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Siluvai Fernando, Power-of-attorney Agent of Savarimuthu Fernando Vs. Pancros Leon - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1958)1MLJ394
AppellantSiluvai Fernando, Power-of-attorney Agent of Savarimuthu Fernando
RespondentPancros Leon
Excerpt:
- .....of the two items of land in question, measuring in all ac. 1-35. the petitioner's case before the revenue divisional officer was that these lands were in the possession of the petitioner' wife. she was merely a trespasser. the petitioner filed o.s. no. 134 of 1955 against his wife for recovery of possession of the lands. he obtained a decree, and in execution of that decree he obtained delivery of possession of the lands on 20th july, 1956.3. on 3rd november, 1956, the respondent, who was the husband of the sister of the petitioner's wife, applied to the revenue divisional officer under section 4(5) of the act and prayed for restoration of possession. the respondent alleged that he had been dispossessed by the petitioner on 30th october, 1956.4. the revenue divisional officer held an.....
Judgment:

Rajagopalan, J.

1. This is an application under Section 6-B of Madras Act XXV of 1955 to revise the order of the Revenue Divisional Officer, Cheranmahadevi, dated 5th January, 1957.

2. It was common ground that the petitioner was the owner of the two items of land in question, measuring in all Ac. 1-35. The petitioner's case before the Revenue Divisional Officer was that these lands were in the possession of the petitioner' wife. She was merely a trespasser. The petitioner filed O.S. No. 134 of 1955 against his wife for recovery of possession of the lands. He obtained a decree, and in execution of that decree he obtained delivery of possession of the lands on 20th July, 1956.

3. On 3rd November, 1956, the respondent, who was the husband of the sister of the petitioner's wife, applied to the Revenue Divisional Officer under Section 4(5) of the Act and prayed for restoration of possession. The respondent alleged that he had been dispossessed by the petitioner on 30th October, 1956.

4. The Revenue Divisional Officer held an enquiry and passed an order, dated 5th January, 1957, directing that the respondent should be restored to possession of these two items of lands.

5. What the Revenue Divisional Officer had to decide was whether on the evidence on record the respondent was a cultivating tenant as defined by the Act. All that the respondent alleged in his application was that he executed a rent deed to the petitioner's wife. There was no allegation that the petitioner's wife, as lessor or otherwise, came within the definition of ' landlord ' in Section 2(e) of the Act. The Revenue Divisional Officer no doubt found that the respondent's case, that he had been cultivating the lands before the petitioner obtained delivery of possession, was true. But the Revenue Divisional Officer failed to consider and he certainly failed to decide who was the ' landlord ' and whether the respondent was a cultivating tenant. If there was only an agreement between the petitioner's wife and the respondent, and the petitioner's wile was not the landlord within the meaning of Section 2(e) of the Act, the question would arise whether the respondent was a cultivating tenant at all as defined by the Act. It was not disputed that the lands belonged to the petitioner. His title to the lands as against his wife was also established in O.S. No. 134 of 1955. The respondent never pleaded or proved any agreement, express or implied, as between him and the petitioner. In such circumstances he could not claim to be a cultivating tenant who held directly under the petitioner. If the landlord was the petitioner, and on that basis the respondent could not be the cultivating tenant, and if the petitioner's wife was not the landlord, any agreement with her would not make the respondent a cultivating tenant. The Revenue Divisional Officer had to consider, as I said and decide whether the respondent was a cultivating tenant, and that question was not considered or decided. That vitiates the order of the Revenue Divisional Officer.

6. I set aside the order of the Revenue Divisional Officer and remand the case for disposal afresh, after giving an opportunity to both sides to place such further evidence as is available to them.

7. I find that the petitioner was also remiss in not placing before ,the Revenue Divisional Officer a copy of the judgment. Learned Counsel for the petitioner stated that a copy of the delivery receipt was filed but even that was not marked as an exhibit. The petitioner's claim was that he took possession on 20th July, 1956, in execution of the decree. The respondent's case, as he put it forward, was that the dispossession was on 30th October, 1956. The question of dispossession would arise only if it is established that the respondent was a cultivating tenant. If that position is established, the Revenue Divisional Officer would have to go into the question, whether the respondent was dispossessed and if so on what date.

8. The petition is allowed. No order as to costs. The proceedings are remanded to the Revenue Divisional Officer for disposal afresh according to law.


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