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Sivachidamba Ram Vs. Annamalai Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberS.A. No. 866 of 1982
Judge
Reported inAIR1984Mad350; (1984)1MLJ419
ActsPondicherry Cultivating Tenants Protection Act, 1971 - Sections 2
AppellantSivachidamba Ram
RespondentAnnamalai Mudaliar and anr.
Appellant AdvocateG. Masilamani, Adv.
Respondent AdvocateJ. Stanislas, Adv.
Cases ReferredGovindasami v. Mahalakshmi Aminal
Excerpt:
tenancy - cultivating tenant - section 2 of pondicherry cultivating tenants protection act, 1971 - suit to restrain defendants from interfering with his possession for being protected tenant under act of 1971 decreed - defendant contented that lease was of usufructs and not of land - except one receipt all other receipts of payment of rent does not mention about land - court below failed to mark documents adduced by defendant by consent - court ought to have granted opportunity to parties to decide validity of said document - court erred in dismissing said evidences stating it as interpolations - matter required remittal and re-investigation - case ordered accordingly. - - 3. 1 must point out that the submission made by the learned counsel for- the second defendant as well as the.....1. the second defendant in 0. s. 666 of 1980 on the file of the principal district munsif, pondicherry, is the appellant in this second appeal. the first respondent herein is the plaintiff and the second respondent herein is the first defendant in the suit. the plaintiff laid the suit for a permanent injunction restraining the defendants from in any manner interfering with his peaceful possession and enjoyment of the suit property. the suit property was described in. the schedule as follows : 'pondicherry - orleanpet commune, sarampacom, cadastre nos. 65, 66, 76, 102, 104.62.66-b and coconut thope in no. 86 total extent is 3 kani 37 kulies.' the plaintiff, in support of the above prayer, put forth the following allegations : he is a cultivating tenant in respect of. the suit property. the.....
Judgment:

1. The second defendant in 0. S. 666 of 1980 on the file of the Principal District Munsif, Pondicherry, is the appellant in this second appeal. The first respondent herein is the plaintiff and the second respondent herein is the first defendant in the suit. The plaintiff laid the suit for a permanent injunction restraining the defendants from in any manner interfering with his peaceful possession and enjoyment of the suit property. The suit property was described in. the schedule as follows :

'Pondicherry - Orleanpet Commune, Sarampacom, Cadastre Nos. 65, 66, 76, 102, 104.62.66-B and coconut thope in No. 86 total extent is 3 Kani 37 Kulies.'

The plaintiff, in support of the above prayer, put forth the following allegations : He is a cultivating tenant in respect of. the suit property. The suit property comprises of a coconut tope in Cadestre No. 86 and the lease specifically covers the coconut tope also. The first defendant claims to have leased out the coconut tope in Cadastre No. 86 to the second defendant and the second defendant is trying to interfere with-the peaceful possession and enjoyment of the suit property by the plaintiff. The plaintiff has the right statutorily available to him under the Pondicherry Cultivating Tenants Protection Act No. 9 of 1971, hereinafter referred to as the Act. The first defendant contested the suit by stating that the plaintiff is not. a lessee in respect of the coconut tope in Cadastre No. 86 and he was only a licensee for plucking the coconuts and even that license was terminated and subsequently, the second defendant has been given that right, and the plaintiff cannot come under the definition of a *cultivating tenant' as defined in the Act. The written statement of the second defendant practically ran more or less on the same lines as that of the first defendant and he reiterated that the plaintiff was only a licensee for collecting the usufructs from the coconut topes. On the pleadings put forth by the parties. the first court formulated the Following issues :

1. Whether the plaintiff is lessee in respect of the suit coconut toppu or is only a licence?

2. Whether the plaintiff is in possession and enjoyment of the suit properties?

3. Whether the second defendant is in possession of the suit coconut toppu?

4. Whether the plaintiff is entitled for issue of injunction as prayed?

5. To what relief is the plaintiff entitled?'

The first Court examined the evidence, oral and documentary, placed by the parties in the case and on issue No. 1, it came to the conclusion that the plaintiff is only a licence for the usufructs from the coconut tope in Cadastre No. 86. With regard to items Nos. 2 to 4, the possession of the lands, other than the coconut tope in Cadastre No. 86, having been admitted by the first defendant and over which the second defendant did not make any claim, the first court came to the conclusion that the plaintiff is entitled to a decree as prayed for, except with regard to the coconut tope in Cadastre No. 86. As a result, the suit was decreed as prayed for, except with regard to the coconut tope in Cadastre No. 86. The plaintiff's claim in respect of the coconut tope in Cadastre No. 86 was dismissed. The plaintiff appealed and the appeal A. S. No. 136 of 1981, was heard and disposed of by the second Additional District Judge, Pondicherry. Before the lower appellate court, the parties appear to have taken out applications for adducing further documentary evidence. The first defendant had two earlier lease documents for faslis 1388 and 1389, entered into by the plaintiff marked as Ex. B. 4 and B. 5. The plaintiff had an earlier document of sublease by the then lessee to a third party, dated 6-121965, marked as Ex. A. 8. 1 will have occasion to refer to Exs B. 4 and B. 5 at a later stage. The lower appellate Court, on an assessment of the factual materials, including the new documents placed before it, came to the conclusion that the lease in respect of Cadastre No. 86 is not only of 'the usufructs of the coconut tope but also of the land therein. In this view, it chose to reverse the judgment and decree of the first Court in respect of Cadastre No. 86 and decreed the suit of the plaintiff in respect of this item also. Thus, the plaintiff has now obtained the reliefs he asked for in respect of Cadastre No. 86 also. This second appeal is directed against the judgment and decree of the lower appellate Court.

2. At the time of admission of this second appeal, the following substantial questions of law were mooted out for consideration

'1. Whether the lower appellate Court was right in its interpretation of the Tamil word 'kuthakai' relating to coconut trees, would include the land also?

2' - Whether the lower appellate Court was right in holding that akuthakai tharar'of coconut trees for collecting the usufruct would be entitled to the benefits of the Pondicherry Cultivating Tenants Protection Act?

3. 1 must point out that the submission made by the learned counsel for- the second defendant as well as the feared counsel for the plaintiff practically traveled beyond the substantial questions of law mooted out for consideration and I permitted such submissions in order to decide the matter comprehensively. In my view, they do touch upon questions of law, substantial indeed, and a decision on them cannot be obviated. Learned counsel for the plaintiff advanced a particular submission, which was- not projected before the courts below in the manner now advanced before me and that is a question of law simplifier, reflecting an opinion of a learned single, Judge of, this court.

4. Mr. G. Masilamani, learned counsel for the second defendant, would submit that so far as Cadastre No. 86 is concerned, the subject-matter of demise in favour f the plaintiff was only the right to pluck the coconut or,, in other words, learned counsel would submit that it could be only , either a licence to pluck the coconuts or a lease of the usufructs alone and not a lease of the land. Secondly, learned counsel would submit that even if the lease could be considerer's the, lease of- the land, yet, the plaintiff must satisfy the definition of' a 'cultivating tenant' under the Act, in that, he must prove. that the land was leased for agricultural purposes and that the plaintiff as a, member of his family contributes his own physical labour in the cultivation of the land.

5. Mr. J. Stanislas, learned counsel for the plaintiff, Would submit that the demise was not of the usufructs alone, or, in other words, a lease or licence to pluck the coconuts alone, but the lease was of the land also, Learned counsel further advanced it proposition that even assuming that the lease was only of the usufructs. or, in other words, it conferred only a right to pluck the coconuts, the plaintiff would still fall within the definition of a, 'cultivating tenant' under the Act. For this proposition, learned counsel draws support from a judgment of Mohan. J. in Saravanan V. Sri Vedaranyeswarasami Devastanam : AIR1982Mad396 .

6. Before I go into the other questions, it has become incumbent for me to examine the extreme contention put forth by the learned counsel for the plaintiff. Mohan J. in the decision referred to above, had to deal with a case where the plaintiff laid the suit for a permanent injunction contending that a mere right to pluck coconuts could amount to a lease and as long as the lease is subsisting between the parties, he would be entitled to. the TamilNadu Cultivating Tenants Protection Act, 25 of 1955, hereinafter referred to as-the TamilNadu Act, and, therefore, he would not be evicted, nor could his enjoyment be disturbed. In defence, it was contended in that case that a bare right to pluck coconuts would not amount to a lease, but was only a licence. This defence prevailed with the, Courts below and the matter came up before the learned Judge by way of a second appeal. Before the learned Judge reliance, was placed upon two rulings of this Court. one of'a Bench and the other of a single Judge. The decision of the Bench is the one found in-Venugopal Pillai v. Thirunavukkarasu (1948) 2 Mad U 155 : AIR 1949 Mad 148. The decision of the single - Judge is the one found in Ranga Iyengar v. Sivaswami Pandaram : AIR1977Mad364 . The attention of the learned fudge was also drawn to a judgment ' of Ramanujam J. in Venkatachalapathi Odayar v. Rajalakshrm Ammal O. 981) li Mad U It, hut, ' those not to follow the same. Presently I will have occasion to discuss the, import of these decisions, but suffice it to, point out at this juncture that Mohan J. opining that the rulings in. Venugopal Pill4i v. Thirunavukkardsu : (1948)2MLJ155 and Ranga lyengar v. Sivamani Pandaram : AIR1977Mad364 have decided the question faced by him, upheld the plea of the plaintiff in that case, allowed the second appeal holding the plaintiff to be a lessee.

As against this, Mr. G. Masilamanai, learned counsel for the second defendant, would submit that the plaintiff could derive no support from the above ruling of Mohan, J. for a decision on the quest ion as to whether the plaintiff could fall within the definition of a 'cidtivating tenaw within the meaning of the Act ' the provisions of which are more or less in pari materia with the provisions of the Tamil Nadu Act, in view of the decision of a Bench of this Court in Govindasami v. Mahalakshmi Aminal, (1963) 2 NLJ 137, where the Bench found that the grant of the usufructs of the coconut trees would not amount to any lease of the land and the lessee under such demise would not be a cultivating tenant under the Tamil Nadu Act. Learned counsel submitted that the attention of Mohan,1was not drawn to this judgment. of the Bench, which is squarely on the point and the other two rulings relied on by the learned Judge did not in fact decide this moot question as to when and how a person could fulfill the character of a 'cultivating tenant' and hence, the appropriate ruling to be followed is the one expressed by the Bench in Govindasami v. Mahalakshmi Ammal (1963) 2 M U 137. In view of these submissions, I am obliged to examine the rulings referred to above to find out and express an opinion as to which of the rulings should be appropriately applied with reference to a question of the present nature, arising under the Act, the provisions of which, as stated above, are more or less in pari materia with the provisions of the TamilNadu Act.

7. In Venugopala Pillai V. Thirunavukkarasu (1948) 2 M U 155 : AIR 1949 Mad 148, Rajamannar O. C. J. and Yahya Ali, J. dealt with the question as to whether the right to tap the coconut trees for toddy would confer the right of a lesee or only that of a mere licence. It was a case of a lease of coconut trees for the purpose of drawing toddy. The document which was executed between the parties showed that the lessee obtained the right only to the toddy yield from the trees and the right to enter upon the land for the said purpose. But, it was clear from it that the lessee (lid not obtain any right in law to the land. It was held by the Bench that so fai as the land was concerned, the lessee was a mere licencee and his right to enter into the land was only so long as he had the right to enjoy the toddy yield from (he trees. There was a further question in that case, namely, whether such a right as was granted to the lessee, the right of drawing toddy would be 'immovable property' the definition of that term in the Transfer of Property Act. I must frankly point out that such a question does not arise for consideration at all in the present case, and !his has also been as pointed out by t be Bench in Govindasami v. Mahalakshmi Ammal (1963) 2 Mad U 137. The following observation of the Bench in 4Govindasami v. Mahaiakshini Arnmal (1953) 2 Mad U 137 clearly brings out the inapplicability of the ratio of the Bench in Venugopa) Pillai v. Thirunavukkarasu (1948) 2 Mad U 155 : AIR 1949 Mad 148 to the question which has directly arisen under the Act :

'We are not however concerned in this case with any such provision of the Transfer of Property Act, or whether a lease of usufruct from trees will be immovable property-, what we have to see is whether there has been a lease of the land. There can be no doubt that the appellant's right to enjoy only the coconut yield from the trees which derived their nutriment from the land. It may be that such a benefit amounts to an interest in immovable property. But that is not the same thing as saying that there has been a transfer of the land itself. In the case cited above, the distinction that there could be a transfer of interest in immovable property without there being a transfer and the land has been recognized: -

8. The question has got to he primarily examined with reference to the definition found adumbrated in the Act. Certain definitions need advertence for the purpose of appreciating the question assessing the same and answering it one way or the other. See. 2( ' a) of the Act defines 'cultivating tenant' as follows: -

'cultivating tenant' means a Person who contributes his own physical labour or that of any member of his family, in the cultivation of any land belonging to another, under an agreement express or implied, on condition of paying rent therefor in cash or in kind or delivering or receiving a share of the produce and includes : -

(i) any such person who continues in possession of the land after the determination of the agreement ;

(ii) the heir of such person, if the heir contributes his own physical labour or that of any member of his family in the cultivation of such land ;

(iii) a sub-tenant if he contributes his own physical labour or that of any member of his family in the cultivation of such land ;

(iv) any such sub-tenant who continues in possession of the land notwithstanding that the person who sublet the land to such sub-tenant ceases to have the right to possession of such land; and

(v) a person who cultivates the land on payment of waram ;

but does not include a mere intermediary or his heir: -

See. 2 (b) defines 'cultivation' as follows -

' 'Cultivation' means the use of land for the purpose of agriculture or horticulture arid a person is said to carry on personal cultivation on a land when lie contributes his own physical labour or that of the members of his family in the cultivation of that land'. S. 2(f) defines 'land' in the following terms ' 'land' means the land used for the purpose of agriculture or horticulture and includes any building, or any waste vacant or forest land appurtenant thereto, and any house site belonging to the landlord and let to the cultivating tenant under the same agreement of tenancy;'

Similar definitions occurring in the Tamil Nadu Act were the subject matter of scrutiny for the purpose of finding out an answer for a similar question arising more or less on similar facts. in Govindasami v.Mahalakshmi Ammal (1963) 2 Mad U 137. The Bench concentrated on two aspects, namely, as to whether there was a transfer of the land by way of a lease, express or implied, and secondly, whether such transfer was for agricultural purposes. Construing the contents of the document involved in that case, the Bench held that there had been no lease of tire land. But, the Bench has further countenanced that even if the first question is to be answered in the affirmative, yet, the lease could not be automatically regarded as one for agricultural purposes in the absence of satisfaction of the other tests of 'agriculture'. Reference was made to the decision of the Supreme Court in Commr. of Income-tax v. Benoy Kumar Sahas Roy : [1957]32ITR466(SC) . The Supreme Court pointed out that the term 'agriculture' would comprise within it (1) basic operations like tilling of the land, sowing seeds, planting etc., such basic operations requiring expenditure of human skill and labour on the land itself and (2) other operations which have to be resorted to by the agriculturist and which are absolutely necessary for the purposes of effectively raising the produce from the land, referred to the subsequent operations like protecting the crops, pruning, cutting, harvesting etc. The Supreme Court held that where there had been no sowing or planting but only subsequent tending and protection of the produce as in the case of a forest, it would not be agriculture. This view was reiterated in the subsequent pronouncement of the Supreme Court in Commr. of Income-tax, Bihar and Orissa v. Ramakrishna Deo : [1959]35ITR312(SC) . After adverting to the above dicta of the Supreme Court, the Bench in Govindasami v: Mahalakshmi Amnial (1963) 2 Mad U 137 observed as follows -

'......What is therefore essential to constitute an agricultural operation is the tilling of the land, sowing seeds, planting and similar operations on the land. The mere presence of subsequent operations without there being the basic operations referred to above, as in the case of forest produce and spontaneous growth, could not be agricultural operations, In other words, if there are no basic operations as referred to above, there cannot be an agricultural operation'.

9. On the facts of that case, the Bench held that there was no demise of the land at all. This decision of the Bench is squarely on the point and has discussed the provisions of the Tamil Nadu Act. The provision of the Act being similar to the provisions of the Tamil Nadu Act, there cannot be any ambiguity that the decision of the Bench in Govindasami v.Mahalakshmi Ammal (1963) 2 Mad U 137 must hold the field until and unless overruled by a larger Bench of this court or by a decision of the highest Court in the land. The Bench, in Govindasami v.Mahalakshmi Ammal (1963) 2 Mad U 137 categorically pointed out the inapplicability of the ratio in Venugopal Pillai v.Thirunavukkarasu (1948) 2 Mad U 155 : AIR 1949 Mad 148, to the question as to when a person could be a cultivating tenant, arising under the Tamil Nadu Act, which question was the,samp as the one which has arisen before me, of course, under the Act.

10. Coming to the ruling of the single Judge, V. Ramaswami, J. in Ranga lyengar v. Sivaswami Pandaram : AIR1977Mad364 , which has alsobeen referred to by Mohan, J. I find there the question arose and which came to be decided by V. Ramaswami, J. was as to whether a lease of the right to collect the usufructs from the coconut trees was anagricultural lease of an immovable property so as to entail determination of such lease, and the learned Judge did find that there was no lease of the land itself, yet, after adverting to the decision in Venugopal Pillai v. Thirunavukkarasu (1948) 2 Mad U 155 : AIR 1949 Mad 148,held that it was an agricultural lease with respect to immovable property, and , in the absence of termination of such lease, the suit for recovery of possession 'was not maintainable. That was also not a decision rendered on the question as to when a person could be a cultivating tenant with reference to the provisions of either the Tamil Nadu Act, or the Act, on a construction of which alone an answer to the question could be found, as done the Bench in Govindasami v. Mahalakshmi4Animal (1963) 2 MLJ 137.

11. Apart from any other test to be satisfied to find out whether a person could claim the benefits and protection as a cultivating tenant under the Act, primarily it has got to be established that the demise was of the land and such a demise was for cultivation, the meaning of which is the use of the land for the purpose of agriculture or horticulture. Sec. 2(f) of the Act says that 'land' means land used for the purpose of agriculture or horticulture. The word 'agriculture' , means the performance of operations like tilling of the land, sowing of the seeds or planting in order to raise products of some utility and the nature of the! products raised on the land is immaterial. The primary sense in which the term 'agriculture' is used is agerfield and culture- cultivation i.e., cultivation of the field for purposes of effectively raising produce . from the land. The process of raising the produce from the land by performance of operations is agriculture' The term 'agriculture denotes the integrated activity of a person beginning with tilling of the land, sowing of the seed, weeding, tending harvesting and rendering the produce fit for the market. Agriculture, with its grammatical variations and cognate expressions, shall include horticulture. The strict meaning of ,agriculture' according to its derivation, means the cultivation of a field, the cultivation of an open space, as opposed to horticulture - the cultivation of a comparatively small enclosed space. Agriculture includes horticulture. These are primary aspects to be adverted to and satisfied before it could be stated that there has been a transfer of the land under a tenancy agreement, express or implied, for cultivation, meaning thereby the use of the land for the purpose of agriculture or horticulture. There is a further test contemplated under the Act and that is, the tenant must contribute his own physical labour or that of any member of his family in the cultivation, so that he could become a cultivating tenant.

The Bench in Govindasami v Mahatakshmi Animal (1963) 2 Mad U 137 had no occasion to advert to this last test because, on the application of the first of the two primary tests, it found that there had been no demise of the land at all. The Bench also countenanced that it is not necessary for the purpose of an ,agricultural lease that the lessee should do both the basic as well as the subsequent operations; it would be sufficient if the basic operations had been done by some body else even years earlier; and both sets of operations need not necessarily have been done by the same individual or within a specified period of time. It was further pointed out that there can be an agricultural lease in regard to coconut (trees planted already and existing on the land at the time the lessee takes the property on lease. On the whole, the decision of the Bench reiterates that two primary tests should be satisfied, namely that the lease should be of the land and it should be a lease for agricultural purposes. It must add that the tenant must -further satisfy the test of contribution of his own physical labour or that of any member of his family in the cultivation of the land. This is the requirement of the Statute. With due respect, I must point out that neither the provisions of the TamilNadu Act nor the above tests have been adverted to by Mohan, J. in Saravanan v. Sri Vedaranyaswasraswami Devastanam : AIR1982Mad396 . Obviously, the attention of the learned Judge was not drawn to the decision of the Bench in Govindaspmi v. Nlahalakshmi A mmal (1963) 2 Mad U 137. The answer to the question of the present nature cannot be found by merely adverting to the aspect as to whether the lease was of an immovable property. The ingredients to be satisfied under the TamilNadu Act to find out as to whether a person could be a cultivating tenant under it, have also not been adverted to by Mohan, J. Mohan 'declines to follow the decision of Ramanujam,J. in Venkatachalapathi Odayar v. Rajalakshmi Ammal (1981) 1 Mad U 11. In my view, this is of no consequence at all, because, Ramanujam, J. also had no occasion to consider the provisions of the Tamil Nadu Act to spell out as to whether a person was a cultivating tenant with the meaning of the Tamil Nadu Act. There fore, the learned Judge was more concerned with the question as to whether the transaction between the parties is a lease or a licence, so as to find out whether there should be determination of the tenancy in case the transaction is a lease, or a mere revocation of the licence in case of the transaction is a licence.

The discussion which has preceded, obliges me to hold that the ruling in Govindasami v. Mahalakshmi Aminal (1963) 2 Mad U 137 is strictly on the point and it will have to hold the field, and that is the rule that will govern the proposition arising in this case. If this position is appreciated, I cannot subscribe my support to the extreme proposition put forth by Mr. J. Stanislaus, learned counsel for the plaintiff, that even in a case where the lease is of the usufructs alone or in other words the grant is only of a right to pluck the coconuts, still the plaintiff could be equaled to a cultivating tenant within the meaning of the Act.

12. But, eschewing of the extreme contention put forth by Mr. J. Stanislaus, learned counsel for the plaintiff, would not bring about a solution to the other questions, namely as to whether there was, in fact a transfer of the land for cultivation and further as to whether the plaintiff satisfied the definition of a cultivating tenant under the Act.

13. Mr. G. Masilamanai, learned counsel for the second defendant, would submit that except for a reference to the land in one of the receipts in Ex. A. I series, the receipts for payment of rents, there is no o1her material evidence placed in the case by the plaintiff to establish that the transfer was of the land also. Learned counsel would submit that the lower appellate Court erred in brushing aside Exs. B. 4 and B. 5, the documents of lease executed by the plaintiff himself for faslis 1388 and 1389 wherein it has been made clear that the plaintiff his got only a right to the usufructs from the coconut trees. Learned counsel for the second defendant would also express a grievance over the lower appellate court drawing an adverse inference against the defendants from the copy of the petition filed before the Revenue Court in spite of the specific averments therein that the plaintiff is not a cultivating tenant in respect of the coconut trees, though he claims to be one.

14. On these aspects, Mr. J. Stanislaus, learned counsel for the plaintiff, has much to say in answer. He submits the Cadastre No. 86 has been written by the concerned of the first defendant temple in one of the receipts in Ex. A. 1, series and further, there is a specific reference, to the land in that receipt; in Ex. A. 6 a copy of the petition filed by the first defendant for eviction of the plaintiff under the Act, Cadastre No. 86 has been specifically mentioned in column No. 5 thereof, though in some other place it is stated that the plaintiff is not a cultivating tenant in respect of the coconut trees, in spite of his claiming to b one, Exs. B.4 and B. 5 cannot at all be relied on because, 'as pointed out by the lower appellate Court, the writings therein above the signatures of the plaintiff, which writings refer to the right to enjoy the coconut alone, are subsequent interpolations in different ink; and the lower appellate Court has appreciated these factual aspects when it came to the conclusion that the lease was not a lease of the usufructs alone, but of the land also.

15. May be, I would have been persuaded to accept the submissions made by the learned counsel for the plaintiff. But I could not do so because the judgment of the lower appellate Court suffers certain legal infirmities which cannot be omitted to be taken note of by me. The lower appellate Court has not even set out the points for determination. It is true that this by itself may not vitiate its judgment. But, it has not assessed the questions at all after, adverting to the entirely of the evidence oral and documentary, placed in the case. The lower appellate Court has chosen to advert to Exs. B.4 and B. 5, and Ex. A 8 alone. though there is a reference to the earlier petition for eviction taken out by the first defendant-, without pointedly referring to the exhibit number. Stating that the first defendant has not produced an), document to show as to when the land in Cadastre No. 86 has been leased out, the lower appellate Court has drawn the inference that the lease must of the land also. I am notable to appreciate and sustain this negative approach on facts. I find that Exs- B. 4 and B. were not marked US Such consent, so that it can be argued that the plaintiff cannot eschew consideration of these documents by pointing out all alleged interpolations. But Mr. G Masilarnani, learned counsel for tile second defendant, would submit that the lower appellate Court ought not to have opined that the writings therein referring' to the enjoyment of the usufruct alone, art! subsequent additions, without giving an opportunity to the parties to explain this aspect.

As stated above Exs. B. 4 and B. 3 have not been marked by consent. The parties were not called upon to explain and comment upon any discrepant writings found therein by rendering- [he appropriate evidence therefore. In the absence of such evidence, it will not be fair and proper to draw any adverse inference from these documents. I also find that significantly there is a total omission on the part of the lower appellate Court to advert to the oral evidence and ,he learned counsel appearing for both sides before me are very much on this lacuna in the judgment of the lower appellate court. The evidence has not been assessed not only on the question with reference to the property demised but also with reference to the character of the plaintiff being- a cultivating tenant under the Act. The solution to the controversy that has arisen between the parties cannot be found by giving a finding only on the question as Io whether the demise was of the usufructs alone or of the land also, but there ought to be a probing into the further question as to whether the plaintiff fulfils I fie character of a cultivating- tenant under the Act and an answer found therefor on factual materials. The second-aspect has been glaringly omitted to be taken note of both by the first Court as well ai the lower appellate Court. As a final court of' fact, the lower appellate Court, is duty bound to go into these questions and find out an answer and I feet, that in the interest of justice, the matter requires a -remittal to and re-investigation by the lower appellate Court on these relevant questions. This obliges me to interfere in second appeal.

16. Accordingly, this second appeal is allowed and the matter AS 136 of 1081is remitted to the file of the lower appellate Court for it to consider the same afresh in the light of the observations made in this judgment. The lower appellate Court will also advert to the other relevant question as to whether the plaintiff fulfils the character of a cultivating tenant under the Act. For this, the lower appellate court will also find out as to whether the land was transferred for cultivation, namely, the use of the land for purposes of agriculture or horticulture, and as to whether the plaintiff contributes his own physical labour or that of any member of -his family in the cultivation of the land. The parties are at liberty to place further evidence as they may feel necessary in the matter. In the peculiar circumstances of the case, the parties are directed to bear their respective costs throughout, up to this stage. The appellant is entitled to the refund of the -court-fee paid on the memorandum of second appeal.

17. The parties are directed to appear before the lower appellate Court on January 30, 1984, to take direction from that court with regard to the further prosecution of the matter.

18. Appeal allowed.


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