.
12. On the strength of the unreported decision of Sathiadev, J. in S. A. No. 851 of 1976, it is seriously stressed that the appellant has forfeited his statutory guarantee afforded to him under the Act because he had denied the respondent's title. But I find there is no denial of the respondent's title to the suit site; the alleged denial by the respondent is as follows :-
'The allegations of the plaintiff in para 11 of the plaint are not true or correct. Thiru Pakkiri Mohamed was informed by the defendant of his rights under Kudiyiruppu and even otherwise, his (defendant's) enjoyment as owner for long period over 12 years and Pakkiri Mohammed acquiesced in the rights of defendant. But contrary to the above appears to have colluded with the plaintiff who appears to have prevailed on him.'
13. Above all the denial of title was in respect of the superstructure. In fact, that was one of the issues raised by the trial Court. But then, so long as the 'Kudiyiruppu' rights are conferred only in respect of the site, and so long as the denial of title was not in respect of such site, it is not open to the respondent to call to his aid the above ruling by Sathiadev, J.
14. The result in the second appeal is allowed. The judgment and decree of the learned Subordinate Judge, West Thanjavur in A. S. No. 48 of 1976 as also those of the trial Court are set aside and the suit is dismissed but without costs throughout. No costs even here in the circumstances of the case. Finally I add that my decision herein will not stand in the way of the respondent working out his rights under the Act before ,the concerned authorities provided therein.
15. Appeal allowed.