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K. R. Kuppuswami Iyengar Vs. Samikkannu Padayachi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1982)1MLJ13
AppellantK. R. Kuppuswami Iyengar
RespondentSamikkannu Padayachi
Cases ReferredPalaniswami Gurukkal v. Kandappa Gounder
Excerpt:
.....the cultivating tenant was in enjoyment of the entire holding and was, therefore, liable to pay rent in respect thereof, which admittedly he had failed to pay. under those circumstances, on the failure of the respondent to pay the rent within one month after such rent became due, the petitioner secured a right to evict the respondent from the entirety of the holding, or any part thereof but as a result of the proceedings for resumption initiated by the petitioner herein, the original holding has merely 'shrunk in size, in the sense that it had been halved. when once a cultivating tenant renders himself liable to be evicted as a result of the non-availability any longer of the protection from eviction, then he can be evicted from his holding, irrespective of whether the loss of such..........of the respondent.2. this application was resisted by the respondent on the ground that the fair rent in respect of 1 acre and 4 cents out of 1 acre and 37 cents had not been finally fixed and that, therefore, the rent is payable only in accordance with the adjudication in o.s. no. 778 of 1969, district munsif's court, chidambaram, at the rate of rs. 100 for the land of an extent of 1 acre and 4 cents and rs. 100 for the 33 cents of coconut tope. there was no yield at all in fasli 1382 from the coconut tope, according to the respondent, and only a sum of rs. 100 was payable towards rent. the claim for rent made by the petitioner for the land as well as the coconut tope was characterised as exaggerated. ultimately, the respondent prayed that he may be granted two months' time to pay the.....
Judgment:
ORDER

V. Ratnam, J.

1. The landlord is the petitioner in this civil revision petition. An application under Section 3(4)(a) of the Tamil Nadu Cultivating Tenants Protection Act (XXV of 1955), (hereinafter referred to as the Act), was filed by the petitioner, praying for an order of eviction against the respondent, on the ground that the respondent had not paid the fair rent fixed in respect of an extent of 1 acre and 4 cents and also the rent of Rs. 500 in respect of an extent of 33 cents of coconut tope, for fasli 1382 (1st July, 1972 to 30th June, 1973). In the course of the application, the petitioner had stated that fair rent had been fixed only in respect of an extent of 1 acre and 4 cents out of a total extent of 1 acre and 37 cents at Rs. 286 and that even that rent had not been paid in respect of the cultivable lands. As regards the coconut tope of an extent of 33 cents, the petitioner stated that the yield from the 51 coconut trees would be 3,000 coconuts out of which the petitioner's share would be 1,000 coconuts, but restricted his claim to a sum of Rs. 500 towards this. In the application for eviction, the petitioner had also adverted to the proceedings initiated by him, under Section 4-A(2) of the Act for resumption of one-half of the extent under the cultivation of the respondent and his taking possession of 68J/2 cents out of 1 acre and 37 cents, under the cultivation of the respondent, as per the order of the revenue Court, dated 5th September, 1973. The application for eviction was filed by the petitioner towards: the end of 1973, after the resumption of one-half of the extent of the lands under the cultivation of the respondent.

2. This application was resisted by the respondent on the ground that the fair rent in respect of 1 acre and 4 cents out of 1 acre and 37 cents had not been finally fixed and that, therefore, the rent is payable only in accordance with the adjudication in O.S. No. 778 of 1969, District Munsif's Court, Chidambaram, at the rate of Rs. 100 for the land of an extent of 1 acre and 4 cents and Rs. 100 for the 33 cents of coconut tope. There was no yield at all in fasli 1382 from the coconut tope, according to the respondent, and only a sum of Rs. 100 was payable towards rent. The claim for rent made by the petitioner for the land as well as the coconut tope was characterised as exaggerated. Ultimately, the respondent prayed that he may be granted two months' time to pay the entire rent of Rs. 200 for the total extent of 1 acre and 37 cents.

3. Before the Revenue Court, Mayuram, the petitioner was examined-in-chief on 25th September, 1974 and the further examination was deferred. Thereafter, on 11th October, 1974, the Revenue Court proceeded to pass: an order directing the respondent to pay the petitioner a sum of Rs. 188-50 P. This was: on the footing that the remedy of the petitioner was before the civil Court to collect the arreiar of rent in respect of one-half of the property already taken possession of by the petitioner and the respondent is liable to pay Rs. 188-50 P. being the proportionate fair rent for 68 cents, on the basis of the fixation of the fair rent for 1 acre and 4 cents at Rs. 286. It is the correctness of this order that is challenged in this civil revision petition.

4. The first contention of the learned Counsel for the petitioner is that the revenue Court was in error in holding that the remedy of the petitioner would be to collect the arrear of rent through a civil Court, especially when the respondent was a cultivating tenant in respect of the entire extent of 1 acre and 37 cents during the fasli in question, namely, fasli 1382 and had not paid the rent. In this connection, the learned Counsel for the petitioner relied on Section 14 of the1 Tamil Nadu Fixation of Fair Rent Act and also the decision in Palaniswami Gurukkal v. Kandappa Gounder : (1967)2MLJ438 . On the other hand, the learned counsel, for the respondent submitted that with reference to arrears for a previous fasli, the cultivating tenant cannot be evicted from his holding which is really a new holding as a result of the resumption proceedings and that only in respect of default in the payment of rent with reference to such a holding, an order for eviction can be passed against the respondent and such not being the case, the Revenue Court was justified in directing the petitioner to resort to the remedy before the civil Court.

5. In order to appreciate and consider the rival submissions, it is necessary to examine the relevant provisions of the Tamil Nadu Act XXV of 1955. That Act had been passed with the avowed object of protecting the cultivating tenants from unjust eviction and to afford protection to them. Section 2 of the Act contains the definitions of 'cultivating tenant', 'landlord', etc. In this case, there is no dispute that the respondent is a cultivating tenant and the petitioner is a landlord and, therefore, it is unnecessary to notice the definition of these expressions. Section 2(c) of the Act defines 'holding' as meaning 'a parcel or parcels of Jand held by a cultivating tenant'. The other definitions in section 2 of the Act are unnecessary for purposes of the present case. Section 3(1) of the Act confers on cultivating tenants a protection from eviction by or at the instance of the landlord, be it in execution of a decree or order of a Court or even otherwise. But even as indicated by the opening words of section 3(1) of the Act, the protection from eviction is not total or absolute, but only subject to the provisions made in the succeeding Sub-sections. The protection conferred by Section 3(1) of the Act on cultivating tenants from eviction extends to the holding of such cultivating tenants or any part thereof. Under Section 3(2) of the Act, the protection from eviction conferred under Section 3(1) of the Act has been made inapplicable to a cultivating tenant under certain circumstances. Section 3(2)(a) of the Act negatives such a protection to the cultivating tenant in areas where the Thanjavur Tenants and Pannaiyal Protection Act, 1952 was in force before the date of the coming into force of the Tamil Nadu Cultivating Tenants Protection (Amendment) Act, 1956, if at the commencement of the Act (Tamil Nadu Act XXV of 1955), the cultivating tenant was in arrears and does not pay such rent within six weeks after such commencement. The section further provides that if in respect of rent payable by the cultivating tenant to the landlord after the commencement of the Tamil Nadu Act XXV of 1955, the cultivating tenant does not pay such rent within a month after such rent becomes due, then even in that case the protection conferred under Section 3(1) of the Act is not available. Section 3(2)(aa) of the Act makes provision for areas where the provisions of Thanjavur Tenants and Pannaiyal Protection Act, 1952 were not in force. With reference to those areas, if the arrears of rent payable to the landlord and accrued due subsequent to 31st March, 1954, is not paid within a month after the commencement of the Tamil Nadu Act XXV of 1955 or in respect of rent payable after such commencement, the cultivating tenant does no pay the rent to the landlord within a month after the rent becomes due, then in those events, the protection from eviction again would not be available. Section 3(2)(c) and (d) of the Act and the Explanations do not have any application to the present case. Section 3(3)(a) of the Act provides for the deposit of rents by the cultivating tenant or if the rent is payable in kind, its market value on the date of deposit, to the account of the landlord. Section 3(3)(a)(i) of the Act provides for the deposit of rents accrued due subsequent to 31st March, 1954, within a month after the commencement of Tamil Nadu Act XXV of 1955. Under Section 3(3)(a)(ii) of the Act, it is provided that in the case of rent accrued due after the commencement of the Tamil Nadu Act XXV of 1955, it should be deposited within a month after the date on which the rent accrued due. Section 3(3)(b) of the Act provides for a summary enquiry into the correctness of the deposit and for the granting of further time, if necessary, to enable the cultivating tenant to make good the deficiency. Further provision is also made thereunder that if the deposit is found to be correct, or the deficiency is made good within the time granted, then the cultivating tenant is deemed to have paid the rent. If the cultivating tenant fails to make good the deficiency after having been granted time to do so, then the landlord is given the right to evict the cultivating tenant as provided under Section 3(4) of the Act. Section 3(4)(a) of the Act confers a right on a landlord to seek an order for eviction against a cultivating tenant by making an application to the Revenue Divisional Officer. Section 3(4)(b) of the Act provides for the holding of a summary enquiry into the matter and for the passing of an order, either allowing the application or dismissing it and in a case where the cultivating tenant had not availed himself of the statutory provisions relating to deposit, the Revenue Divisional Officer has been empowered to allow such time as he considers! just and reasonable to enable the cultivating tenant to deposit the arrears of rent. If there is a deposit by the cultivating tenant, then again he shall be deemed to have paid the rent under Sub-section (3)(b) of Section 3 of the Act. But if the cultivating tenant fails to deposit the same, then the Revenue Divisional Officer is obliged to pass an order for eviction. Section 4 of the Act provides for the remedy of a dispossessed cultivating tenant to be restored to possession and in this case that provision has no application. Section 4-A (1) of the Act, as it then stood prior to its deletion by Section 2 of the Tamil Nadu Act XVIII of 1976 effective from 5th July, 1973, provided for the resumption by a landlord from the cultivating tenant of an extent of land not exceeding one-half of the extent leased out to the cultivating tenant for the purpose of personal cultivation. Section 4-A (2) of the Act provided for the filing of an application for this purpose by the landlord and the holding of an enquiry into the matter by the Revenue Divisional Officer and for the passing of an order, either directing the restoration or dismissing the application. Powers to impose conditions on the landlord in the matter of reimbursement of the expenses incurred by the cultivating tenant or the labour contributed by him or any unhar-vested crop had also been conferred on the Revenue Divisional Officer. Section 4-A(3) of the Act provided for the retention by the cultivating tenant of one-half of the extent sought to be resumed by the landlord by an offer to pay the rent at the rate payable before 27th September, 1955. Section 4-A(4) and (5) of the Act enumerated the circumstances under which a landlord would be disqualified from resuming possession of one-half of the extent. Section 4-A(6) of the Act outlined the consequences of a failure on the part of the landlord to carry on personal cultivation within a year of resumption and the allowing of the land to lie fallow or the securing of an order for resumption under fraudulent misrepresentations. In all those cases, on an application by the cultivating tenant, the Revenue Divisional Officer was empowered to restore the cultivating tenant to that land so that he may hold it with all the rights and subject to all the liabilities of a cultivating tenant. The other provisions of the Act do not throw any light on the controversy in the present case and need not, therefore, be noticed.

6. A consideration of the provisions of the Act particularly Section 3 thereof points out that though, generally a cultivating tenant would be entitled to protection from eviction in respect. of his holding, yet, under certain circumstances, such protection would not be available. One of such situations would be when the cultivating tenant has not paid the rent within a month after such rent becomes due. If, therefore, the cultivating tenant does not pay the rent within the time provided under the provisions of the Act, the protection from eviction is withdrawn and the landlord is entitled to move the appropriate machinery constituted under the Act to secure an order for eviction on the very ground that the cultivating tenant has forfeited the protection owing to non-payment of the rent. In other words, the right to enforce the consequences of such non-payment would arise in a case where the cultivating tenant had not paid the rent within a month after the rent becomes due. The remedy of a landlord in such cases is to file an application praying for an order of eviction against the cultivating tenant from his holding, that is, the parcel or parcels of the land held by a cultivating tenant. The non-payment of rent by a cultivating tenant is visited with the consequence of his being evicted from the parcel of the land which is under his cultivation. It may be that the holding continues to be the same or is altered either voluntarily or by operation of law, as in this case. But the remedy conferred on the landlord for the non-payment of rent by the cultivating tenant would be to evict the cultivating tenant from the land held by him. In this case, as seen earlier, during the fasli in question, the cultivating tenant was in enjoyment of the entire holding and was, therefore, liable to pay rent in respect thereof, which admittedly he had failed to pay. Under those circumstances, on the failure of the respondent to pay the rent within one month after such rent became due, the petitioner secured a right to evict the respondent from the entirety of the holding, or any part thereof but as a result of the proceedings for resumption initiated by the petitioner herein, the original holding has merely 'shrunk in size, in the sense that it had been halved. But on this account, the right of the I petitioner to evict the respondent-cultivating itenant from the holding which forms a part of the previous holding, cannot be said to have been in any manner affected. To accept the contention of the learned Counsel for the respondent would lead to startling results. All that a cultivating tenant has got to do is to part with a portion of the holding in some manner or other and the cultivating tenant, though he does not pay the rent in respect of the holding, would nevertheless be enabled lo say that the arrears of rent is not in respect of the holding then held by him. That would mean that the cultivating tenant can successfully avoid paying rent to the landlord in respect of the holding and by the process of diminishing the size of the holding virtually secure a total immunity from eviction, quite contrary to the provisions of the Act. Such a situation cannot be recognised and encour-jaged at all even under the guise of affording protection to the cultivating tenant from unreasonable or unjust eviction. When once a cultivating tenant renders himself liable to be evicted as a result of the non-availability any longer of the protection from eviction, then he can be evicted from his holding, irrespective of whether the loss of such protection was on account of a failure to pay rent in respect of a larger holding or the actual holding, as the case may. be. In the present case, as noticed earlier, the relationship of landlord and cultivating tenant has not in any manner been altered by the resumption proceedings. The effect of the proceedings taken by the petitioner for resumption under Section 4-A of the Act is merely to reduce the size of the holding, cannot be stated to be a new tenancy in respect of which a right to evict would arise in favour of the landlord only in the event of the cultivating tenant omitting; to pay the rent in respect of the reduced holding only. Having regard to these considerations, the decision relied on by the learned Counsel for the petitioner is not really helpful as that dealt with a case of the power of the Revenue Court to give a direction regarding the deposit of time-barred rent by a cultivating tenant. Likewise, Section 14 of the Tamil Nadu Act, XXIV of 1956 also does not assist the petitioner as that provision merely enables the cultivating tenant who is disqualified from claiming the benefits of the fixation of fair rent to avail himself of those benefits by relinquishing such portion of the land as would enable him to take advantage of the benefits of that Act. In view of the above considerations, the Revenue Court was in error when it held that the petitioner has to work out his remedy in respect of the extent resumed only before the civil Court and not in these proceedings.

7. The learned Counsel for the petitioner next contended that the Revenue Court fell into a serious error in proceeding to fix the amount to be deposited by the respondent, on the basis of the fixation of fair rent in respect of 1 acre and 4 cents and in proportion to the extent of 681/2 cents held by the respondent. The learned Counsel for the respondent also frankly admitted that the mode of computation of the arrears by the Revenue Court is erroneous. For the fasli in question, namely, 1382, the respondent was in possession of the entire extent of 1 acre and 37 cents, including 33 cents of cocoanut tope in respect of which no fair rent had been fixed. The sum of Rs. 286 fixed as fair rent is only for 1 acre and 4 cents and in respect of an extent of 33 cents of cocoanut tope it could only be on the basis of contract or reasonable rent. In this case, though the respondent denied having got any yield from the cocoanut trees, yet, there is absolutely no evidence whatever in support thereof. On the other hand, the evidence of the petitioner examined as P.W. 1 is to the effect that there are 51 cocoanut trees and that there would be formally five cuttings during the course of the year and that would yield about 800 cocoanuts every time. Out of 4,000 cocoanuts, the petitioner has claimed only 1,000 cocoanuts, the value of which has been estimated by him at Rs. 750. But even that had been rounded off to Rs. 500 in the application for eviction as well as in his evidence. There is absolutely no contra evidence. The amount of Rs. 500 claimed by the petitioner is very reasonable. Therefore, for the fasli in question the respondent had not paid the petitioner the sum of Rs. 786, namely, Rs. 500 towards the cocoanut tope and Rs. 286 for the extent of 1 acre and 4 cents of land. From the records it is found that a sum of Rs. 188-50P. has been paid by the respondent pursuant to the order of the Revenue Court. Since the computation of the arrears, by the Revenue Court has been held to be incorrect, the respondent would sdll be liable to pay Rs. 597-50P.

8. The order of the Revenue Court, Mayu-ram, is, therefore set aside and the respondent is directed to deposit to the credit of P. No. 132 of 1974, Revenue Court, Mayuram, a sum of Rs. 597-50P. on or before 30th November, 1981. If the respondent falls to do so, the Revenue Court will proceed to pass appropriate further orders. The civil revision petition is, therefore allowed. No order as to costs.


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