1. This second appeal has been posted before us on an order of reference dated 18-3-1981 by Maeswaran J. on the ground that there is a conflict of opinion as between two decisions of this Court Ganesan v. Madurai Achair, (1978) 91 MLW 6 (N. S. Ramaswami J.), on the one hand and Thangavelu Naicker v. Muthukumara Chettiar, : (1979)2MLJ369 (V. Balasubrahmanyan J.) on the other, on the scope of S. 23 of Tamil Nadu Act 40 of 1971, hereinafter referred to as the `Act'. However, after going through the said decisions we are of the view that there is actually no conflict between the views expressed by N. S. Ramaswami J. in Ganesan v. Madurai Achari, (1978) 91 MLW 6 and Balasubrahmanyan J. in Thangavelu Naicker v. Muthukumara Chettiar, : (1979)2MLJ369 . We would like to refer to the legal position as enunciated in the said two decisions.
2. The respondent herein filed a suit for recovery of from the appellant-defendant. The suit was resisted by the defendant on the ground that he was entitled to the benefits of the Act and that the notice to quit was not valid. The trial Court held that the defendant was entitled to the benefits of the said Act and dismissed the suit on the ground of want of jurisdiction by the civil court to want of decree for possession. The unsuccessful plaintiff filed Appeal A. S. 90 of 1977 before the Sub-Court, Mayuram. In that appeal the only question which was taken up for consideration was as to whether the dismissal of the suit on the ground of want of jurisdiction to pass a decree for possession by the civil court could be sustained. The lower appellate court took the view relying on the decision of N. S. Ramaswami J. in Ganesan v. Madurai Achari, (1978) 91 MLW 6, that though the defendant had prima facie shown that he was a tenant under the plaintiff in respect of the suit site and that he was entitled to the benefits of the Act, still the plaintiff was certainly entitled to a decree for possession subject to the defendant's rights, if any, under the said Act. In this view, the lower appellate court set aside the dismissal of the suit by the trial court and passed a decree for possession, however, making it subject to the rights of the defendant under the Act. Aggrieved against the judgment of the lower appellate court, the defendant has filed the second appeal contending that the lower appellate court is in error in passing a decree for possession after having affirmed the view of the trial court that the defendant is entitled to the benefits of the Act.
3. The lower appellate Court has proceeded on the basis that notwithstanding the decree for possession granted by the civil court, the matter could still be agitated by the defendant before the forums constituted under the Act, and that therefore, the defendant will not be prejudiced by the decree being passed in favour of the plaintiff for possession in the suit. The learned counsel for the appellant points out that in the decision in Ganesan v. Madurai Achari, (1978) 91 MLW 6 the facts of the case were entirely different and the principle of that decision has been wrongly applied to the facts of this case by the lower appellate court. The learned counsel for the appellant then relies on the decision of Balasubrahmanyan J. in Thangavelu Naicker v. Mutthukumara Chettiar : (1979)2MLJ369 , wherein the learned Judge has specifically held that in respect of matters to be decided by the authorities constituted under the Tamil Nadu Act 40 of 1971, the civil court has no jurisdiction in view of S. 23 of that Act. The learned counsel for the respondent, however, contends that as per the decision of N. S. Ramaswami J. in Ganesan v. Madurai Achari (1978) 91 MLW 6 the civil court has jurisdiction to pass a decree for possession even in cases where the defendant is found entitled to the benefits of the Act. In the light of the said contentions urged on behalf of the appellant, we have to consider the relevant provisions of the Act and see whether there is any conflict between the decisions referred above.
4. The Tamil Nadu Act 40 of 1971, which received the assent of the President on the 20th December 1971, was enacted for conferring ownership rights on occupiers of Kudiyiruppu in the State of Tamil Nadu Sec. 5 of the Act provides that any agriculturist or agricultural labourer who was occupying any Kudiyiruppu on the 19th June 1971, either as a tenant or as a licencee shall, with effect from the date of the commencement of the Act, be the owner of such Kudiyiruppu and such Kudiyiruppu shall vest in him absolutely free from all encumbrances. Sec. 4 says that if any dispute arises whether any whether any agriculturist or agriculturist labourer was occupying any Kudiyiruppu on the 19th June 1971, for purposes of S. 3 of the Act, such dispute shall be decided by the authorised officer and in deciding the dispute the authorised officer shall follow such procedure as may be prescribed . S. 5 appeals for an appeal against the decision rendered by the authorised officer under S. 4 or S. 23 bars the jurisdiction of the civil court in respect of matters which are to be decided by the authorities constituted under the Act. According to that section, no civil court shall have jurisdiction in respect of any matter which the Government are, or the authorised officer is, empowered by or under the Act to determine.
5. Section 23 of the Act is similar to S. 16 A of the Tamil Nadu Act 10 of 1969. S. 16-A of the Tamil Nadu Act 10 of 1969 came up for consideration before a Full Bench of this court in Periathambi Goundan v. District Revenue Officer, : AIR1980Mad180 . The Full Bench expressed the view that once the Record Officer or any other authority functioning under the Tamil Nadu Act 10 of 1969 had come to the conclusion that the land had been let for cultivation by tenant, the matters provided for in S.. 3 (2) of the Act had to be exclusively determined by such Record Officer or other authority and to that extent, the jurisdiction of the civil court was barred under S. 16-A of the Act. The Full Bench also took the view that after S. 16-A had come into force, the natural and normal course for the parties was to go before the authorities constituted under the Tamil Nadu Act 10 of 1969 to decide the dispute whether a party was a cultivating tenant or not.
6. We have to interpret S. 23 of the Act in the light of the Full Bench decision referred to above. Since S. 23 bars the jurisdiction of the civil court in respect of any matter which the authorised officer constituted under the Act has to decide, in this case, the question whether any agriculturist or agricultural labourer is in possession of the Kudiyiruppu has necessarily to be decided under S. 4 of the Act by the authorised officer. A conjoint reading of S. 4 and S. 23 of the Act indicates that if an agriculturist or agricultural labourer raises a dispute that he is in possession of Kudiyiruppu on the relevant date, he has to approach the authorised officer concerned for a decision on that point and cannot go before a civil court.
7. However, situations may arise when one party proceeds on the basis that the Act does not apply to a particular piece of land, but the other party comes forward with a case that he is entitled to the benefits of the Act in relation to that land. Such was the case before N. S. Ramaswami J. in Ganesan v. Madurai Achari (1978) 91 MLW 6. In that case, the plaintiff came forward with a suit for recovery of possession of the suit property from the defendant and the defendant contended that he is an agriculturist in possession of the suit land as Kudiyiruppu and therefore he cannot be evicted from the suit land. The learned Judge held that the question whether a person is an agriculturist or an agriculturist labourer is under S. 4 left to be decided by the civil court though the further question whether such an agriculturist or an agriculturist labourer is occupying the Kudiyiruppu on the relevant date and as such entitled to the benefits of the Act has necessarily to go before the authorised officer concerned and the civil court will have no jurisdiction to decide that dispute. We are of the view that on the facts, the judgment in Ganesan v. Madurai Achari (1978) 91 MLW 6, cannot be construed as holding that in spite of S. 23 of the Act, the civil court will have jurisdiction to decide the dispute contemplated by S. 4. According to the learned Judge, where a plaintiff files a suit for recovery of possession of a certain property presumably on the basis that the Tamil Nadu Act 40 of 1971 does not come into play and the defendant by way of defence raises the plea that the suit land is covered by that Act and therefore he is entitled to the benefits of the said Act, the Court cannot dismiss the suit merely on the basis of the defence unless the court finds the defence put forward has been prima facie established. However, the learned Judge in that case directed a decree for possession to be passed subject to the rights of the defendant under the Act. It is in the light of the said decision the lower appellate court had passed a decree for possession in this case.
8. Thangavelu Naicker v. Muthukumara Chettiar : (1979)2MLJ369 was a case where the plaintiff came forward with a suit for injunction asserting that he is an agriculturist in possession of Kudiyiruppu and as such his possession should be protected by the issue of an injunction. Such a suit was rightly held to be barred by S. 23 of the Act as the plaintiff himself seeks a decision from the civil court that he is an agriculturist is possession of Kudiyiruppu. On the facts of the respective cases, the said two decisions have to be taken as rightly decided and there is no conflict at all between them as both of them lay down that the civil court's jurisdiction is ousted by S.23 of the Act in respect of disputes coming under S. 4 of the Act. However, we are of the view that the direction given by N. S. Ramaswami J. in Ganesan v. Madurai Achari, (1978) 91 MLW 6 to grant a decree for possession to the plaintiff subject to the defendant's rights under the Act has no legal basis. Such a direction cannot be validly granted, for, there is no provision in the Tamil Nadu Act 40 of 1971 similar to S. 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act 19 69 or S. 3 of the Tamil Nadu Cultivating Tenants Protection Act 1955, wherein it is stated that notwithstanding any decree of court, the tenant cannot be evicted from the premises except in accordance with the provisions of the relative Acts. In the absence of any such provision in the Act, there is no method or manner by which the defendant could approach the authorised officer to get over the civil court's decree for possession and as the decree passed by the civil court can immediately be put into execution he will be evicted from the Kudiyiruppu notwithstanding his rights under the Act. Further, such a decree for possession will be inconsistent with or defeat the provisions of the Act which is intended to confer certain benefit on persons occupying Kudiyiruppu.
9. We are, therefore, of the view that the lower appellate Court is in error in passing a decree for possession against the defendant which is capable of being executed straightway without reference to the provisions of the Act. Such a direction is also inconsistent with the findings rendered by the trial Court and affirmed by the lower appellate court that the defendant is entitled to the benefits of the Act. Having held that the defendant is entitled to the benefits of the Act, if the civil court were to pass a decree for possession, that would be completely defeating the provisions of the said Act. In this view of the matter, we set aside the decision of the lower appellate Court and restore the decision of the trial Court. It is however, made clear that the plaintiff, if so advised, can approach the authorities concerned under the Act for any relief as against the defendant under the provisions of the Act.
10. In the result, the second appeal is allowed. But there will be no order as to costs.
11. Appeal allowed.