S. Mohan, J.
1. The second appeal arises under the following circumstances:
The respondent/plaintiff laid a suit for recovery of possession in O.S. No. 249 of 1978 on the file of the District Munsif of Mayuram and also for recovery of arrears of rent and damages. The property that was demised was Door No. 22, Chithira Mela Veedhi, Kuttalam Town Panchayat. Admittedly, the suit building belongs to the respondent. The lease was on a monthly rental of Rs. 30/-. Originally the plaintiff filed R.C.O.P. No.l0 of 1974, against the first defendant for eviction of the first defendant on the ground of wilful default in payment of arrears of rent. That ended in an order of eviction on 25.2.1975. Aggrieved by that order of eviction, an appeal was preferred to the Sub Court, Mayuram (Appellate Authority). Pending appeal, G.O. Ms. No. 1998, Home, dated 12.8.1974 was passed, which ousted the jurisdiction of the Rent Controller with regard to the properties owned by the Hindu Religious and Charitable Trusts. Therefore, the plaintiff having no other course available, filed the above suit for recovery of possession and arrears of rent and damages, after terminating the tenancy by notice dated 2.8.1976, marked as Ex. A. 1. The first defendant died pending suit. Therefore, his legal representatives/defendants 2 to 5 were brought on record.
2. The defendants 2 to 5 who were brought on record, filed a written statement to the effect that inasmuch as G.O. Ms. No. 1998, Home, dated 12.8.74 is under challenge and the operation of the same has been stayed, no civil suit will lie. The defendants are agriculturists as defined under the Tamil Nadu Act 40 of 1971. Their main source of livelihood is the income derived from the agricultural operations. The suit property is Kudiyiruppu as defined under the Act. Therefore, a civil suit is not maintainable. It is incorrect to state that the defendants had fallen into arrears of rent. On the contrary, all the arrears of rent had been paid properly. Even otherwise, there is no valid notice to quit. Lastly it was urged that the suit was not maintainable in view of Tamil Nadu Act 17 of 1978.
3. The learned trial Munsif, came to the conclusion that the suit was not maintainable in view of Tamil Nadu Act 40 of 1971 and also Tamil Nadu Act 17 of 1981 Consequent to this finding, the suit was dismissed.
4. Aggrieved by the dismissal of the suit, the plaintiff took up the matter in appeal in A.S. No. 105 of 1979 to the learned Subordinate Judge of Mayuram. The appellate Court held that the defendants were not entitled to the benefits of Tamil Nadu Act 40 of 1971. In any event, in so far as the defendants did not raise the plea of benefit under the Kudiyiruppu Act before the Rent Controller, they would be estopped from raising the plea before the appellate Court. The further finding was that the Tamil Nadu Act 17 of 1978 would not apply to a case of payment of rent for building and therefore the contrary finding rendered by the learned trial Munsif was held to be incorrect. It was found that the plaintiff was entitled to recover the arrears of rent and possession of the property. Accordingly, the suit was decreed. Aggrieved by the same, the present second appeal has been preferred by defendants 2 to 5.
5. At the outset it requires on my part to state though arguments were raised with regard to the plea of estoppel, I called upon both the learned Counsel to address arguments on the benefits of Tamil Nadu Act 40 of 1971, briefly called Kudiyiruppu Act and therefore the arguments were addressed on merits.
6. It is the contention of Mr. V. Sridevan, learned Counsel for the appellants, that this is undoubtedly a Kudiyiruppu, having regard to the definition under Section 2(8) of Tamil Nadu Act 40 of 1971. It is not the case of the other side that the building alone without the site was demised. If that be so, having regard to the definition of Section 2(8) as well as 2(11) of Act 40 of 1971, it should clearly follow under Section 4 of that Act in so far as it vests the jurisdiction on the Authorised Officer, the civil court will have no jurisdiction whatsoever.
7. The definition of 'rent' in Tamil Nadu Act 17 of 1978, which came into force on 18th March, 1978 is wide enough to include arrears of rent for the building as well. Under those circumstances to hold that it will apply only to the arrears of rent from the land is incorrect. The moment the appellants had raised the plea that it is the Kudiyiruppu Act that would apply, the suit is liable to be dismissed in view of the ruling of a Division Bench of this Court reported in K.L. Kuttayan Chettiar v. K.V.R. Surendranathachary, 95 L.W. 492.
8. The Civil Court has no jurisdiction even to pass a decree for possession subject to the benefits of the appellants being decided under Tamil Nadu Act 40 of 1971. That is the purport of the ruling reported in Kalayanasundaram Udayar v. Razhaniayya Udayar : AIR1983Mad86 , and R. Veerappan v. Shanmughavelu : AIR1982Mad445 . For all these reasons, it is prayed that the judgment and decree of the lower appellate Court be set aside and the suit be dismissed.
9. Mr. S. Gopalan, learned Counsel for the respondent, urges the fundamental mistake made by the appellants is in overlooking the important fact that what was demised in favour of the appellants' predecessor-in-title, viz., first defendant was only a building. Once that is not denied, and as a matter of fact it is categorically admitted, the question of applying the Tamil Nadu Act 40 of 1971 does not arise at all. Therefore, under Section 4 of the said Act, the Authorised Officer would have no jurisdiction whatever to decide this question.Originally Tamil Nadu Act 38 of 1961 was passed conferring protections from eviction of the holders of Kudiyiruppu. That Act did not deal with the superstructure. It is only by reason of Tamil Nadu Act 40 of 1971, the superstructure also came to be included. But even here, in order to qualify for the same he must be a tenant of the land as stated under Section 2(11). Here it is not so, because what was demised in favour of the first defendant was only a building. To such a case, the ratio of the ruling reported in T.K. Narayana Pillai v. Naganatha Iyer : (1981)1MLJ506 , squarely applies and the facts are identical.
10. As regards the benefits of Tamil Nadu Act 17 of 1978 it is submitted that he was not a cultivating tenant with reference to the demised land. Therefore, it is urged that there is no warrant for interference at all.
11. One thing that is beyond dispute in this case is the property that was demised in favour of the first defendant, viz., the predecessor-in-title of the appellants herein, is house No. 22, Chithira Mela Veedhi, Kuttalam Town Panchayat. Under those circumstances, it is impossible to hold that the appellants could have the benefits of Tamil Nadu Act 40 of 1971 at all. The very definition under section: 2(8) of Act 40 of 1971 is as follows:
'Kudiyiruppu' means the site of any dwelling house or hut occupied, either as tenant or as licensee, by any agriculturist or agricultural labourer and includes such other area adjacent to the dwelling house or hut.
A reading of it makes it clear that what is contemplated by the Kudiyiruppu is the site of any dwelling house. The emphasis therefore, on the 'site' will not take within it a building. Originally Tamil Nadu Act 38 of 1961 was passed and that Act, as the preamble itself would show, was to confer protection upon persons who were in occupation of Kudiyiruppu. That Act did not deal with the superstructure at all. The superstructure came to be included only under Act 40 of 1971, because Section 3(2) reads as follows:
Where, in the case of an occupant of Kudiyiruppu referred to in sub-s.(l) the superstructure belongs to any person other than such occupant, such superstructure shall also, with effect from the date of commencement of this Act, vest in such occupant absolutely free from all encumbrances.
The object of conferring such protection with regard to Kudiyiruppu is clear from the following statement of objects and reasons:
As a further measure of agrarian reform, the Government have decided that agriculturists and agricultural labourers occupying any kudiyiruppu, that is to say, the site of any dwelling house or hut, should be conferred ownership rights in respect of such kudiyiruppu. If the superstructure in respect of such kudiyiruppu belongs to any person other than the agriculturist or agricultural labourer, such superstructure also will vest in the agriculturist or agricultural labourer. Compensation is proposed to be given for the property vesting in the agriculturists or agricultural labourers. As it may not be possible for the agriculturists or the agricultural labourers who are very poor to pay in a lump sum the compensation to the landowners or other persons interested the Government have taken over the liability to pay the compensation to the landowners or other persons interested. The compensation will be payable either in cash or in bond. But the agriculturists, or agricultural labourers should reimburse the Government the amount paid by the Government as compensation. Such reimbursement may be made in such installments as may be prescribed under the rules.
2. The Government have taken power to acquire lands used for common purposes by the occupants of Kudiyiruppu and make them available to the occupants of Kudiyiruppu to be used for the same common purposes for which they were used. The lands so be acquired will vest with the Government and the compensation for such lands will be paid to the Government.
3. The object of the legislation is to give the large number of agriculturists and agricultural labourers in the State economic security, thus creating conditions that will favour the orderly growth of the agricultural economy and also increased agricultural production.
Therefore, it is only on such of those agriculturists who were in enjoyment of Kudiyiruppu, this Act conferred benefit. Where the building alone was demised, there is absolutely no scope for applying this Act. That is evident from T.K. Narayana Pillai v. Naganatha Iyer : (1981)1MLJ506 . My learned brother, Suryamurthy, J., who decided the matter, has held in paragraphs 5 and 6 as follows:
5. I am of the opinion that the defendant is not entitled to the benefits of the Act, because what was leased to him was not a site, but a pucca building, viz., Door No. 90, in Ward No. 3 of Achalapuram Village, Sirkali Taluk. Sub-s.(8) of Section 2 of the Act defines 'Kudiyiruppu' as
'the site of any dwelling house or hut occupied either as tenant or licensee by any agriculturist or agricultural labourer and includes such other area adjacent to the dwelling house or hut as may be necessary for the convenient enjoyment of such dwelling house or hut.'
By reason of this definition the lease or licence to occupy should have been only in respect of a site. The definition does not apply to a pucca building which an agriculturist may take on lease. Incidentally, I may mention that by Explanation I to sub-s.(8) of Section 2 of the Act, a presumption is raised viz., any person occupying the Kudiyiruppu is an agricultural labourer or an agriculturist, 'until the contrary is proved'. To hold that the site of any dwelling house or hut is a kudiyiruppu one has to ascertain whether the occupant either as a tenant or a licensee is an agriculturist or agricultural labourer. No presumption that any person is an agriculturist or an agricultural labourer can be made till the site of the dwelling house or hut in his occupation is found to be a kudiyiruppu. Therefore, the presumption raised by the Explanation is of no avail to any party who claims to be an agriculturist merely on the basis of a contention that the site in his occupation is a kudiyiruppu. An agriculturist can claim that the site of the dwelling house or hut in his occupation is a kudiyiruppu only if he is a tenant or a licensee in respect of the site alone.
6. Section 3, sub-s.(2) of the Act lays down that:
'(2) Where, in the case of an occupant of Kudiyiruppu referred in sub-s.(l), the superstructure belongs to any person other than such occupant, such superstructure shall also with effect from the date of commencement of this Act, vest in such occupant absolutely free from all encumbrances.'
The question to be considered is whether Sub-s.(2) of Section 3 will be availed the defendant in the instant case.
Sub-s.(2) of Section 3 will be applicable only if the defendant proves that he is an occupant of, a kudiyiruppu and as 'kudiyiruppu' means the site of any dwelling house or hut occupied by him, either as tenant or licensee, he should have taken the site alone on lease, if he is to claim the benefits of the Act. Any other interpretation of the definition of Kudiyiruppu in Sub-s.(8) of Section 2 of the Act will have far-reaching and calamitous consequences, because every agriculturist who is in occupation of a house as a tenant within the area to which the Act applies can then claim the benefits of the Act, not only in respect of the site but also of the house.
The facts are identical.
12. There is no scope for applying the Tamil Nadu Act 17 of 1978. The definition of 'rent' therein is as follows:
'Rent' means rent accrued due in respect of any agricultural land for the fasli year ending with the 30th day of June, 1978 and for any previous fasli year and includes any amount or compensation accrued due for the said period, for the use and occupation of house property or any other immovable property.
But, it should be noted that in order to invoke the benefit of the Act, he must be a cultivating tenant with reference to the demise. He cannot to a cultivating tenant with reference to a building. 1 am fortified in this conclusion because before the Rent Controller the matter was agitated and it also ended in an order of eviction. However, only because of G.O. Ms. No. 1998, Home, dated 12.8.1974 the jurisdiction of the Rent Controller was ousted, the eviction order was set aside by the Appellate Authority in appeal. Once, therefore, it is held which is beyond dispute, that what was demised was only a building, there being no scope for applying the Tamil Nadu Act 40 of 1971, 1 do not think that either Kalayanasundaram Udayar v. Pazhaniayya Udayar : AIR1983Mad86 , or R. Veerappan v. Shanmughavelu : AIR1982Mad445 , would advance the case of the appellants.
13. In the result, the second appeal is dismissed. However, there will be no order as to costs.