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Thamirassu Vs. Kamalathammal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1984)1MLJ11
AppellantThamirassu
RespondentKamalathammal
Excerpt:
- .....and whether the paddy should be measured on waram basis as per the lease deed, the presiding officer, revenue court, karaikal came to the conclusion that the respondent should measure 28 kalams for the year 1973-74 and 70 kalams for the year 1974-75 and directed him to deposit the above-said quantity of paddy or its : value amounting to rs. 2,932-65 ps. within two months into the said court, failing which the respondent shall be evicted from the petition mentioned lands, and also directed that the respondent should report for the compliance of the performance of the said order on or before 27th january, 1982. aggrieved by the said order, this revision petition has been filed by the tenant under section 10 of the pondicherry cultivating tenants protection act, 1970, read with.....
Judgment:
ORDER

S. Swamikkannu, J.

1. Section 3(4) (a) and (5) of the Pondicherry Cultivating Tenants Protection Act, 1970 (IX of 1971 (hereinafter referred to as the Act), reads as follows:

3(4)(a) Every landlord seeking to evict a cultivating tenant falling under Sub-section (2) shall, whether or not there is an order or decree of a Court for the eviction of such cultivating tenant, make an application to the Revenue Court and such application shall bear a court-fee stamp of one rupee.

3 (4) (b) (i) On receipt of such application, the Revenue Court shall, after giving a reasonable opportunity to the landlord and the cultivating, tenant to make their representations, hold a summary inquiry into the matter and pass an order either allowing the application or dismissing it and in a case failing under Clause (a) or (b) or of Sub-section (2) in which the tenant had not availed of the provisions contained in Sub-section (3), the Revenue Court may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord : and the cultivating tenant for depositing the arrears of rent payable under this Act inclusive of such costs as he may direct.

(ii) If the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under Clause (b) of Sub-section (3) and if the cultivating tenant fails to deposit the sum as directed, the Revenue Court shall pass an order for eviction.

O.P. No. 55 of 1975 was filed by the landlady Kamalathammal against the tenant Thamirassu under the said section praying to-pass an order directing the tenant to pay the landlady the rental arrears claimed in the petition together with the cost of the petition and : in the event of his failing to do so, pass; an. order directing his eviction.

2. The case of landlady-petitioner before the Revenue Court, Karaikal was as follows : The tenant orally undertook to measure 70 kalams of paddy both in Kuruvai and Taladi. In case of natural calamities, the tenant undertook to measure the paddy on waram basis. The lands were originally leased out to the respondent (tenant) by the husband of the petitioner and after his demise, the respondent was measuring paddy to the petitioner since she is the only legal heir of her husband. For the year 1973-74, the respondent did not invite the petitioner for harvest and he measured only 48 kalams of paddy leaving 28 kalams of paddy as arrears and for the year 1974-75, the respondent conducted harvest and carried away the entire paddy, without paying anything to the petitioner. In the aggregate, the respondent has to measure 98 kalams of paddy for 1973-74 and 1974-75. The non-payment is wilful and wanton. The respondent has conducted harvest of bumper crops. When the petitioner asked for the payment of rent, the respondent told her that he would consider the same. The petitioner therefore prayed for the eviction of the respondent tenant.

3. On the other hand, in his counter, the respondent had inter alia contended that he did not undertake orally to measure 70 kalams of paddy both in Kuruvai and Thaladi. He is cultivating the lands on waram basis for the past 25 years. According to the lease agreement, the respondent informed about the harvest in the year 1973-74, and Thiru Surya-narayana Iyer, the petitioner's brother-in-law was present there both for Kuruvai and Thaladi. He took 2/3rd share due to the petitioner from the threshing floor itself and therefore the allegation of arrears for 28 kalams of paddy is false. For the year 1974-75, Thiru Vaitha Iyer and Ramu Iyer were present at the time of Kuruvai harvest on behalf of the petitioner. 28 kalams of kuruvai paddy representing 2|3 share of the petitioner were measured to the Marketing Society, Nedunagadu in the name of the petitioner. She has collected the amount. For the Thaladi crops, the Kariasthar of the sister of the petitioner was present there on her behalf and took 24 kalams of paddy being 2|3 share due to the petitioner, measured them to Balakrishna Nadar Mill and collected the amount. Therefore, the allegation of nonpayment for the year 1974-75 towards paddy is false. She requested the respondent to surrender the lands to her but the respondent turned down her request. Consequently, the petitioner, aggrieved by this, filed this false petition, and therefore, the petition is liable to be dismissed with costs.

4. On behalf of the landlady, P.W. 1 Balasubramaniam was examined. Exhibit P-1 was marked on the side of the petitioner-landlady. The tenant, revision petitioner herein examined himself as R.W. 1 and also examined R.W. 2 Marisamy, R.W. 3 Mudiap-pan, R.W. 4 Irudayasamy and R.W. 5 Deivanathan. No exhibits were filed on behalf of the tenant.

5. On the point whether the respondent is in arrears of 28 kalams of paddy for the year 1973-74 and 70 kalams of paddy for the year 1974-75 and whether the paddy should be measured on waram basis as per the lease deed, the Presiding Officer, Revenue Court, Karaikal came to the conclusion that the respondent should measure 28 kalams for the year 1973-74 and 70 kalams for the year 1974-75 and directed him to deposit the above-said quantity of paddy or its : value amounting to Rs. 2,932-65 ps. within two months into the said Court, failing which the respondent shall be evicted from the petition mentioned lands, and also directed that the respondent should report for the compliance of the performance of the said order on or before 27th January, 1982. Aggrieved by the said order, this revision petition has been filed by the tenant under Section 10 of the Pondicherry Cultivating Tenants Protection Act, 1970, read with Section 115 of the Code of Civil Procedure, inter alia contending that the order passed by the learned Presiding Officer of the Revenue Court, Karaikal is illegal, against law, weight of evidence and probabilities of the case.

6. It is contended by Mr. R. Thirugnanam on behalf of the revision petitioner that the Revenue Court has not given a definite finding regarding the nature of the relationship between the landlord and the tenant with respect of the payment of rent, whether it was on waram basis or as per the agreement, and the said failure to give such a finding vitiates the entire order.

7. It is relevant in this connection to note that no document evidencing the lease agreement or any harvest account was produced by ,the tenant, revision petitioner herein, before the lower Court to show that he measured paddy on waram basis. The witnesses : had deposed that for the years 1973-74 and 1974-75, paddy was measured on waram basis. But they have failed to speak about the paddy realised for each year. They also failed to prove the quantity of paddy towards the share of the landlady for the year 1973-74 on waram basis. Though the tenant, revision petition herein, filed I.A. No. 54 of 1980 for issuing summons to the accountant of Balakrishna Nadar Rice Mill to examine him as a witness, the summons was issued and the witness : was present in the Revenue Court twise, but the tenant failed to avail of the opportunity to examine the said witness on his side. In these circumstances, the Revenue Court held that the tenant should measure paddy as aforesaid or deposit Rs. 2,932-65 p. within two months into that Court, and in default to comply with the same, he shall be evicted from the petition mentioned lands. A perusal of the order of the Revenue Court, Karaikal shows that (the Revenue Court had taken all these) into consideration for arriving at the above said conclusion, and so the said conclusion with respect to the quantum of paddy to be measured to the landlady cannot be set aside.

8. The next point that is urged on behalf of the tenant is that the presiding Officer of the Revenue Court ought to have passed only an order with respect to the quantum of grain to be measured by the tenant and that there ought not to have been any further direction to the effect that the failure on the part of the tenant to measure the said quantum of grain or payment of sum equivalent to the same would result in the eviction of the tenant. In this regard, reliance was placed on the relevant provision of the Tamil Nadu Act, namely, Section 3(4) (a) and (b) of the Tamil Nadu Cultivating Tenants Protection Act (XXV of 1955) by the learned Counsel for the revision petitioner herein. He also referred to the decision reported in Chinnamarkathian (alias) Muthu Gounder and another v. Ayyavoo (alias) Periana Gounder and Ors. : [1982]2SCR146 , and relies on the observation in paragraphs 15 and 16 at page 143 which is as follows:

15. as analysed, the scheme of Sub-section (4) (b) of 8.3 requires the Revenue Divisional Officer to determine arrears, ascertain the exact amount payable by the tenant, fix the time for payment after taking into consideration the relevant circumstances of the landlord and the cultivating tenant and then stop there. There is no power in the Revenue Divisional Officer at that stage to pass on order for evicton.

16. If the tenant deposits the amount or pays up the rent and repairs the default within the time fixed by the Revenue Divisional Officer, on an application of the tenant pointing out this fact, the original application of the landlord for eviction would have to be dismissed. If on the other hand the landlord points out to the Revenue Divisional Officer that the cultivating tenant has failed to comply with the order made by the Court and if (,?) after notice to the tenant and in the absence of a request for extension of time which again may be judicially examined, the default becomes wilful or contumatious. It is at that stage and at that stage alone that the Revenue Divisional Officer enjoys; jurisdiction. Jurisdiction improperly exercised at. an earlier stage would render the order without jurisdiction. Surprisingly the High, Court reached the same conclusion but failed to follow it.

9. Referring to the above observation of the Supreme Court the learned Counsel for the revision petitioner Thiru R. Thirugnanam points out that the Revenue Court went wrong-in giving a direction that the failure to deposit the paddy or its value within two months will result in the tenant being evicted from the petition mentioned land since this is against the decision of the Supreme Court cited supra. He also points out that Section 3(4) (a). and (b) of the Pondicherry Act is similar to that Section 3(4) (a) and (b) of the Tamil Nadu Act. The learned Counsel for the respondent-landlord concedes this position of law and' submits that there is error in the order pronounced by the Presiding Officer of the Revenue Court, in that, there cannot be a direction by the said Presiding Officer in the same order and that this aspect of finding is against the ratio decidendi of the Supreme Court embedded in the decision referred to above. He also concedes that this portion of the order of the Presiding Officer of the Revenue Court is liable to be set aside and the matter has to be remitted back to his file for further proceedings by granting two more months from today for depositing the value of the paddy, namely, Rs. 2,932-65 p. as fixed by him.

10. In the result the civil revision petition is allowed in part and the matter is remitted back to the file of the Presiding Officer of the Revenue Court, Karaikal, for further proceedings in the light of the observations contained in this order. In the circumstances, there is, no order as to costs.


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