1. The plaintiff is the appellant. The suit was filed by him for a permanent injunction or in the alternative for possession. The suit property is described as R. S. 146/3 and 146/10, measuring 1 acre and 32 cents and 1 acre and 44 cents respectively with cocoanut trees, bamboo clusters, jack trees, neem trees and other trees. The plaintiff is the owner of the suit property. According to the plaintiff, originally under a document Ex. A-1, dated 17-8-1957, the defendant was given the right to collect usufruct from the cocoanut trees standing upon the two survey numbers on payment of a sum of Rs. 400 and also 400 cocoanuts and 400 cocoanuts leaves, This right was conferred on the defendant only for a period of one year. Such right was given every year subsequently and the defendant executed similar documents under Exs. A-2 to A-8 each for a period of one year upto the year ending 17-8-1967. For the period subsequent to 17-8-1967, there was no document in writing. But it is admitted that the defendant had been in possession and enjoyment even subsequent thereto under similar terms and conditions. It may be mentioned that some time from the year 1966, the amount payable by the defendant in lieu of the interest granted to him was increased from Rs. 400 to Rs. 1,000 and 600 cocoanuts and 600 cocoanuts leaves. It is the case of the plaintiff that what was granted to the defendant under the document Exs. A-1 to A-8 was only a licence to cut and remove the cocoanuts in the cocoanut tope in the suit property and that neither lease in respect of the land nor any lease in respect of the cocoanut trees was granted. The defendant, on the other hand, contended that what was granted to him is a lease of the land as also the trees thereon, that it is an agricultural lease and that therefore he is entitled to the protection against eviction except as provided under the Cultivating Tenants Protection Act. The defendant also pleaded that even assuming that the lease did not cover the land on which the cocoanut trees were standing but was only a lease of the trees with a right to cut and remove the usufruct thereon, still it is an agricultural lease. He further contended that since there was no notice terminating that lease, the plaintiff is not entitled to recover possession from the defendant.
2. Both the courts below held that the lease was both for the land and the trees thereon and that the defendant is not a licencee either in respect of the land or in respect of the trees and usufruct thereof. The courts below also held that since there was no valid termination of the lease, the plaintiff has no right to recover possession also. It is against these judgments and decrees of the courts below, the plaintiff has filed this second appeal.
3. The learned counsel for the appellant contended that Ex. A-1 executed by the defendant clearly shows that the lease was not of the land and it was not a lease either in respect of the land or the cocoanut trees but it only evidences the right of the defendant to cut and remove the cocoanuts for a period of one year in consideration of the payment of Rs. 400, 400 cocoanuts and 400 cocoanut leaves which in effect would only amount to a licence. Since the other documents Exhibits A-2 to A-8 are in similar terms except the last one Ex. A-8, wherein the amount of consideration was increased, it is enough if we decide the question with reference to Ex. A-1. Though it is styled as a leases deed, the document provides that in consideration of the payment of Rs. 400 and 400 cocoanuts and 400 cocoanut leaves, the defendant is entitled to cut and remove the cocoanuts and cocoanut leaves from the tope for a period of one year from 17-8-1957. The document further provided that at the end of the year, the defendant will deliver possession of the tope after cutting and removing only those ripe cocoanuts and ripe cocoanut leaves. There was a prohibition against cutting the green leaves and cocoanut trees by the defendant. The schedule to the document further showed that the right given to the defendant was only with reference to the cocoanut trees standing on the two survey numbers, viz., R. S. 146/3 and 146/10. Though the document does not speak about the delivery of possession to the defendant, it is seen from the evidence that the property is enclosed by a fence and it has got a gate for entry and the defendant was having a lock in this gate. The question for consideration is whether the right conferred under this document amounts to either a lease of the land or a lease of the trees or it is merely a licence in respect of both.
4. The courts below held that it was a lease of both the land and the trees. In coming to this conclusion they relied on what they stated as to the purport of the document and other circumstances. The main reliance was placed on the fact that the suit property is fenced on all sides with a gate on the eastern side which is kept under lock and key by the defendant. It may also be taken that though there is no specific recital in the document that possession of the land was also given to the defendant., in fact, possession was given to him since the document directed the defendant to deliver possession of the property at the end of the year which would only be on the basis that the possession was given to the defendant. But there circumstances, in my opinion, are not in any way inconsistent with the fact that what was conferred on the defendant was a right to cut and remove the cocoanuts from the cocoanut trees during the lease period and so far as the land is concerned, no interest in the land or lease was granted to the defendant. The document in terms conferred only a right to cut and remove the cocoanuts and the leaves and does not confer any leasehold right in respect of the land as already stated, the remarks column to the schedule to the deed specifically mentioned that only the cocoanut trees in the tope had been leased to the defendant. There is no evidence also to show that the amount payable under the document was fixed with reference to any right conferred on the defendant in the land itself. It is seen from the plaint that there was 165 to 170 cocoanut trees. The amount of Rs. 400 payable suggests that it could have been fixed only with reference to the usufruct of the trees and not with reference to any leasehold right conferred with respect to the land.
5. So far as exclusive possession is concerned, under the possession given to the defendant he could only exclude third parties from entering the property as he had to protect the income from the property for his own use. But in the face of the recitals in the documents, the defendant could not be said to convey an exclusive possession against the plaintiff so as to infer a lease of the land itself. The evidence discloses that occasionally the defendant used to raise Mochais, horse-gram etc., in the intervening space between the trees. But this could be an unauthorised act as the document itself does not confer any such power on the defendant to cultivate the land itself. The right of entry given to the defendant in respect of the land possession of the same would only amount to a licence in order to effectually enjoy the right to cut and remove the cocoanuts from the cocoanut trees and the other income from the trees. Therefore, neither the terms of the document nor the evidence disclose that any right in the land itself was granted to the defendant. The courts below also relied on a decision of this court reported in K. M. G. Mudaliar v. Sri Ellamman Temple, , wherein this court held, relying on certain earlier decisions, that if the lessee was permitted to pluck not only the existing yield or profit but also future yields that would grow as a result of future vegetation, it would amount to a lease of the land itself. The decision in the case referred to above related to jasmine plants and it was for a period of five years. On the peculiar facts in that case with reference to the recitals in that document, this court came to the conclusion that there was a lease of the land itself. On the other hand, the very apposite to be referred to is the decision of this court reported inVenugopala Pillai v. Thirunavukkarasu, 1948-2 Mad LJ 155: (AIR 1948 Mad 148). That related to a lease of the cocoanut trees in a cocoanut garden for toddy tapping. The plaintiff who was the owner of the property leased the right to tap toddy on the cocoanut trees in favour of the defendant therein for a period of three years with a right of renewal for one more year after the expiry of three years on the same terms and conditions. In consideration of such enjoyment of the usufruct, the defendant was to pay a monthly rent of Rs. 150 in cash. This Court held that the defendant could not be held to be a lessee of the garden as such. So far as the land was concerned, he was only a licensee and his right to enter upon the land and use the land was only so long as he had the right to enjoy the toddy yield from the trees. This view of the Division Bench had not been dissented in any other decision. In fact, this decision was followed by another Division Bench in Sultan Ahmed Rowther v. State of Madras, .
6. In the decision in Venugopala Pillai v. Thirunavukkarasu, 1948-2 Mad LJ 155, (AIR 1948 Mad 148) it was also held that the defendant's right to tap the cocoanut trees and obtain toddy is in the nature of immoveable property because it is a benefit which arose out of the land and the right conferred by the agreement would be in the nature of a leasehold right. It was also held in this decision that the lease of toddy yield is a lease for agricultural purposes and therefore, sufficiently reasonable notice should have been given before it could be property terminated. In so holding, the Division Bench took the view that in spite of S. 117 of the T. P. Act since the principle of issuing notice under S. 111 of the T. P. Act was based on justice, equity and good conscience, a notice terminating the lease is required before a plaintiff could recover possession of the property from the lessee. The decision in Brahmayya v. Sundaramma, AIR 1948 Mad 275(FB) also took the view that although S. 106 of the T. P. Act does not apply to the leases for agricultural purposes by virtue of S. 117 of the T. P. Act, nevertheless the rules in S. 106 and in the other Ss. 105 to 116 in Chap. V of the T. P. Act are founded upon reason and equity and they are the principles of English Law and should be adopted as statement of the law in India applicable to agricultural leases also. But the learned counsel for the appellant pointed out that this view of the court requires reconsideration in view of the decision of the Supreme Court in Namdeo v. Narmadabai, . That was a case where the question for consideration was whether the provisions of S. 111(g) as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is applicable to an agricultural lease on any principle of justice, equity and good conscience. While considering this question, the Supreme Court observed with reference to the Full Bench decision of our court thus:
"In our opinion, the above statement is again formulated in too wide a language. S. 105 gives a statutory definition of the word 'lease'. It enunciates no principle of equity. The relation of lessor and lessee is one of contract and in Bacon's Abridgment a lease is defined as contract between the lessor and the lessee for the possession and profits of land on one side and recompense by rent or other consideration on the other. The statute has given a more comprehensive definition of the term. S. 107 makes registration of a lease compulsory. This section again does not concern itself with any principle of justice or equity. Section 108(j) enacts that the lessee may transfer absolutely by way of mortgage or sub lease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it. The law in India and England on this subject is not the same and if cannot be said that this sub-section enacts or enunciates any general principle of equity. Parts of Ss. 109, 110, 111 contain mere rules of procedure or rules of a technical nature. These certainly cannot be said to be based on any principles of equity. In our judgment, therefore, the statement in this decision that Ss. 105 to 116, T. P. Act are founded upon principles of reason and equity cannot be accepted either as correct or precise. Of course, to the extent that those sections of the Act give statutory recognition to principles of justice, equity and good conscience they are applicable also to cases not governed by the Act."
7. Thus, the Supreme Court did not hold that the principles of none of the provisions of Ss. 105 to 116 of the T. P. Act could be invoked in case of agricultural leases. But on the other hand, if a provision of the section in the T. P. Act is considered as a statutory recognition of the principles of justice, equity and good conscience that would have to be held applicable to the cases of agricultural leases also. The definition of immovable property includes standing trees and only standing trees is excluded under the T. P. Act. Since in this case, the lease was not a lease of the land but it was a lease of the right to cut and remove cocoanut from the trees standing on the immoveable property, it is a lease of immoveable property itself and as held by this court, it is also an agricultural lease. The question whether notice of termination is required before a suit for recovery of possession is filed had therefore to be considered with reference to the applicability of Ss. 106, 111(h) and 116 of the T. P. Act.
8. In this case, as already stated, for the period subsequent to the year ending 17-8-1967, there is no document. But as admitted by the plaintiff himself, the defendant was paying the rent as usual and the plaintiff was accepting the same without any protest. It is also seen that the plaintiff had sent a letter to his agent under Ex. D-1 to permit the defendant to continue in possession. The defendant was, therefore, holding the leasehold right even subsequent to the expiry of the period covered by Ex. A-8 which is the last of the lease documents. Though the lease deed Ex. A-8 was for a period of one year when the defendant was continuing in possession subsequent to the expiry of that period, he could not be holding it only for one year thereafter and his subsequent holding should be on the basis of a lease for an indefinite period both on the principle of holding over and on the basis of an oral grant of lease. By reason of the evidence in the nature of Ex. B-1 available in this case, and also as a person holding over, the defendant shall be held to be a tenant even for the period subsequent to 17-8-1967. Since the lease is for agricultural purpose, it is also to be deemed to be one from year to year. The decisions of this court in Brahmayya v. Subramaniam, AIR 1948 Mad 275(FB) and Venugopala Pillai v. Thirunavukkarasu, Air 1948 Mad 148 clearly hold that treating an agricultural tenancy as one from year to year is merely a statutory recognition of justice, equity and good conscience and that therefore Ss. 106 and 116 of the T. P. Act are clearly applicable. The decision of the Supreme Court in Namdeo v. Narmadabai, had not overruled or dissented from the decisions of this court in this regard. The only further question that has to be decided in this case is whether S. 111(h) of the T. P. Act is applicable to such agricultural lease.
9. The decision of the Supreme Court that S. 111(g) of the T. P. Act was not applicable was in the view that the statutory requirement to issue notice in the case of forfeiture is not based on any pre existing law or justice, equity and good conscience. In fact, the ground on which the forfeiture is provided under S. 111(g) of the T. P. Act does not show that there was any justice or equity in favour of the tenant who had broken the conditions of the lease or denied the title of the landlord or when he was adjudicated as insolvent which are the grounds of forfeiture. On the other hand, when a tenant is in possession on the basis of a lease for an indefinite period he is entitled to assume, and justly, that he will be permitted to continue so long as he pays the rent and complies with the conditions of the lease and if the landlord wanted to terminate the lease in those circumstances, it is really just and necessary that he should intimate and terminate the tenancy so that the tenant could be put on notice that the tenancy is going to come to an end. The provision of notice to determine the lease in such cases, I consider is one based on justice, equity and good conscience and that provision is to be applied even in the case of an agricultural lease. In this case, admittedly, there was no notice of termination of the lease before filing of the suit. Thus, though the appellant is well founded in his contention that there was no lease of the land itself since there was a lease of right to collect the usufruct from the cocoanut trees which amounts to an agricultural lease with respect to the immovable property and since there was no notice terminating such agricultural lease, the suit is liable to be dismissed. Thus, the judgments and decrees of the Courts below dismissing the suit do not call for interference for the reasons given in this judgment though not on the grounds mentioned by the courts below.
10. The second appeal accordingly fails and it is dismissed. There will be no order as to costs. No leave.
11. Appeal dismissed.