M.M. Ismail, J.
1. The suit property originally belonged to one Kuppana Goundar who died before 1937. Kulliammal was his widow and he had two sons and four daughters. The respondent herein is the husband of one of the daughters. One of the sons of Kuppana Goundar was Rangappa Goundan who died in 1947 survived by his widow Ayyammal. In view of the fact that the other son of Kuppana Goundar died unmarried even during the lifetime of Rangappa Goundan, Rangappa Goundan became entitled to the entire property of Kuppana Goundar and after his death in 1947 his widow Ayyammal succeeded to the property. O.P. No. 40 of 1948 was filed by Kulliammal for appointment of guardian for the person and property of Ayyammal who was a minor and that O.P. was ordered. On 28th August, 1954, Kulliammal executed a lease deed in favour of the respondent herein in respect of the suit property for a period of ten years and received the entire rent in advance. On 9th March, 1960, Ayyammal sold the suit property to the plaintiff. Thereafter the plaintiff instituted the present suit, namely, O.S. No. 522 of 1960 on the file of the Court of the District Munsif of Coimbatore for possession of the suit property and for recovery of mesne profits from the respondent. In the written statement filed by the respondent, he contended that Ayyammal had no title to the property at all and even if she had any title she had lost it by allowing Kulliammal to execute the lease deed and allowing her and the respondent to remain in possession of the property. In paragraph 17 of the written statement, he stated as follows:
' The defendant denies and repudiates the allegations in paragraph 19 of the plaint. The defendant has taken the lease deed for the fair rent demanded by the lessor Kulliammal and has also paid the entire rent for the full period often years in advance to his lessor. Plaintiff who has no title and right to possession is not entitled to any mesne profits. In any event, the mesne profits claimed is excessive. At all events, the defendant is protected by the provisions of the Madras Cultivating Tenants' Protection Act and in so far as he has paid rents to his landlady Kulliammal, who alone inducted him into possession under the registered lease deed and who has not had any claim or demand from Ayyammal, the alleged vendor of the plaintiff, is not liable to pay any rent to the plaintiff, even under the provisions of the Madras Cultivating Tenants' Protection Act. In any view therefore the claim for mesne profits as made by the plaintiff is unsustainable in any event till the full period of lease runs out.'
On these pleadings of the parties, the learned District Munsif framed the necessary issues and found the title in favour of Ayyammal and thereafter in favour of the plaintiff and also came to the conclusion that the respondent herein is not entitled to the protection of the Madras Cultivating Tenants' Protection Act, since he was only a trespasser, and by judgment and decree dated 3rd July, 1961, decreed the suit with costs directing the respondent to put the appellant in possession, of the suit property. The judgment also provided that mesne profits be determined under separate enquiry under Order 20, Rule 12, Code of Civil Procedure. As against this judgment, the respondent preferred A.S. No. 164 of 1962 on the file of the Court of the Subordinate Judge of Coimbatore. Before the learned Subordinate Judge, the respondent conceded the title of Ayyammal and therefore the appellant, but contended that he was entitled to the benefits of the Cultivating Tenants* protection Act and as such the civil Court had no jurisdiction to try the suit. The learned Subordinate Judge by his judgment and decree dated 28th November, 1962 allowed the appeal, set aside the judgment arid decree of the trial Court and transferred the suit to the file of the Revenue Divisional Officer, Coimbatore, under Section 6-A of the Madras Cultivating Tenants' Protection Act for disposal according to law. The learned Subordinate Judge observes:On the consideration of the evidence especially of P.W. 1 and P.W. 3 who admits that Kulliammal was in possession of the land and she had leased out the land to him on behalf of the plaintiff prior to the lease in favour of the defendant-appellant, I have no hesitation in holding that there is prima facie case that the defendant-appellant is entitled to the benefits of the Cultivating Tenants Protection Act.
It is against this judgment and decree the present Second Appeal has been preferred by the plaintiff.
2. Mr. T.R. Ramachandran, learned Counsel for the appellant put forward the following contentions:
1. The respondent having consistently denied the title of the appellant and his predecessor-in-interest in the written statement, it was not open to him, once that case failed, to take up the position that he was a cultivating tenant of the appellant and therefore entitled to the protection of the Madras Cultivating Tenants' Protection Act.
2. The respondent herein did not put forward any case of being a cultivating tenant and therefore being entitled to the benefits of the Act and consequently the civil Court not having any jurisdiction to order ejectment of the respondent.
3. The finding of the learned Subordinate Judge that the respondent is a cultivating tenant within the scope of the Madras Cultivating Tenants' Protection Act, 1955, is not supported by any evidence.
4. The learned Subordinate Judge has merely recorded that there is a prima fade case that the defendant-appellant is entitled to the benefits of the Madras Cultivating Tenants' Protection Act and in that view transferred the matter to the Revenue Divisional Officer, Coimbatore. But he is not entitled to do so, in the absence of a definite and clear finding that the respondent is a cultivating tenant and is entitled to the benefits of the Act.
3. I shall deal with these points seriatim. As I have pointed out already, throughout, the respondent in the written statement, repeatedly contended that the appellant had no title to the property and therefore the appellant was not entitled to seek eviction of the respondent. In my view, the protection against eviction which a tenant has, under the provisions of the Madras Cultivating Tenants' Protection Act, is only against the landlord and not any other' person. Therefore if a defendant in a suit for ejectment pleads that the plaintiff in the suit is not his landlord, there is no scope for the defendant contending that he is entitled to any protection under the provisions of the Act. The Very basis of the protection conferred by the Act is the existence and the acknowledgment of the relationship of landlord and tenant between the parties and once the defendant 'in a suit for ejectment pleads, that the plaintiff is not the owner of the land and somebody else is the owner of the land and he is a tenant of that somebody else, it is not open to him at any subsequent stage of the proceedings to turn round and say that he would admit the title of the plaintiff but would plead for the protection under the Madras Cultivating Tenants' Protection Act. This view of mine finds support in an unreported decision of this Court in Sabura Ammal and Ors. v. Chinnappa Vanniar and Ors. C.R.P. Nos. 1093 to 1095 of 1957. Therefore, I hold that the respondent, having taken up a definite and categorical stand, that the appellant did not have title to the property, cannot subsequently, when that case, was found against him, turn round and say that he would admit the title of the plaintiff but would plead for protection under the Madras Cultivating Tenants' Protection Act.
4. With regard to the second point, I have already deferred to paragraph 17 of the written statement where alone a reference to the Madras Cultivating Tenants Protection Act finds a place. Even there, from the extract I have given, it will be seen that the reference to the Act has been made only for the purpose of contending that the respondent, having paid the rents to Kulliammal as demanded by her, was not liable to pay any mesne profits. In view of this limited scope of reference to the Madras Cultivating Tenants Protection Act, there was also no specific case put forward by the respondent that he was entitled to the protection under the Act and consequently the civil Court had no jurisdiction to pass a decree of ejectment against him. Therefore, I find the second point also urged by the learned Counsel for the appellant in favour of the appellant.
5. As far as the third point is concerned, the term, ' cultivating tenant' has been defined, in relation to any land, as a person who carries on personal cultivation on such land under a tenancy agreement, express or implied. I have already pointed out the circumstance that in the defendant's written statement, the respondent-defendant did not at any stage put forward a case that he is a cultivating tenant coming within the scope of the Act and therefore entitled to the protection of the Act, except the limited reference he has made to that Act in paragraph 17 of the written statement. Before a Court can find that the respondent is a cultivating tenant, it must necessarily find him to be a cultivating tenant, as defined in the Act, and one of the essential ingredients of that definition is that the person who so claims-must be carrying on personal cultivation. Admittedly, in this case, there has. been no evidence whatever to show that the respondent was carrying on personal cultivation. If that be the case, it is clear that the finding of the learned Subordinate Judge that the respondent is a cultivating tenant is a finding not supported by any evidence on record.
6. The fourth point is in relation to what the learned Subordinate Judge has recorded as to the prima facie case. Panchapakesa Ayyar, J., in Syed Sahib v. Angamuthu Moopan : (1958)1MLJ232 and Subbaratnam Iyer v. Pattavarthi Moopan : (1958)2MLJ184 , had taken the view that a civil Court, when transferring a suit to the Revenue Divisional Officer, is only required to satisfy itself prima facie that the defendant is a cultivating tenant and that it need not give a finding that he is really a cultivating tenant. This view was not approved of by a Bench of this Court in Ramachandra Sastrigal v. Kuppuswami Vanniar (1961)1 M.L.J. 335. The learned Judges in that case pointed out:
We are of opinion that the View taken by Panchapakesa, Ayyar, J., in Syed Sahib v. Angamuthu Moopan : (1958)1MLJ232 and Subbaratnam Iyer v. Pattavarthi Moopan : (1958)2MLJ184 is not correct. With great respect to the learned Judge we are unable to subscribe to the view that a prima facie finding of the civil Court holding that a 'party to the suit is a cultivating tenant can deprive the civil Court of its jurisdiction to try the suit making it incumbent on that Court to transfer the suit to, the Revenue Court. If the view of the learned Judge as expressed by him in those decisions were to prevail it would lead to anomalous results. What is to happen if the Revenue Court were to hold contrary to the prima facie finding of the civil Court that the tenant is not a cultivating tenant entitled to the benefits of the Act? There is no machinery under the Act for the Revenue Divisional Officer to retransfer the proceeding to the file of the civil Court. Further the civil Court cannot lose its jurisdiction to try a suit competently laid before it on tentative conclusions or prima facie findings. Before the civil Court decides not to try a suit it must reach a definite conclusion and must record a comprehensive finding that it has no jurisdiction to deal with the matter. There cannot of course be a summary enquiry by a civil Court on such vital issue as that of jurisdiction to try the suit.
In view of the above decision of a Bench of this Court, the learned Subordinate Judge's conclusion that he was transferring the matter : to the Revenue Divisional Officer simply because there was a prima facie case is wholly erroneous. Apart from that, before the civil Court can transfer the matter to the Revenue Divisional Officer under Section 6-A of the Madras Cultivating Tenants Protection Act, three conditions must be fulfilled. First, the defendant must be a cultivating tenant, secondly, he must be entitled to the benefits of the Act and thirdly he must, on transfer of the proceedings from the civil Court to the Revenue Divisional Officer, be in a position to obtain one or the other of the statutory reliefs provided in his favour under the Act. The jurisdiction of the civil Court to transfer a suit to the Revenue Divisional Officer is dependent upon its finding on these three conditions and if any one of these conditions is not fulfilled, the civil Court does not lose its jurisdiction and it cannot transfer the suit to the Revenue Divisional Officer, In this case, apart from what I have extracted from the judgment of the learned Subordinate Judge, there has been no specific and definite finding by the learned Subordinate Judge that the respondent is a cultivating tenant and is entitled to the benefits of the Act. Because of this as well, the learned Subordinate Judge's decision to transfer the matter to the Revenue Divisional Officer cannot be sustained.
7. In these circumstances, I allow the Second Appeal and set aside the judgment and decree of the learned Subordinate Judge and restore the decree of the learned District Munsif. There will be no order as to costs in this appeal.