1. The question that comes up for consideration in this second appeal is as to whether the plaintiff in O.S. No. 548 of 1966 on the file of the District Munsif, Tiruchirapalli, is a cultivating tenant entitled to the benefit of the Madras Cultivating Tenants Protection Act.
2. The respondent herein took on lease from the Srirangam Municipality, the appellant herein, 7 acres of sewage farm in Coleroon road, Vellithirumutham village in 1960 for a period of 3 years in a public auction held for the purpose. The lease was also renewed for a further period of 3 years from 1-4-1963. As the lease in favour of the respondent expired on 31-3-1966, there was a fresh auction for the lease of the sewage farm on 19-3-1966 and one Rahmatullah was the highest bidder for Rs. 26001, and the respondent was the next highest bidder for Rs. 25716. The municipality passed a resolution on 22-3-1966 accepting the second highest bid of the respondent for Rs. 25716 without assigning any reason for rejecting the highest bid of Rupees 26001.
The Collector of Tiruchirapalli acting under Section 34(2) of the Madras District Municipalities Act directed the Commissioner by his Memo dated 22-8-1966 not to give effect to the resolution of the municipality dated 22-3-1966. Thereafter the Municipality held a special meeting on 7-5-1966 and resolved to cancel the resolution dated 22-3-1966 and to conduct a re-auction of the lease of the sewage farm. At that stage the respondent filed W.P. 1277 and 11278 of 1966 to quash the resolutions passed by the Municipality cancelling its earlier resolution and proposing the re-auction. In those writ petitions he sought an interim order directing the Municipality not to re-auction and not to dispossess the respondent from the sewage farm. This court, though at the first instance granted an ex parte order of stay on 12-5-1966. vacated the same after contest on 31-5-1966. Thereafter the respondent filed the suit for an injunction restraining the Municipality from interfering with his possession on the ground that he is a cultivating tenant entitled to the benefits of Madras Act 25 of 1955 in respect of the sewage farm.
The defendant Municipality resisted the suit contending that the respondent has been given only a licence to cut and remove the guinea grass grown in the sewage farm, that he cannot claim to be a lessee of the sewage farm as he had no exclusive possession, that raising of guinea grass cannot be said to be agriculture, and that, in any event, he cannot claim to be a cultivating tenant as defined in Madras Act 25 of 1955. It also contended that the respondent had not been in possession of the sewage farm, on the date of the suit and that, therefore, he is not entitled to the injunction prayed for by him. It was further contended that the respondent having bid at the auction held on 19-3-1966 subject to the terms and conditions of the auction notification and having asserted his rights as a bidder at that auction, in the writ proceedings is estopped from contending that he is entitled to be in possession of the property as a cultivating tenant.
3. The trial Court held that the plaintiff is a cultivating tenant of the sewage farm and that as such he is entitled to the benefits of Madras Act 25 of 1955. The trial Court also found the plaintiffs to be in possession of the property on the date of the suit. The lower appellate Court also agreed with the view taken by the trial Court. It is for consideration whether the concurrent view taken by the courts below is correct.
4. The lease deed that has been executed by the respondent in favour of the municipality for the three year period from 1-4-1963 to 31-3-1966 has been marked as Ex. B-14 in the case. The question whether the respondent is a tenant or not has to mainly depend upon the terms of this document, as his possession of the suit sewage farm is based thereon. Ex. B-14 states that the lease is subject to the terms and conditions contained in the notification dated 12-2-1963. It also recites that the public auction was only in respect of five acres and two cents, that the respondent's bid for an annual rental of Rs. 8237 had been accepted, and that a further extent of 1 acre and 41 cents had been granted to him for a period of 3 years by virtue of a resolution passed by the Municipality on 30-10-1963 for an annual rent of Rs. 400. The relevant terms and conditions set out therein are as follows:
5. The lessee should maintain properly the fences, ridges, trees, free from encroachment from others. The lessee has no right to sublet or assign the rights acquired by him under the agreement without the written permission from the Municipality. The Municipality and its officers are entitled to enter and inspect the property and call upon the lessee to do such maintenance works as are necessary. The lessee is not entitled to any remission on any ground whatever. The Municipality or the District Collector can terminate the lease at any time by serving a notice on the lessee. Except watering the grass, other operations including watch and ward have to be the responsibility of the lessee. The lessee has to cut the guinea grass only above 9 inches from the ground. Apart from the 4.65 acres wherein guinea grass had already been raised by the Municipality the lessee had to raise guinea grass at his own cost in the rest of the extent after getting the permission from the Commissioner. If default is committed in carrying out the obligations imposed on the lessee, the lessee is liable to pay a fine not exceeding Rs. 100 for each default, and if the fine is not paid the Commissioner of the Municipality has been empowered to bring the properties for re-auction and in such an event the lessee has to surrender the sewage farm with all the fruit bearing trees as also the guinea grass raised therein.
In the light of the above terms and conditions of this lease, it has to be found out as to whether the respondent is a licensee or a lessee. The respondent, of course, has adduced evidence to show that he has cultivated plantains, vegetables etc. on portions of the land contrary to the terms set out in Ex. B-14 set out above, which directs the lessee to cultivate guinea grass in the vacant portions after getting the permission of the Commissioner of the Municipality. The lease deed nowhere permits the lessee to raise plaintains, vegetables etc. Therefore the facts that the lessee has cultivated a portion of the lands with vegetable and plaintains have to be ignored for finding out the nature of the interest which the respondent got under the lease deed Ex. B-14.
6. The learned counsel for the appellant submits a three-fold contention to meet the claim put forward by the respondent that he is a cultivating tenant in respect of the sewage farm. (1) The respondent is only a licensee and not a lessee. (2) No agricultural operation is involved in raising guinea grass and cutting or removing the same and (3) the respondent is not a cultivating tenant as defined in the Act as there was no personal cultivation by him on the suit lands.
7. The learned counsel contends that the respondent has not been given exclusive possession of the lands and that the lease deed Ex. B-14 has authorised the municipal officers to enter and inspect the property and also to water the guinea grass already existing in the lands and to supply water to the other areas to be cultivated by the lessee with guinea grass. The other terms in Ex. B-14 such as the right to terminate the lease either by the municipality or by the Collector after due notice were also relied on to show that the interest which the respondent got under the lease could only be that of a licencee. The learned counsel also states that even if the respondent is held to be in exclusive possession of the lands in question that cannot be conclusive. The clause in Ex. B-14 which directs the respondent to cut guinea grass only from a height of 9 inches from the ground is also relied on to show that the right of the respondent is to cut and remove the guinea grass and that he has no interest in the land as such.
8. In Natesa Gramani v. Thangavelu Gramani, ILR 38 Mad 883 : AIR 1914 Mad 362 a document stated that the lessee had 'taken for lease for two years palmyra trees in a certain garden.......... that he would not cut the leaves of any of the trees except those whose leaves had to be cut out'. It was held that it was not a lease of immovable property and that therefore the document did not require registration. In Venugopala Pillai v. Thirunavakkarasu : (1948)2MLJ155 there was a lease of coconut trees for the purpose of drawing toddy and the document which was executed between the parties showed that the lessee obtained the rights to enjoy the toddy yield from the trees and a right to enter upon the land for the said purpose. It was held that the lessee had merely a licence to enjoy the toddy yield from the trees and that the right to enter the land was restricted only for the said purpose. Govindasami v. Mahalakshmiammal 1963 2 MLJ 137 dealt with a case of an yearly lease of a coconut tope where the lease deed made it clear that the right created thereunder was only in respect of the trees, that the lessee was only entitled to collect the produce from the trees and that the lessee would be entitled to repair the land so as to render it useful for obtaining the produce.
It was held therein that the interest conveyed under the document was only a right to collect the usufructs of the coconut trees coupled with a licence to use the land for obtaining the produce. The lessee in that case was held not to be a cultivating tenant under the Act. One of the circumstances which was relied on by the learned Judges in that case was the undertaking given by the lessee not to cultivate any other crop on the land. In Arumugha Vettian v. Angamuthu Nattar, 1965 1 MLJ 170, Srinivasan, J. had expressed the view that when a person has been given a right to cut and remove coconuts from a grove, his right to enter upon the land would be in the nature of a licence if it is a case where he is to remove the goods immediately upon the grant of the right. But where he is entitled to the usufruct from the trees spread over a period of time during which period the usufruct grew out of the soil, then the right to collect the usufruct is in the nature of immoveable property and would accordingly amount to a lease.
In Associated Hotels of India v. R. N. Kapoor : 1SCR368 , the Supreme Court has stated that the following propositions should be taken to be well-established. (1) To ascertain whether a document creates licence or lease, the substance of the document must be preferred to the form (2) The real test is the intention of the parties whether they intended to create a lease or a licence; (3) If the document creates an interest in the property, it is a lease; but if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence, and (4) If under the document a party gets exclusive possession of the property, prima facie, he is entitled to be considered to be a tenant; but circumstances may be established which negative the intention to create a lease.
In M. N. Clubwala v. Fida Hussain Saheb : 6SCR642 , the distinction between a licence and a lease has been pointed out. In that case, the question arose whether a stall-holder in a market was a lessee or a licencee. It was found that the stall-holder was entitled to exclusive use of his stall from day to day but he had no right to use it during the nights after the closure of the market at 11 p.m. at his pleasure, that even his use during the day time is subject to several conditions that the landlords were under a duty to clean as well as disinfect the stalls and to close the market at a particular time. On these facts the Supreme Court held that the legal possession of the stalls should be held to be with the landlords and not with the stall-holders, and that the stall-holder is only a licencee and not a lessee.
In a later decision in B. M. Lall v. Dunlop Rubber Co. : 1SCR23 , the Supreme Court expressed the view that the test of exclusive possession is not conclusive, though it is a very important indication in favour of tenancy. In Lakshmiammal v. Sivakamu, (1969) 82 MLW 589, Natesan, J. has pointed out that that difference between a lease and licence is quite often subtle and that the precise character of the relationship between the owner and occupier has to be determined having a conspectus of the entire case and circumstances obtaining at the time of the entry and the conduct of the parties.
9. If we analyse the terms contained in Ex. B-14, in the light of the principles enunciated in the above decisions, it is seen that the respondent has been given exclusive possession subject to the right of the municipal authorities to inspect and its employees to attend to the watering and that the right of the respondent to cut the grass is spread over for a period of 3 years. That means, the parties intended that the respondent should have the benefit of not only the grass that had grown at the time of the auction sale but also the further growth of the grass for a period of 3 years. It cannot, therefore, be said that the lessee has no interest in the land. As a matter of fact the evidence in this case which has been accepted by both the courts below is that the respondent has been replanting the guinea grass every 9 months even in the area where the guinea grass existed at the time of auction. The fact that the Municipality had a right to terminate the arrangement by issuing a notice or on the default committed by the respondent in payment of the fine that might be levied for contravention of the terms of the agreement will not make the transaction a licence. I am, therefore, of the view that the respondent has acquired a right in the land by virtue of the above lease and it is not merely a licence as urged by the learned counsel for the appellant.
10. The next question is whether the raising of guinea grass on the suit lands is an agricultural operation. The learned counsel for the appellant contends that it cannot be an agricultural operation. The evidence of P.Ws. 1 to 4 which has been accepted by both the courts below and which stands uncontradicted is to the effect that once in nine months the stumps have to be removed and new stumps replanted for raising guinea grass, after the lands are ploughed and manured and that the grass is to be cut periodically depending upon its growth. Though the lease deed provided that guinea grass had been raised by the Municipality in 4 acres and 63 cents and the plaintiff is to raise guinea grass only in respect of the remaining extent leased out to him, the plaintiff has been carrying on operations such as replanting in the entire extent and though an attempt was made by the Municipality to show that the guinea grass which stood on 4 acres and 63 cents at the time of the lease was a perennial crop requiring no further agricultural basic operation, no evidence has been adduced on behalf of the Municipality to sustain that case.
It is not the case of the municipality that the replantation of the grass was done by it. The evidence on the side of the respondent which goes unrebutted shows that the respondent is carrying on basic and subsequent operations in cultivation of the guinea grass in the lands in question. That evidence also is to the effect that the basic and subsequent operations in the cultivation of guinea grass are practically the same as for raising any other crop. In his book 'Common cultivated crops of South India' V. T. Subbiah Mudaliar at page 536 sets out the process of cultivation of guinea grass of follows:
'The land is prepared by ploughing 3 to 4 times, manured with cattle manure at 10 to 20 cart loads to an acre and laid into ridges and furrows, 3 ft. apart. The individual branches, which spring up from the bas of the guinea grass stumps, are separated and used as planting material. They are planted 2 of 3 feet apart on one side of the ridges and 5000 to 7000 slips are planted in an acre. The crop is irrigated once a week for about 2 months and once a fortnight later. It makes vigorous growth and the first cutting can be taken in about 75 days and the subsequent ones at intervals of 1 to 11/2 months, depending upon the rate of growth. The crop is intercultivated 4 to 6 times a year and manured with cattle manure annually at 10 cart loads to an acre. The individual plants spread out and form big stools in about two years and they are then split into four quarters and 3 of them are dug and removed. The quartering of the stools may have to be done once a year subsequently.'
From the process of cultivation of guinea grass set out above it is seen that guinea grass is cultivated just like any other crop and it involves all the basic and subsequent operations normally done in raising other crops. Therefore, it has to be taken that the operations carried on by the respondent in the suit land are agricultural operations.
11. In Chako in re (1954) 2 MLJ 737, Ramaswami, J. expressed the view that the word 'agriculture' denotes the raising of valuable or useful products deriving nutriment or substance from the soil with the aid of human skill and labour, that irrespective of the nature of the produce or product, whether is grown on land aided by human labour and effort, whatever does not grow wild or spontaneously on the soil without human labour or effort would be an agricultural product in the context of the Madras Debt Conciliation Act, 1936. In a recent decision of this court in C.R.P. No. 1471 of 1969 (Mad), it has been held that the word 'agriculture' is generally understood as comprehending the raising of vegetables, fruits and other garden products such as food for man and beast and that it cannot be restricted only to the raising of annual or periodical grain crops. Hence the raising of fodder such as guinea grass in this case has to be taken as an agricultural operation.
12. The further contention of the appellant is that raising of guinea grass in the suit lands by the respondent was only by engaging labour and, that therefore, the respondent cannot come within the definition of a 'cultivating tenant'. A 'cultivating tenant' has been defined in Madras Act 25 of 1955 in relation to any land as a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied. The earlier view taken in Kunjithapatham Pillai v. Ranganatham Pillai : (1958)1MLJ272 was that a cultivating tenant need not do physical labour in respect of the cultivation work and that even a person who assumes the risk of cultivation and is not the paid agent of another person and who directly supervises the work of cultivation would be a cultivating tenant. However Section 2(ee) has made in position clear and it says that a person can be said to carry on personal cultivation on the land when he contributes his own physical labour or that of the members of his family in cultivating the land.
As to the requirements necessary to prove that a particular person is a cultivating tenant have been set out in the decisions of the Supreme Court in Sudalaimuthu v. Palaniyandavan : 1SCR450 and Ganapati Thevas v. S. N. Devastanam : 1SCR508 . If the tenant, he must establish that he contributes his own physical labour or that of the members of his family in the cultivation of the guinea grass................................
(His Lordship discussed the evidence and proceeded)
The farm is situate in Srirangam. In my view, the evidence adduced by the plaintiff to show that he contributed his own physical labour in raising the cultivation of guinea grass is meagre and practically next to nothing. I am not, therefore, inclined to agree with the respondent's contention that he will come under the definition of a 'cultivating tenant'. In view of my finding that the respondent has not shown to have contributed his physical labour or that of the members of his family in raising guinea grass, it has to be held that he is not a cultivating tenant as defined in the Act so as to entitle him to the benefits under the Act.
13. The second appeal is, therefore, allowed and the judgment and decree of the courts below are set aside. But, in the circumstances, there will be no order as to costs. No leave.
14. Appeal allowed.