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Shanmugathammal and ors. Etc. Vs. Valliappan Alias Vallinayagam and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1971)2MLJ149
AppellantShanmugathammal and ors. Etc.
RespondentValliappan Alias Vallinayagam and ors.
Cases ReferredPeriyakaruppa Thevar v. Veiled
Excerpt:
- - 5. the learned counsel for the petitioners raised another contention that, when the petitioner in the revision petitions came forward with an express written tenancy and had failed to establish the same, the lower court was not justified in holding that there has been an implied tenancy......proceeded to direct resumption without giving any specific finding as to whether there was any dispossession from the lands in question and whether such dispossession was within two months preceding the date of the eviction petition. as already stated, in respect of the wet lands, the dispossession was claimed to be on 9th november, 1961, and in respect of dry lands the dispossession was alleged to be on 15th october, 1961. the lower court mainly relied on the fact that the respondents therein had denied the tenancy put forward by the petitioner before it and held that as such the allegation of dispossession must be true. the lower court has not discussed the evidence adduced by the parties on the question of dispossession and given a finding as to when the dispossession took place......
Judgment:

G. Ramanujam, J.

1. Civil Revision Petitions Nos. 1768 of 1966 and 615 of 1967 have been filed by respondents 2 to 5, and 6 and 7 respectively in R.P. No. 1 of 1965 on the file of the Sub-Collector, Sivakasi, wherein an order for restoration of possession of the lands involved therein was made against them. Civil Revision Petition Nos. 1769 of 1966 and 616 of 1967 have been filed by respondents 2 to 5 and 7 to 9, and respondents 10 to 12 respectively in R.P. Nos. 2 of 1965 on the file of the Sub-Collector, Sivakasi against the order for restoration of certain other lands. One Valliyappan alias Vallinayagam filed the above R.P. Nos. 1 of 1965 and 2 of 1965 Under Section 4 (5) of the Madras Cultivating Tenants' Protection Act, 1955 hereinafter referred to as ' the Act' for restoration of possession of two sets of lands. It was his case that the lands involved in both the petitions belonged to the first respondent therein, that he took the wet lands covered by R.P.No. 1 of 1965 in fasli 1365 after executing a lease deed agreeing to pay 8 bags of paddy, that he obtained a lease of 12 kurukkams of dry lands covered by R.P.No. 2 of 1965 on a rental of Rs. 8 per kurukkam from fasli 1369 by a lease agreement dated 4th February, 1959. He alleged that he was paying rent for the wet lands from fasli 1365 to fasli 1368 at the rate of 8 bags of paddy that he paid an increased rent of 10 bags of paddy for fasli 1369 and 1370, that the first respondent in R.P.No. 1 of 1965 purported to sell the wet lands on 20th November, 1959 to the second respondent who in turn had purported to sell the lands to respondents 4 and 5 on 26th March, 1960 and that on 9th November, 1961 the first respondent's men forcibly dispossessed and evicted him from the wet lands in question. As regards the dry lands, the allegation of the respondents herein was that the first respondent in R.P.No. 2 of 1965 had executed sales to various persons subsequent to the lease in his favour that on 15th October, 1961 the first respondent and his men dispossessed him from those lands and that the sales in favour of the various persons were only ostensible sales without any intention of transferring title to the so-called alienees. The respondents herein had therefore sought an order for restoration of possession by the first respondent and other respondents in the Revision Petitions who are said to have acquired rights from the first respondent, on the ground that he has been unauthorisedly evicted from the leasehold lands of which he is a cultivating tenant.

2. Both the petitions were resisted by the first respondent therein and the alienees of the various items. The alleged tenancy put forward by the respondent herein in respect of the wet and dry lands was denied. They claimed that the sales by the first respondent to the other respondents therein were bona fide and real, and that they were fully supported by consideration. They denied that the sales were sham, nominal and had brought about for the purpose of evicting the respondent herein. They also stated that some of the sale deeds have been preceded by agreements of sale and there is no question of any mala fide motive in executing the sale deeds by the first respondent.

3. As regards the lands covered by R.P. No. 1 of 1965 the lower Court, after making reference to the various exhibits filed by either side and the oral evidence adduced on behalf of the petitioner before it held that the tenancy alleged by the petitioner before it had been sufficiently established. Though the petitioner therein came forward with a written lease in respect of both the wet and dry lands, the Court below was not inclined to accept that case, but held that a tenancy agreement can be implied having regard to the cultivation of the lands by him as spoken to by his witnesses. On the question of the genuineness of the sales effected by the first respondent therein the lower Court did not give any conclusive finding in respect of the wet lands but had expressed its opinion that some of the sale deeds relating to the dry lands can be said to be motivated and not genuine. The lower Court, after having held that the tenancy agreement pleaded by the petitioner before it can be inferred from the circumstances of the two cases, straightway proceeded to direct resumption without giving any specific finding as to whether there was any dispossession from the lands in question and whether such dispossession was within two months preceding the date of the eviction petition. As already stated, in respect of the wet lands, the dispossession was claimed to be on 9th November, 1961, and in respect of dry lands the dispossession was alleged to be on 15th October, 1961. The lower Court mainly relied on the fact that the respondents therein had denied the tenancy put forward by the petitioner before it and held that as such the allegation of dispossession must be true. The lower Court has not discussed the evidence adduced by the parties on the question of dispossession and given a finding as to when the dispossession took place. The jurisdiction of the lower Court to order restoration of possession Under Section 4(5) depends upon the fact whether it had been moved within two months of the date of dispossession. If the dispossession had taken place beyond two months preceding the date of the petition, the lower Court cannot give any relief. The lower Court should have given a specific finding as to the dispossession alleged on 9th November, 1961 and 15th October, 1961, was true and if not, find out what are the actual dates of dispossession. As the jurisdiction of the lower Court to grant the relief sought for depends upon the dates of dispossession, the lower Court cannot proceed to grant the relief of restoration of possession without giving a finding as to when dispossession took place. This is the main ground of attack made against the orders impugned in these revisions by the learned Counsel for the petitioners.

4. The learned Counsel for the respondent, however, states that though there is no specific finding by the lower Court as regards the dates of dispossession, a perusal of the final paragraph of both the judgments of the lower Court shows that the lower Court has accepted the case of the petitioners before it that dispossession took place on the dates alleged in the petitions. As already stated, on the question of dispossession there is no discussion in the judgment, and there is no reference even to the deposition of the petitioner before it relating to the factum of dispossession. If his evidence had been discussed in the judgment and the lower Court stated that the dispossession as alleged by the petitioner had been established, it can be taken that whatsoever has been said by the petitioner in his petition and in his evidence before the lower Court had been accepted by the lower Court. In the absence of any discussion about his evidence by the Court, it is not possible for this Court to say that the lower Court had accepted whatever has been stated by the petitioner on the question of dispossession. I therefore hold that a finding as to dispossession is necessary before the relief Under Section 4 (5) is granted by the Jower Court and the order of the lower Court directing restoration of possession without such a finding cannot be upheld.

5. The learned Counsel for the petitioners raised another contention that, when the petitioner in the Revision Petitions came forward with an express written tenancy and had failed to establish the same, the lower Court was not justified in holding that there has been an implied tenancy. I am not inclined to accept the contention that the lower Court is not justified in holding that there has been an implied tenancy agreement in these cases. In these cases, the tenant came forward with a case that lease deeds have been executed but that these lease deeds were in the possession of the first respondent in the Revision Petitions who is keeping them back without filing them into Court. In such circumstances, the non-production of the lease deeds by the petitioner before the lower Court will not disentitle him from claiming the benefits under the Act if he is able to establish the tenancy otherwise than by production of the documents. In these cases, the lower Court had considered the evidence of the neighbouring land owners as also the evidence of Gram Sevak and the Revenue Inspector who have all deposed that the petitioner before the lower Court was cultivating lands a few months before the date of filing of these petitions. The lower Court has accepted the said oral evidence as also that of the petitioner before it and held that the tenancy has been established even though the documents of lease had not been produced. I am not in a position to say that the finding as to the existence of the tenancy between the petitioner and the first respondent had not been established in these cases. I have to therefore accept the finding of fact arrived at by the Court below that the relationship of landlord and tenant had been established between the petitioner and the first respondent before the lower Court. But the question still is whether the petitioner before the lower Court had established his claim to be a cultivating tenant under the first respondent in respect of the properties in question. The lower Court has merely found that the alleged tenancy has been essablished without further finding whether the petitioner is a cultivating tenant as defined in the Act, entitling himself to get the benefits under the Act. The finding of the lower Court merely amounts to saying that the petitioner is a tenant under the first respondent and that fact alone will not bring him within the definition of a cultivating tenant Under Section 2 (aa) of Madras Act (XXV of 1955).

6. The learned Counsel for the petitioners put forward a further ground of attack against the impugned orders of restoration of possession. The contention was that on the date the petitions for restoration were filed the first respondent before the lower Court had ceased to be the owner of the property and his title having passed to the alienees, there is no relationship of landlord and tenant between the first respondent and the petitioner before the lower Court and that in such an event, no relief can be granted to the petitioner by directing the first respondent who has parted with his rights to the property to restore possession. It is stated that an order for possession can be made only against the landlord and not against an ex-landlord who has parted with his rights in the property in favour of third parties. On behalf of the alienees also it was contended that the petitioner before the lower Court having questioned the genuineness of the sales in their favour and having denied their title to the property, he cannot claim any relief as against them in these proceedings and that any relief that he may seek against them cannot be Under Section 4 (5) of Madras Act XXV of 1955 which enables the lower Court to give a direction only to the landlord.

7. On behalf of the petitioners reference was made to the decision in Kuppammal v. Vellingiri (1957) 1 M.L.J. 283 : I.L.R. (1957) Mad. 448, where a Division Bench of this Court had held that Section 4(1) of Madras Act XXV of 1955 contemplated restoration of possession only of cultivating tenants who were in possession of their holdings on 1st December, 1953, but not of persons who ceased to be in possession at the date of the commencement of the Act by reason of an eviction as specified in the several provisions and that where a tenant voluntarily and willingly surrenders possession of the land to the landlord, he will not be entitled to an order for restoration to possession under the provisions of Section 4. Based on the said decision, it is contended by the petitioners that once the relationship of landlord and tenant comes to an end, there is no question of invoking Section 4(5) of Madras Act (XXV of 1955) for ordering restoration. It is stated that by making the bona fide alienations the first respondent has ceased to be the landlord and as such Section 4 (5) cannot be invoked against such a person. I am not inclined to construe the decision as supporting the contention of the learned Counsel for the petitioners. What the decision intended to lay down was that Section 4 (1) cannot be invoked by a tenant when he himself has surrendered possession voluntarily and willingly and thus had terminated the tenancy in his favour before the commencement of the Act. That decision does not contemplate a situation as the one arising in these cases.

8. Kumarappa Chettiar v. Audiappa Chettiar : (1958)1MLJ394 was also relied on in support. In that case Rajagopalan, J., had laid down that in order to entitle a person to apply for restoration to possession of land under the Madras Cultivating Tenants Protection Act, 1955, he must be a cultivating tenant within the meaning of the Act which means that there should be the relationship of landlord and tenant between the parties. In that case, the learned Judge was concerned with a person who was cultivating the lands under an agreement with some one who had no title to the land and who therefore, was not his landlord and he was therefore held to be not a cultivating tenant as defined in the Act and as such he was disentitled to seek restoration of possession Under Section 4 (5) of the Act when his possession was disturbed by the legal owner of the land. That decision also does not contemplate a situation arising herein. The mere fact that the landlord parts with his rights to an alienee without reference to the cultivating tenant, does not mean that the person who is a cultivating tenant under the transferor automatically ceases to come within the definition of a 'cultivating tenant' under the Act. His status as a cultivating tenant cannot be taken away by such a transfer. The only difference brought about by the landlord's alienation of the property is to substitute a new landlord in his place. A cultivating tenant does not cease to get his benefits under the Act merely because the landlord has parted with his property. The statutory rights inhered in the cultivating tenant cannot be taken away by an unilateral Act of the landlord. I am, therefore, not inclined to accept the contention of the petitioners that once a landlord parts away with his rights, the rights of the tenant, if any, as a cultivating tenant under the Act would be taken away.

9. Then the petitioners further contended that the lower Court had no jurisdiction to go into the question as to the validity or genuineness of the alienations made by the first respondent before it. As already stated, the lower Court has doubted the genuineness of the alienations made by the first respondent. On this aspect of the case, I am inclined to agree with the case of the petitioners. The lower Court which is a creature of the statute cannot embark upon disputed questions of title to the properties. The Act nowhere prohibits alienation by the landlord and in the absence of any prohibition in the Act, an alienation made by the landlord cannot be held to be invalid on the ground that it has been intended to be used against a cultivating tenant. Having regard to the objects for which the statutory Tribunal has been constituted, it cannot be said that it had jurisdiction either to restrain the landlord from alienating the properties or to declare such alienations void as defeating the provisions of Madras Act (XXV of 1955). Hence the findings and observations by the lower Court on this aspect have to be set aside. The Court below has to accept the alienations made by the first respondent as real and genuine and proceed to work out the petitioner's right against the transferors if it is possible.

10. In C.R.P. Nos. 615 and 616 of 1967 an additional contention was raised by the petitioners therein. It was contended that they have been impleaded as legal representatives of the deceased first respondent before the lower Court, and that the first respondent having died pending the proceedings before the lower Court, the lower Court should have treated the proceedings as abated. It is stated that neither Madras Act XXV of 1955 nor the rules framed thereunder make any provision for bringing the legal representatives on record. Reliance is made on a decision in Devichand Mool-chand v. Dhanraj Kantilal : (1948)1MLJ276 , which arose under the Madras Buildings (Lease and Rent Control) Act, 1946. In that case the landlord filed a petition for eviction against a tenant from certain premises on the ground that he had wilfully defaulted to pay the monthly rent and that the landlord required the premises bona fide for his own business. The landlord however died before the application came up for hearing. His son thereupon sought to bring himself on record as his legal representative. That petition was resisted on the ground that there is no provisions in the Act to bring on record the legal representatives to continue the proceedings initiated already, and that the petitioner's only remedy was to file a fresh petition for the same relief. A Division Bench of this Court held that in the absence of incorporation of the provisions of the Code of Civil Procedure, in the rules of procedure for the Tribunals constituted under the Rent Control Act, there was no justification for the application of the principles of those provisions. The Court also pointed out the necessity for a rule to be made for the bringing on record of legal representatives on the death of the original applicant. Reliance was also placed on a decision in Periyakaruppa Thevar v. Veiled : AIR1963Mad338 , where it has been held that Order 9, Rule 13 of the Code of Civil Procedure would not in terms apply to the reference proceedings Under Section 146 of the Criminal Procedure Code and that the provisions relating to the impleading of legal representatives of a deceased party also govern only suits and appeals. But the decisions above referred to may not apply to the proceedings initiated under Madras Act (XXV of 1955). In my opinion, Rule 8 of the Rules framed under Madras Act (XXV of 1955) enables the Tribunal to invoke the provisions of the Code of Civil Procedure, for bringing the legal representatives on record in the place of a deceased party. Rule 8(i) shows that every Court constituted under the Act shall have the powers exercisable by a civil Court in the trial of a suit. Rule 8 (ii) specifies the matters in respect of which the provisions of the Code of Civil Procedure, can be resorted to. One such matter is 'the addition of parties'. 'Addition of parties' may arise either when new parties in addition to the existing parties are brought on record or when new parties are brought in the place of parties deceased. I am not inclined to give a restricted meaning to the words 'addition of parties' occurring in Rule 8(ii)(e) as contended for by petitioners in these revision petitions. I therefore hold that the lower Court had jurisdiction to bring the petitioners in G.R.P. Nos. 615 and 616 of 1967 as parties on record in the place of the deceased first respondent before it.

11. In the result, the orders impugned in these revisions are set aside and the matters are remanded to the lower Court for fresh disposal in the light of the observations made in this judgment and after giving a definite finding as to whether the respondent in these petitions (Petitioner in the Revision Petitions) is a cultivating tenant in respect of the lands in question and whether the dispossession alleged against the deceased first respondent before the lower Court is true and if so, on that date. The Revision Petitions are accordingly allowed, but there will be no order as to costs.


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