K. Veeraswami, J.
1. This appeal must succeed on the short ground of jurisdiction. Before dealing with it, the material facts may be noticed. The appellant was let into possession by the respondents into an extent of 54 cents of dry land under an agricultural tenancy. The respondents sued in Original Suit No. 244 of 1951 on the file of the Court of the District Munsif at Mayuram in ejectment, which ended in a compromise decree, dated 17th April, 1952. This decree provided that the appellant should vacate and deliver vacant possession after five years, that is, on 17th April, 1957. The respondents filed on 13th December, 1961 the execution petition out of which this appeal arises. Execution of the compromise decree was resisted on the grounds (i) the appellant was a cultivating tenant (ii) he was entitled to protection under the provisions of the Kudiyiruppu Act and (iii) the petition was barred by limitation. The executing Court held on the first point against the appellant, or the second point it found that he was entitled to protection in respect of only seven cents of land and on the third the petition was barred by limitation. The execution petition was therefore dismissed. On appeal by the respondents, the lower appellate Court disagreed with the trial Court and found that during the absence of the appellant during a period of two years, his sons were not proved to have cultivated the land and that in view of this the appellant had ceased to cultivate the land for two years within the meaning of Section 3(2)(b) of the Madras Cultivating Tenants Protection Act, 1955. On the Second point, the lower appellate Court concurred with the finding of the executing Court, but, on the last point, the lower appellate Court again disagreed with the Court below it and held that the execution petition was not barred. On that view, the lower appellate Court ordered eviction of the appellant from the land except in respect of seven cents.
2. Before this Court, Mr. K.S. Naidu, learned Counsel for the appellant has not canvassed the view of the lower Court on limitation, but has confined his argument to three points (i) the general trend of the evidence for the appellant .established that his sons did as a matter of fact cultivate during his absence of two years, (ii) even assuming that this was not so there could be no question of automatic eviction and the respondents should establish that the appellant had evinced an intention to abandon cultivation altogether and (iii) in any case, even on the assumption that the appellant came within the purview of Section 3(2)(b), the remedy of the respondents lay with the Revenue Divisional Officer and the civil Court will have no jurisdiction to evict the appellant by execution of the decree.
3. The first point of Mr. K.S. Naidu is one of fact and the factual finding in respect of it cannot be disturbed in Second Appeal. Apart from that, on a perusal of the relative evidence for the appellant, I am not satisfied that its appreciation by the lower appellate Court suffered from any misdirection, or misappreciation. On the second point the appellant appears, however, to be well-founded. Sub-section (1) of Section 3 affords protection to cultivating tenants from eviction at the instance of a landlord notwithstanding a decree or order of a Court, But this protection is subject to the provisions of Sub-section (2) which details circumstances in which a cultivating tenant may not be entitled to protection from eviction, but may be exposed to liability of eviction. Clause (b), among other things, says that a cultivating tenant who has altogether ceased to cultivate the land will riot be entitled to the benefit of Sub-section (1). Clearly this expression has altogether ceased to cultivate the land has reference not merely to the physical act of stopping Cultivation but to an intention never to revert to cultivation on the land. This intention has to be gathered from the facts and circumstances in each case including of course the fact of actual cessation of cultivation over a particular period or more. Kailasam, J., in Civil Revision Petitions Nos. 2220 to 2231 of 19-59 has expressed a similar view as to the effect of those words in Section 3(2)(b) and Venkatadri, J. has concurred with it in Civil Revision Petition No. 1034 of 1961, Dharmayya Udayar v. Mohammed Tunas Rowther C.R.P. No. 1034 of 1961. With respect, I agree that this is the correct view to take.
4. The lower appellate Court observed that Section 3(2)(b) was satisfied because the tenant had admittedly ceased to cultivate 'the' land for two years and had not substantiated by proof that during his absence during that period the land was subject to any cultivation by any members of his family. This appears to be a misdirection on its part as to the scope and effect of Section 3(2)(b). The Court below failed to appreciate that what it has to look for is the intention on the part of the tenant to abandon cultivation for ever and never revert to it. In feet beyond quoting Section 3(2)(i) it does not give a precise finding that the appellant had as a matter of fact altogether ceased to cultivate the land in the sense this Court has interpreted that provision.
5. The matter does not stand there. The appellant's last point, also seems to my mind to be unanswerable, though of course it had not been taken in that precise form in the lower appellate Court. It is argued that the, effect of Sub-section (1) is to afford immunity from eviction, but subject to Sub-section (2). But this does not mean that if a cultivating tenant falls under any of the provisions of Sub-section (2), he ceased to be a cultivating tenant and that, therefore, eviction of a cultivating tenant who falls within the purview of Section 3(2)(b) can only be by an application to the Revenue Divisional Officer and not by execution of a decree. Mr. A Sundaram Iyer for the respondents seeks to meet the argument by contending that since the protection under Sub-section (1) is subject to Sub-section (2) and if a cultivating tenant falls within the purview of Sub-section (2) and,; therefore, is exposed to the liability of eviction, the embargo against eviction Under Sub-section (1) is lifted so that there is no bar to execution of the decree for eviction. Learned Counsel adds that the ground of eviction here is not that the appellant falls Within the purview of Section 3(2)(b), but there is a decree for eviction which can be executed. But the last aspect presented by Mr. Sundararn Iyer overlooks the scope of Sub-section (4)(a) of Section 3 which is confined for the character of the cultivating tenant and not to the ground of eviction.
6. Clause (a) of this Sub-section says that a landlord seeking to evict a cultivating tenant who falls within the purview of Sub-section (2) shall make an application to the Revenue Divisional Officer, whether or not there is an order or a decree of a Court for eviction of such a cultivating tenant. If a cultivating tenant answers the description of one under Sub-section (2), Sub-section (4) Clause (a) unmistakably directs that an application for eviction shall lie only to the Revenue Divisional Officer. I do not think that this Sub-clause is in conflict with Sub-sections (1) and (2) of Section 3. If a cultivating tenant falls within the purview of Sub-section (2), the only result is that the embargo against eviction is lifted, and it has no relation to the jurisdiction of forum for eviction, Sub-section (1) merely says that a cultivating tenant shall be protected from eviction notwithstanding a decree or order of a Court. Further I do not think that Sub-section (4)(a) by itself achieves the purpose of Sub-section (1) for Sub-section (4)(a) is confined to a particular category of cultivating tenants who fall within the purview of Sub-section (2) and will not by itself extend protection from eviction in respect of cultivating tenants who do not fall within the purview of Sub-section (2). Quite apart from Section 6, the effect of which does not fall to be considered in this case, a combined reading of Sub-sections (1), (2) and (4)(a) of Section 3 clearly leads to the result that if a cultivating tenant falls within the purview of Sub-section (2), the only remedy of the landlord notwithstanding a decree of Court is to apply to the Revenue Divisional Officer for eviction and not to resort to the civil Court for eviction by way of execution of a decree.
7. The appeal is allowed and the execution petition will stand dismissed. The parties will bear their own costs throughout.
8. On the view I have taken, the memorandum of objections is dismissed but with no costs.