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Sathu Konar Vs. Duraisami - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1967)2MLJ473
AppellantSathu Konar
RespondentDuraisami
Cases ReferredRama Iyer v. Sundaresa
Excerpt:
- - purposes of ascertainment and receipt of his share of the produce, and as the petitioner failed to be present either by himself or by his authorised representative at the time of such harvest he bad to undertake the harvest of the produce by himself. i have carefully considered the evidence let in this case and i am not satisfied that the tenant had proved and established such a legal relationship between himself and the petitioner either expressly or by necessary implication. in general the rule which applies 'is ei qui affirmat non ei qui negat incumbit probatio'.it is an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons......xxv of 1955. the landlord in his counter states that the respondent is not a tenant, much less a cultivating tenant, that he is running a tea shop in the village, and in any event the deposit is inadequate. the revenue court accepted the contentions of the tenant and allowed the petition. the tenant was also granted time to deposit the deficiency in the rent. as against this order, the revision petition is filed.2. mr. rangachariar appearing for the landlord invited my attention to exhibit b-l a varam letter executed by the father of the tenant. this relates to the fasli immediately prior to the fasli for which the respondent purported to deposit a certain amount, alleging that he is a direct tenant under the petitioner. it is not necessary to go into the question whether the quantum.....
Judgment:

T. Ramaprasada Rao, J.

1. This Civil Revision Petition raises the question as to how far interference in revision is possible under Section 115, Civil Procedure Code, read, with Section 6-B of Madras Act XXV of 1955 as amended, when the lower tribunals had to deal with jurisdictional facts and such tribunals have arrived at certain conclusions which appear to be incorrect. The landlord is the petitioner before me. The respondent claims to be his tenant. The respondent states that he called upon the landlord to be present at the harvest for. purposes of ascertainment and receipt of his share of the produce, and as the petitioner failed to be present either by himself or by his authorised representative at the time of such harvest he bad to undertake the harvest of the produce by himself. The tenant's further case is that he sold the paddy at Rs. 7 a kalam and deposited the value of the rent into Court and has filed this petition under Section 3(3)(a) of Act XXV of 1955. The landlord in his counter states that the respondent is not a tenant, much less a cultivating tenant, that he is running a tea shop in the village, and in any event the deposit is inadequate. The Revenue Court accepted the contentions of the tenant and allowed the petition. The tenant was also granted time to deposit the deficiency in the rent. As against this order, the revision petition is filed.

2. Mr. Rangachariar appearing for the landlord invited my attention to Exhibit B-l a varam letter executed by the father of the tenant. This relates to the fasli immediately prior to the fasli for which the respondent purported to deposit a certain amount, alleging that he is a direct tenant under the petitioner. It is not necessary to go into the question whether the quantum of rent deposited by the tenant is correct or not. During fasli 1371 and for prior years, it is the indisputable case of the parties that it was the father of the respondent before me who was the tenant and that the respondent, as son, was assisting his father in the actual cultivation of the land. This arrangement between the petitioner and the father of the respondent came to an end in fasli 1371. It is not clear as to why a fresh letter of attornment from the respondent or a fresh varam letter was not taken from the father for the subsequent faslis. It is not also the case of the tenant that he is continuing in occupation of the lands after the expiry of a tenancy agreement in his favour prior to that period. There is, therefore, nothing in writing to establish that there was the relationship of landlord and tenant between the petitioner and the respondent. I have carefully considered the evidence let in this case and I am not satisfied that the tenant had proved and established such a legal relationship between himself and the petitioner either expressly or by necessary implication. No doubt, the P. Ws. would say that they have seen the respondent cultivating the land for the last five years. Obviously such cultivation should be deemed to be on behalf of the father of the respondent who was admittedly the tenant for fasli 1371 and prior thereto. I am of the opinion that a mere collaborator or a person who renders assistance to a cultivating tenant as defined in Section 2 of the Madras Cultivating Tenants Protection Act, would not by himself, by reason of such collaboration or assistance become a cultivating tenant himself. It is not clear whether the father is continuing in possession of the land after the determination of the tenancy agreement. The respondent who alleges that he is a cultivating tenant should prove it by acceptable evidence. The following passage in Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation Ltd. L.R. (1942) A.C. 154, rendered by Viscount Maugham is apposite for purposes of this case,

I think the burden of proof in any particular case depends on the circumstances under which the claim arises. In general the rule which applies 'is ei qui affirmat non ei qui negat incumbit probatio'. It is an ancient rule founded on considerations of good sense and it should not be departed from without strong reasons.

3. The Supreme Court in Narayan v. Gopal : [1960]1SCR773 , has held that the burden of proof inter alia means that a party is required to prove an allegation before he could obtain judgment in his favour. Bearing the above principles in mind and having sifted the evidence adduced by the tenant-respondent, I do not find any clinching evidence on the side of the respondent to establish the jural relationship of landlord and tenant between the petitioner and the respondent. Proof of such relationship is essential so as to vest the jurisdiction in the Revenue Court to deal with a petition under the Madras Cultivating Tenants Protection Act. This is what is ordinarily and commonly termed as a jurisdictional fact. If, therefore, such a jurisdictional fact had not existed, the Revenue Court necessarily had no jurisdiction to entertain the application, see M.L. and B. Corporation v. Bhatnath : [1964]3SCR495 , Further the Supreme Court in Rama Iyer v. Sundaresa : [1966]3SCR474 , observed as follows:

The decision of the Subordinate Court on all questions of law and fact not touching its jurisdiction is final and, however, erroneous such a decision may be, it is not revisable under Sub-sections (a) and (b) of Section 115. On the other hand, if by an erroneous decision on a question of fact or law touching its jurisdiction e.g., on a preliminary fact upon the existence on which its jurisdiction depends, the subordinate Court assumes a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested, its decision is not final and is subject to review by the High Court in its revisional jurisdiction under Sub-sections (a) and (b) of Section 115. The question is on which side of the line the present case lies... To attract the jurisdiction of the Revenue Divisional Officer, there must be a dispute between a landlord and cultivating tenant. The existence of the relation of landlord and cultivating tenant between the contending parties is the essential condition for the assumption of jurisdiction by the Revenue Divisional Officer in all proceedings under the Act. The Tribunal can exercise its jurisdiction under the Act only if such relationship exists. If the jurisdiction of the Tribunal is challenged, it must enquire into the existence of the preliminary fact and decide if it has jurisdiction. But its decision on the existence of this preliminary fact is not final such a decision is subject to review by the High Court in its revisional jurisdiction under Section 6-B.

4. There also it was a case wherein the High Court was held to have power to enquire into the correctness of the decision of the Tribunal though in that case the respondent was held to be not a cultivating tenant of the appellant therein. The instant case is a converse case. The Tribunal finds that the respondent is a cultivating tenant. But on a careful scrutiny of the evidence, I am unable to accept this finding as it is not based on acceptable evidence. I therefore hold that the tenant is not a cultivating tenant within the meaning of the Act, and that there was no subsisting relationship of landlord and tenant between the petitioner and the respondent on the date when he initiated the proceedings under the Act. I therefore set aside the order of the Revenue Court and hold that there is no relationship of landlord and tenant between the petitioner and the respondent and that the respondent has no locus standi to apply under the provisions of the Madras Cultivating Tenants Protection Act. The revision petition is therefore allowed, but in the peculiar circumstances, there will be no order as to costs. The respondent is at liberty to withdraw the amount deposited by him in the Revenue Court.


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