1. The defendants are the appellants. The suit was filed by the plaintiff for possession and for recovery of a sum of Rs. 9,466-10 as and by way of mesne profits from 1st April. 1963, till date of suit and for future mense profits. The plaintiff is the son of one Vythilinga Reddiar. The plaintiff, his father and paternal uncle constituted a joint Hindu family. The plaintiff's father leased the properties under a registered lease deed dated 9th July, 1965 (Original of Exhibit A-1) to Purushottham Reddiar, father of defendants 1 and 2 for a period of seven years. The rent payable was fixed at Rs. 1,000 and 54 bags of paddy per year. There were defaults in payment of the rent. Suit were filed for recovery of the same and ultimately the rents has been recovered for the entire period of seven years. The present suit claim was for the period subsequent to the expiry of the lease under Exhibit A-1, viz., 1st April 1963 to 15th June 1964 the date of suit. There was a partition of 21st October, 1959 under the original of Exhibit A-4 in the family of the plaintiff. Under this partition, the plaintiff was allotted the suit properties. The plaintiff claimed that the tenancy in favour of the father of the defendants expired by efflux of time on 31st March 1963, and on and from 1st April, 1963, the possession of the defendants was without any legal right and that the plaintiff was entitled to possession on and from 1st April, 1963. The plaintiff issued a notice on 24th March, 1964 (Exhibit A-2) demanding the defendants to surrender possession. The defendants, by their reply dated 31st March, 1964, claimed that they were cultivating tenants and entitled to the protection of the Madras Cultivating Tenants Protection Act, and raised certain other contention also. The plaintiff has thereupon filed the present suit in the Court of the Subordinate Judge of Cuddalore.
2. After a consideration of the oral and documentary evidence, the learned Subordinate Judge held that the defendants were not tenants after 31st March 1963, that there was no tenancy by holding over, that the defendants were not cultivating tenants entitled to the protection under the Madras Cultivating Tenants Protection Act, 1955 that in any case, even if they were considered to be cultivating tenants, in view of the denial of title of the landlord, the defendants were not entitled to the protection under the Act. On the question of notice, the learned Subordinate Judge held that since the case was one of termination of tenancy by efflux of time, no notice was necessary. The learned Subordinate Judge also decreed the claim for arrears of rent as prayed for and directed that future profits be determined under Order 20, Rule 12, Civil Procedure Code. The defendants have filed this appeal against the Judgment and decree of the lower Court.
3. Pending the suit, the defendant filed O. P. No. 10 of 1964, on the file of the Revenue Divisional Officer, Chidambaram, under Section 3(3)(a) of the Madras Cultivating Tenants Protection Act (XXV of 1955) (hereinafter referred to as the Act), for permission to deposit the rent for the period from 1st April 1963 to 31st March, 1964, and filed another petition O. P. No. 10 of 1965 for permission to deposit the rent for the period from 1st April 1964 to 31st March 1965. On these petitions, the Revenue Divisional Officer, Chidambaram, held that the defendants herein, who were the petitioners before him, were cultivating tenants and that therefore they were cultivating tenants and that therefore they were entitled to file the petitions. As against the Order in O. P. No. 10 of 1964 and O. P. No. 10 of 1965, the plaintiff in the suit has filed Civil Revision Petitions Nos. 642 of 1966 and 641 of 1966 respectively.
4. The first question for consideration in this appeal is whether the defendants are cultivating tenants within the meaning of Madras Act XXV of 1955. The lease deed Ex. A-1 covered the period from 1st April, 1956, to 31st march, 1963 and it was in favour of the defendant's father, who died on 21st March 1963. The period of the lease expired on 31st March 1963, There was neither a plea of tenancy by holding over, nor was there any evidence of holding over. As the tenancy was for a fixed term, under the Transfer of Property Act no notice is required for termination and as such there was a termination of tenancy on and from 31st March, 1963. The defendants were, therefore, not tenants at all during the period from 1st April, 1963 to 15th June, 1964 when the suit was filed. Even assuming that they were tenants of the plaintiff they will have to prove that they were "cultivating tenants" within the meaning of the Act. Section 2(aa) of the Act defines "cultivating tenant". It has been repeatedly held that in order to get the benefit of the Act, it is necessary for the tenant to establish that someone in his family is contributing his physical labour in the cultivation of the land. The first defendant examined himself as D. W. 1 and stated that he would go to the land, plough the same, dig channels for irrigating the same, work the electric motor and do other agricultural operations himself along with his brother, the second defendant, and other agricultural operations himself along with his brother, the defendant and other agricultural coolies. He is a rich mirasdar. It is not believable that D. W. 1 and his brother were themselves contributing their physical labour in the cultivation of the suit lands. D. W. 1 himself states that he used to plough the land and do other agricultural operations, not because he could not afford to employ the agricultural coolies, but because he wanted to do so out of principle. The only other evidence in support of his statement is that of D. W. 2 who was an agricultural cooly. It is seen that D. W. 2 could not be said to be an independent witness either. None of the surrounding or neighbouring mirasdars, nor any other independent reliable witness, have been examined in support of the defendant's case. On the other hand, p. Ws. 1, 2, 3 and 4 have categorically stated that neither the defendants nor any of the members of their family ever used to contribute their physical labour, but that defendants 1 and 2 were cultivating the lands with agents and farm servants. Of course, P. W. 1 is the father of the plaintiff. But, P. Ws. 2 to 4 are independent witnesses, and nothing has been elicited from them in cross-examination which would show that they were either inimical towards the defendants or had any particular interest in the plaintiff to depose falsely. The trial court, which had the opportunity to observe the demeanor of these witnesses, has chosen to rely on the evidence of P. Ws. 1 and 2. We see no reason to interfere with this finding of the court below.
5. But, the learned Counsel for the appellants contends that the defendant's father was a cultivating tenant under the Act and that therefore his heirs would automatically become cultivating tenants and that they need not satisfy the test of 'contributing physical labour in the cultivation.' Assuming that the defendant's father was a cultivating tenant there is no warrant for this contention in the clear language of the provisions of the Act. In our opinion, the definition of "cultivating tenant", with reference to the heirs, could be paraphrased as follows: "Cultivating tenant, in relation to any land, means a person or the heirs of such person, who carried or personal cultivation on such land under a tenancy agreement express or implied." It is therefore clear that the heirs of the original tenants should also satisfy the test of personal cultivation, if they want to claim the benefits of the Act. The object of the enactment also does not lend support to the contention of the appellants. It is also seen from the decision of the Supreme Court in Sudalaimuthu S. N. Chettiar v. Palaniyandavan that before an heir can be given the benefit of the definition of "carry on personal cultivation", it is necessary for him to establish that some one is contributing his physical labour in the cultivation of the land and that that someone is a member of his family. We have, therefore, no doubt that the defendant's are not cultivating tenants within the meaning of the Act.
6. In view of our finding that the defendants are not cultivating tenants within the meaning of the Act and that they are not entitled to the benefits of that Act, the other points that have been decided by the lower Court do not arise.
7. The only other question that remains for our decision is the quantum of mesne profits of damage payable for use and occupation prior to the suit. The total extent of the land is 14 acres 56 cents of dry land, and 6 acres 67 cents of wet land. The plaintiff has claimed in the suit damages at the rate of Rs. 400 per acre for the dry land and 10 bags of paddy per acre for the wet land. In the lease deed Exhibit A-1, a cash rent of Rs. 1,000 per year has been fixed for the total extent of the dry land and 54 bags of paddy for the wet land. We do agree that since the basis of the claim in the suit is different, Exhibit A-1 cannot settle the matter. But, we feel that the claim of Rs. 400 per acre for the dry land is very unreasonable. The claim is based on the allegation that the defendants had raised sugarcane and that therefore a rent of Rs. 400 was reasonable. The evidence of D. W. 1 was to the effect that the total yield if cultivated with sugarcane, would be 33 tons per acre and the expenses of cultivation would come to Rs. 1,600 per acre. But, on the other hand P. Ws. 1 to 3 would state that the yield would be 50 tons per acre and the expenses would be only Rs. 1,500 per acre. This is an exaggerated statement. We also find from the evidence of D. W. 1 that only a small extent, out of the total of 14.56 acres was raised with sugarcane crops. The oral evidence is this not clear and convincing. We have already stated that under Exhibit A-1 a cash rent of Rs. 1000/- was fixed for the entire 14 acres 56 cents. Though this cannot be the basis infixing the quantum of damages, we have to take this as a circumstance. Having regard to the entire facts and circumstances of this case, we consider that a sum of Rs. 1,500/- may be fixed as the damage payable for use and occupation of the dry lands. We may make it clear that these damages, fixed for the period prior to the suit, will not in any way affect the parties letting in proper evidence in the proceedings under Order 20, Rule 12, Civil 'Procedure Code. This amount has been fixed only for the period prior to the suit.
8. So far as the wet lands are concerned, the claim in the plaint itself is 10 bags of paddy per acre, which we consider, is very reasonable. But the plaintiff seems to have valued paddy at Rs. 30 per bag. But we find from the order in O. P. No. 10 of 1964 that the wholesale price for the week-ending 25th April 1964, as notified in the Statistical Supplement to the Fort St. George Gazette dated 10th June, 1964, was Rs. 27.26. The plaintiff will, therefore, be entitled to be paid the value of the paddy, worked at the rate of Rupees 27.26 per bag. The claim in the plaint was for the period from 1st April 1963 to 15th June 1964. But we do not think that damages could be calculated on the basis that it was for 1 year 2 1/2 months. There could not have been any crop during the said 2 1/2 months and there is no evidence also that the defendants raised any third crop in the suit lands. The damages for use and occupation could be fixed only for two crops for the entire period prior to the suit. On that basis, the plaintiff would be entitled to Rs. 1,500 for the dry land for the period prior to the suit, and 66.7 bags for the wet land at the rate of 10 bags per acre. The value of paddy will have to be worked on the basis of Rs. 27.26 per bag. Appellant is liable to pay proportionate costs on the amount so decreed in the trial court and this Court. The decree of the Court below is modified to this extent, and in other respects we confirm the decree and judgment of the Court below.
9. With the above modification the appeal is dismissed with proportionate costs.
10. In view of our finding that the defendants were not cultivating tenants within the meaning of the Act, C. R. P. Nos. 641 of 1966 and 642 of 1966 are allowed. But there will be no order as to costs in the said revision petitions.
11. Appeal dismissed.