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S. Balasubramaniam Vs. Shamsu Thalreez and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1985)2MLJ168
AppellantS. Balasubramaniam
RespondentShamsu Thalreez and ors.
Cases ReferredPeriathambi Goundan v. The District Revenue Officer
Excerpt:
- - the suit was filed for a declaration that the lease claimed by the first defendant is null and void and the first defendant has no right to enjoy and consequently, the relief of possession was also asked for with damages, past and future. we are not very much concerned with the written statement of defendants 2 and 3, who sailed with the first defendant, because we find that they have not prosecuted their defence effectively before the court below. this factum has been clearly referred to in paragraph 7 of the written statement of the first defendant, which runs as follows: as we stated above, we are not called upon to test a plea properly put forth in the lis that the order passed by the authority stands vitiated on any ground like fraud, collusion, etc......the preparation of a record under the act is that the land must have been let for cultivation by a tenant. a controversy may arise whether the land has been let for cultivation by a tenant at all. the question to be considered is, whether the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the act so as to bar the jurisdiction of the civil court under section 16-a. from the language of section 3(2) it cannot be stated that the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the act, though the determination of that controversy is basic and fundamental to the exercise of the jurisdiction by the record officer and the other authorities under the act.' the very object of.....
Judgment:

Nainar Sundaram, J.

1. The first defendant in O.S.No. 66 of 1974 on the file of the Subordinate Judge, Tirunelveli, is the appellant in this appeal. The first respondent is the second plaintiff and respondents 2 to 5 are defendants 2 to 4 and 6 in the suit. It must be noted that the original plaintiff died and the second plaintiff got added as his legal representative in the suit itself. The suit was filed for a declaration that the lease claimed by the first defendant is null and void and the first defendant has no right to enjoy and consequently, the relief of possession was also asked for with damages, past and future. The suit was filed on the following allegations: Under the wakfnam a dated 20.12.1931, the suit properties were the subject-matter of endowment to Hameem Palli Madarsa Wakf absolutely and the first plaintiff and defendants 2 and 3 are the turn huqdars. The second defendant, without any authority, leased the scheduled properties to the first defendant. The alleged lease in favour of the first defendant is not valid since all the huqdars had not consented for the same and the second defendant alone could not permit the first defendant to enter into and cultivate the suit properties. The sanction of the Wakf Board is lacking. The first defendant is only a trespasser. In O.S.No. 15 of 1969 on the file of the Court, below, an order of injunction was obtained against defendants 2 to 4 not to effect any transfer of the suit properties in any manner and subsequently, the suit was decreed, declaring that defendants 2 and 3 are unfit to be the muthavallis. The plaintiffs claimed that on this ground also, the alleged lease is null and void. The first defendant contested the suit stating that the lease in his favour is valid and is for the benefit of the wakf; the second defendant was the trustee of the scheduled properties on the relevant date and he had authority to lease; the litigation in O.S.No. 15 of 1969 is irrelevant and could not affect the contractual obligations; the first defendant has been recorded, as the cultivating tenant of the scheduled properties by the Record Officer, Tirunelveli and it could not be questioned and assailed by the plaintiff; and further, the claim for damages is not sustainable. We are not very much concerned with the written statement of defendants 2 and 3, who sailed with the first defendant, because we find that they have not prosecuted their defence effectively before the Court below. Defendants 4 and 5 remained ex parte. The sixth defendant supported the case of the plaintiff. Reflecting the controversy that arose on the pleadings of the parties, the Court below formulated and set forth the following issues for its decision:

1. Whether the lease in favour of the first defendant executed by the second defendant is not valid?

2. Whether the plaintiffs are entitled to any amount by way of damages?

3. Whether the first defendant is cultivating tenant as claimed by him?

4. Whether the plaintiffs are entitled to recover possession as prayed for?

5. To what relief are the plaintiffs entitled?

On issue Nos. 1 to 3, the Court below came to the conclusion that the lease in favour of the first defendant, executed by the second defendant, is not valid; the first defendant is not a cultivating tenant, as claimed by him; and the plaintiff is entitled to damages claimed in the suit. As a result, on issue No. 4, the Court below held that the plaintiff is entitled to recovery of possession during his term as turn huqdar and granted the plaintiff the decree as prayed for with costs. This appeal is directed against the judgment and decree of the Court below.

2. Mr. G. Subramanian, learned Counsel appearing for the first - defendant - the appellant herein, amongst other contentions, would primarily submit that the first defendant, even as early as 15.1.1978, as per Exhibit B-1 got himself registered as a cultivating tenant under the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act 10 of 1969, hereinafter referred to as the Act, and that order has become conclusive and final for want of further agitation over it under the Act; and even otherwise, the validity of that order has not been challenged specifically by the plaintiff by taking any appropriate pleading setting forth tenable grounds therefor even though this contention has been put forth by the first defendant in paragraph 7 of his written statement, which we shall presently advert to, and the authority constituted under the Act having passed that order, the Civil Court cannot sit in judgment over that order and adjudicate the propriety or otherwise of such an order, as if, it is an appellate forum. We find that this submission of the learned Counsel deserves acceptance. Irrespective of the other contentions raised by the parties in the suit, the fact remains that as per' Exhibit B-1, the first' defendant got himself registered as a cultivating tenant under the Act. This factum has been clearly referred to in paragraph 7 of the written statement of the first defendant, which runs as follows:

This defendant has been accepted as the cultivating tenant of the suit property by the Record Officer (Tahsildar) Tirunelveli. Under the provisions of the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act, 1969 this defendant's name has been entered in the register, maintained for that purpose. The entry in the register of tenancy rights cannot be questioned or assailed in a Court of law. Under Section 15 of the said Act, the entry should be presumed to be true and correct until the finding is altered or set aside by the forums specified therein.

Significantly, neither the plaintiff nor the second plaintiff chose to put forth any further pleading, such as a reply statement, attacking the order on any tenable ground to be countenanced by civil courts, such as fraud, collusion, etc. and seeking to set aside the said order on any such basis. Hence, we have to proceed on the basis that the plaintiff has not put forth any plea attacking this order, as standing vitiated on any tenable ground, such as fraud, collusion etc., so as to come within the purview of the civil court's jurisdiction.

3. Where an authority is constituted under an Act of legislature, conferring on him jurisdiction, for the purpose of determining questions arising under it; and if that authority has exercised the jurisdiction vested in him and has rendered his determination and furthermore as against the said determination, the machinery for further agitation has also been delineated in the Act itself, then the general remedy of suit before a civil Court will be barred. This is more so when the provisions of the Act say that the determination of the ultimate authority under it is final. There are exceptions to the above rule, such as where orders have been obtained by fraud, collusion, etc., As stated above, we are not facing any such plea put forth by the plaintiffs.

4. We must countenance that on the question of a person getting registered as a cultivating tenant, the jurisdiction of the authority under the Act is ample enough to determine the controversy relating to the factum of demise, the subject-matter of demise, the existence of relationship of landlord and tenant and the propriety, factual and legal, of the demise and such other jurisdictional issues. While considering the question of exclusion of jurisdiction of the civil Court by virtue of Section 16-A of the Act, a Full Bench of this Court, in Periathambi Goundan v. The District Revenue Officer, Coimbatore : AIR1980Mad180 set out the ratio in the following terms:.For instnace, the statutory requirement for the preparation of a record under the Act is that the land must have been let for cultivation by a tenant. A controversy may arise whether the land has been let for cultivation by a tenant at all. The question to be considered is, whether the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the Act so as to bar the jurisdiction of the Civil Court under Section 16-A. From the language of Section 3(2) it cannot be stated that the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the Act, though the determination of that controversy is basic and fundamental to the exercise of the jurisdiction by the Record Officer and the other authorities under the Act.' The very object of the Act is to. provide for the preparation and maintenance of record of tenancy rights (sic) respect of agricultural lands and therefore if there is no tenancy in respect of a land, there is no question of any further particulars being determined. This aspect is made clear even from the definition of the expression 'landowner' occurring in Section 2(5) of the Act, because according to the said definition, 'land - owner' means the owner of the land let for cultivation by a tenant and includes the heirs, assignee or legal representatives of such owner or persons deriving rights through him. Consequently, the controversy as to whether a particular' piece of land has been let for cultivation by a tenant or not is one constituting the jurisdicitional issue which a Record Officer has to decide before he can determine any other matter under the Act. But that controversy cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act, because to hold so will enable the statutory authorities to assume jurisdiction by erroneously deciding the jurisdictional issue. If the controversy arises, the authorities functioning under the Act have necessarily to decide the same, because a decision on that controversy alone will determine the jurisdiction of the authorities functioning under the Act. If the decision is that the land has been let for cultivation by a tenant, then the Record Officer will have jurisdiction to determine the further particulars provided for in Section 3(2) of the Act. If, on the other hand, the decision of the controversy is that the land has not been let for cultivation by a tenant, there is no question of there being any tenancy rights in respect of the said land and consequently, there is no question of the Record Officer ascertaining or determining any furtner particulars in this behalf. Therefore, if such controversy arisen, that controversy cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act, and any determination ,of that controversy by the authorities 'can be said to be only incidental to the assumption of jurisdiction by the authorities under the Act. Subject to this qualification, it can be held that once the Record Officer or any other authority functioning under the Act has came to the conclusion that the land has been let for cultivation by a tenant, the matters provided for in Section 3(2) have to be determined by the Record Officer, or other authority functioning under the Act, and to that extent the jurisdiction of the civil Court is barred under Section 16-A of the Act.

If a controversy arises on any of the aspects, referred to by me above, the authority functioning under the Act has also jurisdiction to decide the same, because a decision over that controversy alone will determine the jurisdiction of the authority functioning under the Act to proceed further to determine any other matter under the Act. The fact that the controversy over the above aspects was not raised, put in issue and decided by the authority under the Act is of no legal consequence to whittle down the binding nature of the ultimate order. In such a case also the ultimate decision with regard to cognizance of tenancy rights by the authority under the Act will govern. Hence, we cannot subscribe our support to the view now advanced by Mr. T. Vadivelu, learned Counsel appearing for the second plaintiff, that the Civil Court, inspite of the decision rendered by the authority under the Act, could reopen the matter and give a different decision on this question. It would be a different matter if the matter had gone to the civil Court and a decision had been rendered by the Civil Court on these questions anterior to the decision of the authority under the Act and the Civil Court thereby holding that the lease in favour of the first defendant by the second defendant could not be legally sustained and has got to be ignored in the eye of law. The Civil Court can certainly go into these jurisdictional issues, which are not within the exclusive jurisdiction of the authority under the Act. But, such is not the case here. When the authority constituted under the Act has decided the ultimate question under the Act within his jurisdiction and competency and which he is enjoined to decide in the proceedings under the Act, it is not open to the Civil Court in a subsequent suit to sit in judgment over the same, as if it is an appellate authority and render a different decision. As we stated above, we are not called upon to test a plea properly put forth in the lis that the order passed by the authority stands vitiated on any ground like fraud, collusion, etc. We do not find any plea and further more, there is no proof. In the said circumstances, the order Ex. B-1 passed by the authority under the Act will have to govern until and unless it is set aside by any process known to law, including the process, if any, available under the Act and that will provide an answer for the first defendant to the action for possession prosecuted by the second plaintiff. Sustaining this ground put forth by the learned Counsel for the first defendant, the appellant herein, we are obliged to interfere In appeal.

5. We must also record that Mr. G. Subramaniam, learned Counsel for the first defendant, advanced the argument that any alienation, including a lease, during the currency of any order of injunction, will not make the lease itself a' void one. Equally so, Mr. T. Vadivelu learned Counsel for the second plaintiff, advanced a submission that the muthavalli fulfilled only the character of a manager, the property vesting in the Almighty, and a lessee under him cannot acquire the rights of a cultivating tenant. We have no occasion to go into these aspects, because we have sustained the primary ground of attack put forth by the learned Counsel for the first defendant, appellant herein. Accordingly, this appeal is allowed; the judgment and decree of the Court below are set aside; and the suit will stand dismissed. However, we make no order as to costs, both in the suit and in this appeal.


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