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Trustees, Chokkanathaswami Temple Vs. Poovanna Navanna Vadivelmuruga Nadar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1936Mad220
AppellantTrustees, Chokkanathaswami Temple
RespondentPoovanna Navanna Vadivelmuruga Nadar
Cases ReferredRama Chetty v. Arunachalam
Excerpt:
- - 'the holding' clearly means in the context the entire holding, the holding taken as a whole, the holding as defined in section 3(3). the section does not in terms provide for ejectment of a raiyat from a part of the holding......annual rent as fair compensation. on appeal the learned district judge dismissed the plaintiff's suit holding that the suit as laid is not maintainable on the ground that the suit for ejectment for a part of the holding does not lie. two contentions have been urged before me by mr. s. ramaswami iyer for the plaintiff-appellant, namely (1) section 151 read with section 9, madras estates land act, contemplates a suit for ejectment from a part of the holding, at any rate, in cases where the holding consists of distinct parcels of land; and (2) in any event the suit should not have been dismissed and the claim for injunction should have been allowed. before examining the soundness of the contentions and the various decisions relied on, it is necessary to advert to the relevant provisions.....
Judgment:

Venkataramana Rao, J.

1. The plaintiff is the trustee for the time being of Chokkanathaswami temple, Virudunagar. The defendant is a raiyat holding two parcels of land, namely, (1) pymash Nos. 90 and 91 and (2) pymash No. 207 under a patta No. 225 in the village of Allampatti. He put up a building on pymash Nos. 90 and 91 and thereupon the plaintiff instituted this suit praying for two reliefs : (a) To direct the defendant to remove the building which the defendant unlawfully put up as being prejudicial to agricultural operations on the land and to render it fit for cultivation and (b) in case the defendant does not do so, to evict the defendant from the land. The extent built upon is 7 cents and the total area of the land included in the patta is about 56 cents. The Sub-Collector of Sivakasi who tried the suit found that the land by reason of the defendant's act became uncultivable and was rendered substantially unfit for agricultural purposes. He held that money compensation under Section 152 would be adequate and decreed Rs. 50 and an annual payment of six times the present annual rent as fair compensation. On appeal the learned District Judge dismissed the plaintiff's suit holding that the suit as laid is not maintainable on the ground that the suit for ejectment for a part of the holding does not lie. Two contentions have been urged before me by Mr. S. Ramaswami Iyer for the plaintiff-appellant, namely (1) Section 151 read with Section 9, Madras Estates Land Act, contemplates a suit for ejectment from a part of the holding, at any rate, in cases where the holding consists of distinct parcels of land; and (2) in any event the suit should not have been dismissed and the claim for injunction should have been allowed. Before examining the soundness of the contentions and the various decisions relied on, it is necessary to advert to the relevant provisions of the Act bearing on the matter. Section 3, Clause (3) of the Act defines a holding thus:

'Holding' means a parcel or parcels of land held under a single patta or engagement in a. single village.

2. The proviso to this clause runs thus : '

Provided that if the landholder and raiyat so agree in writing, any portion of a holding as above defined shall be treated as a separate holding.

3. As I understand the proviso though a parcel of land is held along with other parcels of land under a single patta, yet for convenience or some other reason the landholder and raiyat may agree to treat that parcel, a portion of the holding, as a separate holding while it still continues as a part of the original holding. It will be a 'separate holding' and not a 'new holding'. Section 9 of the Act provides:

No landholder shall as such be entitled to eject a raiyat from his holding or any part thereof otherwise than in accordance with the provisions of this Act.

4. Thus the provisions of the Act are exhaustive of the remedy of ejectment of a raiyat. A suit for ejectment of a raiyat can only be instituted in a Revenue Court and on the grounds specified in the Act and on no other. The section which provides for ejectment of an occupancy raiyat is Section 151:

A landholder may institute a suit before the Collector to eject an occupancy raiyat from his holding only on the ground that the raiyat has materially impaired the value of the holding for agricultural purposes and rendered it substantially unfit for such purposes.

5. It may be noticed that before the enactment of the Estates Land Act the relief of ejectment was not usually given on that ground: see Raja Varadaraja Appa Rao v. Sunkara Venkatadri (1907) 17 MLJ 197 and Orr v. Mrithyunjaya Gurukkal (1901) 24 Mad 65 and the usual relief awarded was an injunction suited to the nature of the case apparently on the ground that it should not ordinarily be taken as a ground of forfeiture in the case of an occupancy tenant whose rights are assimilated to that of a co-owner: vide Venkatanarasimha Naidu v. Dandamudi Kotayya (1897) 20 Mad 299. The Act for the first time in distinct terms gives this relief and it is circumscribed and limited. It is conditioned on the holding being materially impaired in value and rendered substantially unfit. 'The holding' clearly means in the context the entire holding, the holding taken as a whole, the holding as defined in Section 3(3). The section does not in terms provide for ejectment of a raiyat from a part of the holding. It may be pointed out that this remedy of ejectment is given for breach of the obligation imposed by Section 11; while Section 11 uses the word 'land,' Section 151 uses the word holding.' Remedies for using the land in a holding contrary to Section 11 are provided in Section 151, namely, (1) ejectment from the holding, (2) compensation in addition to or in lieu of ejectment and (3) injunction or the repair of the damage or the waste with or without compensation.

6. The remedy of ejectment thus given is not in respect of the land but of the hold-ling, i.e. the entire holding, while the relief of injunction or the repair of the damage or waste can in the nature of the circumstances only be confined to a portion of the holding in respect whereof the reliefs are sought. This latter was the relief, as already pointed out, given before the Act and it is again provided in the section: see Ramanadhan v. Zamindar of Ramnad (1893) 16 Mad 407 and Orr v. Mrithyunjaya Gurukkal (1901) 24 Mad 65. On principle the ejectment must relate to the entire holding. A landlord cannot break up his tenant's tenure by declaring that he has no longer any right to a portion although he holds the remainder: vide Ram Kanie Mandal v. Ganesh Chunder Sen (1883) 33 CLJ 513. It is an elementary principle of the law of ejectment that in a suit for ejectment one must eject as to all and not as to a part: vide Kamleswari Prosad Singh v. Harbullah Narain Singh (1905) 2 CLJ 369 and K. Rangappa v. K. Bhimappa 1917 36 IC 284. Where it is a single engagement it stands to reason that it cannot at the option of a party be split up into several. I therefore respectfully agree with the interpretation placed on the word holding in Section 151 in Rama Chetty v. Arunachalam 1916 39 Mad 673 that it means 'holding as a whole.' Mr. Ramaswami Iyer urged that Section 9 contemplates ejectment from a part of the holding and that in a case where the holding consists of distinct unconnected parcels Section 151 contemplates ejectment from such a part and he also relied on Bholai v. Rajah of Bansi (1881) 4 All 174. It is very difficult to envisage what exactly was in the contemplation of the legislature when it used the expression 'any part thereof in Section 9. Nowhere in the Act is provision made for the ejectment of a raiyat from a part of the holding while the Act provides for sale or purchase of a part of a holding: vide Sections 111, 125 and 130 or a transfer of a portion of the holding (Section 145) or relinquishment of a part of the holding (Section 149). So the reference to a part of the holding in Section 9 may be to emphasise a prohibition against ejectment save as provided in the Act.

7. I doubt how far it is permissible to deduce from it a possibility of a partial ejectment. It may be suggested that after a raiyat has transferred a part of the holding and gives notice under Section 146 and till the landholder has entered into separate engagements as provided in Section 146(2) both the transferor and the transferee will be in possession of parts of a holding and possibly ejectment of such a part is permissible: vide Narayana Row v. Zamindar of Muktyala Estate 1928 51 Mad 478 or it may refer to cases as already indicated by me under the proviso to Section 3(3) where there is a separate holding constituting a part of the entire holding. It is unnecessary to express any definite opinion because no such questions arise in this case. The argument based on 'distinct parcels' of land is untenable in view of the plain language of the section and the interpretation placed on the word 'holding' by their Lordships of the Judicial Committee in Hari Mohan Misser v. Surendra Narayan Singh (1907) 34 Cal 718 in a corresponding section, Section 23, Ben. Ten. Act, which has been followed in Rama Chetty v. Arunachalam 1916 39 Mad 673. In Hari Mohan Misser v. Surendra Narayan Singh (1907) 34 Cal 718 an indigo factory was built upon a portion of an entire block of land comprised in a holding and let for agricultural purposes and the High Court granted an injunction directing its removal. Their Lordships reversing the decision of the High Court observed as follows at p. 722:

The law which the High Court found to have been violated by the District Judge's decision is thus stated : ' Where, as in this case, land has been let out for agricultural purposes generally, the erection of an indigo factory on a part of such land must render it unfit for the purpose of the tenancy, because, the purpose of the tenancy being the cultivation of crops, that is agricultural purposes, the portion of the land built upon will evidently be unfit for such purposes.' That proposition of law is laid down broadly, without reference to the circumstances of individual cases, without regard to the size of the holding or of the area withdrawn from actual cultivation, or to the effect of such withdrawal upon the fitness of the building, taken as a whole, for profitable cultivation.

8. The test laid down is 'What is the area withdrawn from actual cultivation' or 'the effect of withdrawal upon the fitness of the holding taken as a whole for profitable cultivation.' Therefore if the question to be considered is the area withdrawn with reference to the holding as a whole, it does not matter whether a holding comprises one parcel or two distinct parcels. The decision in Bholai v. Rajah of Bansi (1881) 4 All 174 seems to suggest that the question may depend on whether each separate plot or number of holding bears a distinct rent or it is a lump sum issuing from the entire holding. In that case the learned Judges declined to grant the relief of ejectment on the ground that a lump sum was assessed on the entire holding, no separate rate being recorded in respect of each field. It is not possible to understand the reasoning on which the distinction is based. Where parcels of land are held under a single engagement, the fact that details of the consolidated rent are given and noted against each parcel in the pattah would not make any difference because the entire rent is chargeable upon every piece of land comprised in a holding. But in this case' though the rent for each parcel is indicated, the road cess charged is one entire sum and not apportioned and road cess also is included in the rent within the meaning of the Act: vide Section 3, Clause (ii) (a); and the present case would not be covered even by the principle stated in Bholai v. Rajah of Bansi (1881) 4 All 174: vide Ramaswami Pillai v. Vellaya Pillai : (1892)2MLJ48 . I am therefore of opinion that so far as the relief of ejectment is concerned, the plaintiff's claim is unsustainable as Section 151 contemplates ejectment from an entire holding and not a part of the holding and a suit for ejectment must be in respect of the whole and not a part.

9. But the learned Judge is not right in dismissing- the plaintiff's suit altogether. His main relief as indicated in para. (a) of the plaint is for an injunction for removal of the building under Section 151(2) of the Act. As already pointed out it is competent to claim such a relief and in Rama Chetty v. Arunachalam 1916 39 Mad 673, a imilar relief was granted. No doubt, as pointed out in that decision, the right to sue for injunction is governed by the same conditions as are laid down in Clause 1, Section 151. Therefore before the relief for injunction can be granted the Court has to determine, has the holding taken as a whole been materially impaired in value for agricultural purposes or rendered substantially unfit for such purposes owing to the building having been erected on pymash Nos. 90 and 91 having regard to the circumstances of the case and having regard to the size of the holding taken as a whole and to the size of the area withdrawn from cultivation and to the effect of such withdrawal upon the fitness of the holding taken as a whole for profitable cultivation. Mr. Ramaswami Iyer contended that he is entitled to the relief of compensation in any event. But in this case the relief is entirely dependent on the relief of ejectment and the landlord must sue for that relief in addition to or in lieu of ejectment and he has not done either and he is therefore not entitled to that relief. In the result, I reverse the decree of the learned District Judge and remand the case for disposal on the merits in regard to the relief of injunction as prayed for in para. (a) of the plaint prayer in the light of the above observations. I make no order as to costs in this second appeal. Leave refused. The appellant will have a refund of the court-fee.


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