1. This is a second appeal from the judgment of the learned Subordinate Judge of Mayuram allowing A. S. No. 109 of 1975 and reversing the judgment and decree of the learned District Munsif of Sirkali in O. S. No. 741 of 1974.
2. The suit was instituted by the appellant against the respondent herein for eviction of the respondent from the buildingwhich the respondent had taken on lease on a monthly rent of Rs. 25. The respondent, as defendant, contended inter alia that he is entitled to the benefits of the Tamil Nadu Occupant Kudiyiruppu (Conferment of Ownership) Act, 1971 (Act 40 of 1971-to be hereafter referred to as the Act). He also contended that there was a fresh tenancy arrangement between him and the plaintiff on 6-8-1974 and that there was no valid notice to quit.
3. The learned District Munsif found that there was no such fresh tenancy arrangement between the plaintiff and defendant on 6-8-1974, as pleaded by the defendant and that the notice to quit is proper and valid. He further held that the defendant is not an agriculturist and that he is not entitled to the benefits of the Act. He, therefore, decreed the suit for recovery of possession of the suit property with a sum of Rs. 50 as damages for use and occupation. However, on appeal, the learned Subordinate Judge came to the conclusion that the defendant is entitled to the benefits of the Act and, therefore, set aside the judgment and decree of the trial Court and dismissed the suit.
4. The second appeal has been admitted on two substantial questions of law formulated as follows:-
1.Whether sub-section (2) of Sec. 3 of Act 40 of 1971 is a bar for the defendant to raise the contentions that he raised in the civil suit?
2. If the Civil Court is competent to go into the question whether the defendant is entitled to the benefits of Act 40 of 1971, then as per the provisions of the Act, whether the defendant is a person entitled to the benefits?
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-section (8) of Section 2 of the Act defined 'Kudiyiruppul' as
' 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 as may be necessary for the convenient enjoyment of such dwelling house or hut.'
6. By reason of this definition the lease or licence to enjoy 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-section (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 aseertain 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 licencee in respect of the site alone.
7. Section 3, sub-section (2) of the Act lays down that-
'(2) where, in the case of an occupant of kudiyiruppu referred to in sub-see. (1), the superstructure belongs to any person other than such occupant, such superstructure shall also, with effect from the date of the commencement of this Act, vest in such occupant absolutely free from all encumbrances.'
The question to be considered is whether sub-section (2) of Section 3 will avail the defendant in the instant case. Sub-section (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-section (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.
8. The defendant has not contended in his written statement that either he or any member of his family is cultivating an agricultural land by contribution of his own manual labour. He has merely contended that he is an agriculturist entitled to the benefits of the Act. Improving upon his case in the written statement, he has endeavoured to make out that one of his sons whose name he has not disclosed in the course of his oral evidence, has been attending to agricultural operations of his land. The best evidence to prove that his son has been contributing his own manual labour for the cultivation of an agricultural land would be the evidence of the son himself. If the son has been examined as a witness to swear that he has been contributing his own manual labour to cultivate an agricultural land, it would have been open to the plaintiff to cross-examine him and prove that he could not have carried on any such cultivation. In the absence of the evidence of the son of the defendant. The evidence of the defendant who has been examined himself as D.W.1 to swear that one of his sons is cultivating his land cannot be relied on. The version put forward by D.W.1. as noted already; is an improvement upon the averments in the written statement.
9. The defendant has not produced any extract from the Adangal register to prove that he has been cultivating any land, or his son by contributing his labour has been cultivating any land. No doubt, P.W. 1 has stated in the course of his cross-examination that the sons, of the defendant are attending to agricultural operations. According to D.W.1 himself, one of his two sons is still a student. The statement of P.W. 1 that the sons of the defendant are attending to agricultural operations is, therefore, a misstatement of the fact, He has not admitted that the other son is carrying on cultivation by the contribution of his own manual labour. Therefore the finding of the learned. Subordinate Judge that the defendant is an agriculturist within the meaning of the Act cannot be sustained.
10. Even assuming that the defendant is an agriculturist entitled to the benefits of the Act, he cannot claim the benefits of the, Act, because he has not applied to the Authorised Officer with in a period of two months from the date on which the dispute arose for the settlement of the dispute under section 4 as contemplated in Rule 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of ownership) Rules, 1972, framed in exercise of the powers conferred by Section 27 of the Act. If he had made such an application the plaintiff wou1d be entitled to the amount determined by the Authorised Officer as compensation payable to him. The defendant cannot, apply after the lapse of a period of two months from the date on which the dispute arose, unless the delay is condoned by the Authorised Officer. The defendant has not yet applied to the Authorised Officer for the settlement of the dispute under Section 4 of the Act. He cannot have the best of both the worlds viz, Claim the benefits of the Act and also refuse to pay the compensation by merely not applying under Rule 3, to the Authorised Officer for the sett1ement of the dispute under Section4. In view of the discussion above, I find that the defendant is not an agriculturist, that even if he is an agriculturist, he is not entitled to the benefits of the Act and that even if he is entitled to the benefits of the Act, he cannot claim the benefits now because he has not applied to the Authorised Officer within two months from the date on which the dispute arose, viz 22-7-1974, when a notice was issued by the plaintiff to him determining his tenancy and calling upon him to vacate.
11. In the result the second appeal is allowed the judgrment and decree of the learned Subordinate Judge in A. S. No. 109 of 1975 are set aside and the judgment and decree of the learned District Munsif Sirkali in O. S. No. 741 of 1974 are restored with costs throughout.
12. Appeal allowed.