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Eranthankandy Ponathil Sankaran Vs. Chirukandoth Mundayodan Narayani Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1975)2MLJ131
AppellantEranthankandy Ponathil Sankaran
RespondentChirukandoth Mundayodan Narayani Ammal and ors.
Cases ReferredDhulabhai v. State of Madhya Pradesh
Excerpt:
- .....called upon the defendant to vacate the buildings, the defendant applied to the deputy tahsildar (land reforms), mahe, under the mahe land reforms act for registration of himself as a kudikidappukaran , but the deputy tahsildar dismissed his claim, whereupon the defendant preferred a revision petition to the revenue divisional officer, mahe, who dismissed it on the ground that the defendant was not a kudikidappukaran as defined in the land reforms act. the plaintiffs issued a registered notice, dated 5th november, 1970, calling upon the defendant to vacate, but the defendant failed to comply with, the demand. the plaintiffs, therefore, instituted the suit for recovery of the schedule property and of rent arrears amounting to rs. 136 with, costs.2. the defendant, in his answer, while.....
Judgment:

S. Maharajan, J.

1. The defendant has preferred this second appeal attacking the judgment of the third Additional District Judge, Pondicherry, in A.S. No. 97 of 1971, whereby he allowed the plaintiff's appeal against the judgment of the District Munsif of Mahe, who dismissed the suit filed by the plaintiffs for recovery of possession of the suit house from the defendant as well as for arrears of rent due by him as tenant. According to the plaintiffs, the suit house and the paramba on which it stands belong to the plaintiffs on kanam--kuzhikanam right, and the house was let out to the defendant on a monthly rent of Rs. 3 under a registered lease deed, dated 7th April, 1955. Subsequently, under an oral agreement dated 7th April, 1957, the lease was renewed for a further period of six months on a monthly rent of Rs. 4. After the expiry of the lease, the defendant was holding over without paying arrears of rent since 7th May, 1968. When the plaintiffs called upon the defendant to vacate the buildings, the defendant applied to the Deputy Tahsildar (Land Reforms), Mahe, under the Mahe Land Reforms Act for registration of himself as a kudikidappukaran , but the Deputy Tahsildar dismissed his claim, whereupon the defendant preferred a revision petition to the Revenue Divisional Officer, Mahe, who dismissed it on the ground that the defendant was not a kudikidappukaran as defined in the Land Reforms Act. The plaintiffs issued a registered notice, dated 5th November, 1970, calling upon the defendant to vacate, but the defendant failed to comply with, the demand. The plaintiffs, therefore, instituted the suit for recovery of the Schedule property and of rent arrears amounting to Rs. 136 with, costs.

2. The defendant, in his answer, while admitting that he was a tenant liable to pay monthly rent of Rs. 4, contended that he had paid rent upto November, 1969, and that as he had thatched the house in 1970 at a cost of Rs. 50, he was entitled to set off the same towards the arrears of rent. He also contended that he had thatched the house at his own cost in 1971 and spent Rs. 66.33 on that account, and that this amount was also liable to be set off against the rent payable by him. He further contended that neither he nor his wife was possessed of any property or land to build a homestead upon, that he is a kudikidappukaran within the Mahe Land Reforms Act and that he is not liable to be evicted from the house.

3. The learned District Munsif, Mahe, found that the order of the Deputy Tahsildar, dismissing the petition filed by the defendant on the ground that he is not a kudikidappukaran within the Mahe Land Reforms Act was not binding upon the civil Court. He, therefore, proceeded ;to discuss at length the evidence adduced by the parties and held that the defendant was not possessed of any landed property where he could erect his homestead and that consequently he is a kudikidappukaran within, the Mahe Land Reforms Act and that he is not liable to be evicted from the suit house. He further held that inasmuch as the plaintiffs were liable to thatch the house every year at their own cost and it was admitted by the plaintiffs that the defendant had thatched the house in 1970 and 1971, at his own cost, he was entitled to set off' the cost of thatching towards arrears of rent due and if the set off were allowed, the defendant would not be liable to pay any amount by way of arrears of rent. In this view, the suit was dismissed by the trial Court with costs.

4. Upon an appeal preferred by the plaintiffs, the learned Additional District Judge, Pondicherry, discussed the relevant provisions of the Mahe Land Reforms Act, and held that the question whether the defendant is a kudikidappukaran or not was exclusively within the jurisdiction of the Deputy Tahsildar, that his decision that he was not is binding upon the civil Court and that it was incompetent on the part of the civil Court to ignore the finding of the prescribed authority and hold upon independent evidence adduced before it that the defendant is a kudikidappukaran entitled to protection under the Mahe Land Reforms Act. The first appellate Court further held that the tenancy of the defendant had been properly terminated by the notice to quit issued by the plaintiffs and that consequently the plaintiffs were entitled to the relief of eviction prayed for. As the plaintiffs did not press the claim for arrears of rent, the first appellate Court, after reversing the judgment and decree of the trial Court, granted a decree in favour of the plaintiffs directing eviction of the defendant. The first appellate Court directed the defendant to pay the plaintiffs' costs.

5. The main points that arise for determination in this second appeal are:

1. Whether the Deputy Tahsildar and the Revenue Divisional Officer mentioned in the Mahe Land Reforms Act have exclusive jurisdiction to decide whether the defendant is a kudikidappukaran entitled to the benefits of the Act ?

2. Whether the finding of the prescribed authority that the defendant is not a kudikidappukaran is binding on the civil Court ?

3. If not, whether upon the evidence on record, the defendant is a kudikidappukaran entitled to protection under the Act from eviction ?

Points Nos. 1 to 3.--The Mahe Land Reforms Act, 1968, is largely modelled upon the Kerala Land Reforms Act, 1963. Most of the sections in the Mahe Land Reforms Act reproduce word for word the language of the Kerala Land Reforms Act, 1963, with certain minor variations to suit local conditions. The Kerala Land Reforms Act, 1963, was drastically amended from time to time in the light of judicial pronouncements (Vide Act XII of 1966, Act IX of 1967 Act XXXV of 1969, Act XXV of 1971 and Act XVII of 1972). On the other hand, the Mahe Land Reforms Act, 1968, has remained unamended upto ' date with the result that the several loopholes therein remain to be plugged yet. It purports to be a comprehensive legislation relating to land reforms for the Mahe region of the Union Territory of Pondicherry. Its main object is to confer upon cultivating tenants such benefits as fixity of tenure, and fair rent, abolition of intermediaries and distribution to the landless of the lands held in excess of the prescribed ceiling. Though a kudi-kidappukaran is not necessarily an agricultural labourer, he is also conferred certain benefits under the Act.

6. Section 2 (24) of the Mahe Land Reforms Act defines ' Kudikidappu-karan ' to mean,

a person who has neither a homestead nor any land exceeding three cents in extent, either as owner or as tenant in possession, on which he could erect a homestead, and:

(i) who has been permitted, with or without an obligation to pay rent, by a person in lawful possession of any land, to have the use and occupation of a portion of such land for the purpose of erecting a homestead ; or

(ii) who has been permitted by a person in lawful possession of any land, to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land ;

and ' Kudikidappu ' means the land and the homestead or the hut so permitted to be erected or occupied together with the assessment attached thereto:

Explanation I to this definition says:

For the purposes of this clause, ' hut' means any dwelling house which was constructed at a cost not exceeding five hundred rupees, or could have, at the time of construction, yielded a monthly rent not exceeding five rupees.Explanation II says:Any person who was in occupation of a kudikidappu on the 28th April, 1962, and who continued to be in such occupation at the commencement of this Act, shall be deemed to be in. occupation, of such kudikidappu with permission as required under this clause.

Section 83 of the Act provides:

(1) No kudikidappukaran shall be liable to be evicted from his kudikidappu except on the following grounds namely:

(i) that he has alienated his right of kudikidappu to a person other than:

(a) a member, of his family, or

(b) a person who has no other homestead or any land exceeding three cents in extent, either as owner or as tenant in possession, on which he could erect a homestead,

(ii) that he has rented or leased out his kudikidappu to another person,

(iii) that he has ceased to reside in the kudikidappu continuously for a period of two years, or

(iv) that he has another kudikidappu or has obtained ownership and possession of land which is fit for erecting a homestead.

Section 84 prescribes,

(1) All arrears of rent, if any, payable, by a kudikidappukaran on the date of the commencement : of this Act, whether the same be payable under any law, custom or contract or under a decree or order of Court, shall be deemed to be fully discharged if he pays one year's rent or the actual amount in arrears, whichever is less.

(2) On and after the commencement of this Act, notwithstanding any contract, decree or order of Court, a kudikidappukaran shall not be required to pay more than six rupees yearly as rent in respect of his kudikidappu:

There is also a provision that where the owner of the land in which there is a kudikidappu considers that the kudikidappu is so located as to cause inconvenience to him, he may require the kudikidappukaran to shift to another part of the land. Under Section 85, if the kudikidappukaran does not comply with the requisition to shift to a new site, the person in possession of the land or the owner may institute a suit against him for the purpose in the civil Court. Section 88 : provides that the Government shall cause a register of kudikidappukarans to be prepared and maintained in each village, and the register shall show the description; and the location of the kudikidappu and its extent, the name of the landowner and of the person in possession of the land in which the kudikidappu is situate and the name and address of the kudikidappu-karan and other particulars. Under Section 88 (3), the register shall be prepared and maintained by such officer and in such manner as may be prescribed. The prescribed officer in this case is the Deputy Tahsildar, Mahe. Section 88 (4) says,

The prescribed Officer shall, before the preparation of the register, publish a notice in the village inviting applications from kudikidappukars for registration, to be presented before such date as may be specified in the notice.

Under Section 88 (5), the prescribed Officer shall, after enquiry and after giving an opportunity to the landowner or other person in possession of the land to be heard, register the kudikidappukaran or reject the application. Section 88 (7) says:

Any gazetted officer authorised by the Government in this behalf, may, either of his own motion or on an application by any person aggrieved by the registration of a kudikidappukaran under Sub-section (5) or the rejection of an application, under that sub-section, call for the record of any proceeding which has been taken by the prescribed officer under this section and may make such enquiry or cause such enquiry to be made and may pass such orders thereon, as he thinks fit :

Section 90 of the Act says:

Where, in any suit or other proceeding for the eviction of a cultivating tenant, a holder of a kudiyiruppu or a kudikidappukaran, from his holding kudiyiruppu or kudikidappu, as the case may be, whether pending at the commencement of this Act or instituted after such commencement, the cultivating tenant, or the holder of a kudiyiruppu or the kudikidappukaran, makes a representation to the Court in which such suit or other proceeding is pending or instituted that no record of rights in respect of the holding or register of kudikidappukaras in respect of the village in which the kudikidappu is situate, as the case may be, has been prepared, the Court shall not proceed with the suit or proceeding until the record of rights in respect of the holding or the register of kudikidappukarans, as the case may be, is prepared and made available to it and the Court shall also by order direct the officer specified under Sub-section (3) of Section 35, to prepare a record of rights in respect of the holding, or, as the case may be, a register of kudikidappukarans and to file the same in Court, and such officer shall cause the same to be prepared in the manner prescribed.

It may be noted that there is nothing in Section 90, which says that the Court is bound to accept the correctness of the entries in the register of kudikidappukars, which is to be filed by the prescribed officer. Section 134 of the Act says as follows:

Nor order of the Land Tribunal or the Land Board under this Act shall be called in question in any Court, except as provided in this Act.

The head-note to this section is entitled, ' Bar of jurisdiction of Courts '. It is significant that the order of the Deputy Tahsildar or the Revenue Divisional Officer as to whether a person is a kudikidappukar or not is omitted from Section 134 which is the only section in the Act which bars the jurisdiction of civil Courts. In other words, though the order of the Land Tribunal or the Land Board is expressly given immunity from judicial scrutiny, by the ordinary civil Court, no such immunity is given to the order of the Deputy Tahsildar or the Revenue Divisional Officer relating to the exclusion or the inclusion of a person from the register of kudikidappukars. What then was the intention of the Legislature in omitting reference to such orders from Section 134 of the Act In Rule 57 of the Rules framed under the Mahe Land Reforms Act, Clause (1) says that the register of kudikidappukars shall be prepared by an officer not below the rank of a Deputy Tahsildar and shall be maintained in the offices of the Deputy Tahsildar and the village officer, and the Deputy Tahsildar shall, wherever necessary, amend the entries in the register maintained in the Deputy Tahsildar's office and communicate such amendments to the Village Officer for carrying them out in the copy of the register in the village. Clause (2) of Rule 57 says that the entries in the register shall be admissible in evidence before any Court or Tribunal. It is noteworthy that this rule does not say that the entries in the register shall be taken by the civil Court to be true and shall not be . called in question by the civil Court. All that Clause (2) of Rule 57 says is that the entries in the register shall be admissible in evidence before any Court or tribunal, which would mean that the entries in the register of kudikidappukars will have no more than evidentiary value, and can be accepted or rejected by a civil Court in the light of other relevant evidence. A perusal of the different provisions of the Act would disclose another reason why the Legislature while giving immunity from judicial scrutiny to the orders of the Land Board or the Land Tribunal, remained from doing so in respect of the orders of the Deputy Tahsildar and the Revenue Divisional Officer in respect of kudikidappukars. The Land Board and the Land Tribunal are given under Section 111 of the Act all the trappings of a civil Court. Under Section 109, the Land Tribunal shall consist of a single member who shall be a judicial officer of the rank of judge de paix. Under Section 110, the Land Board shall consist of a single member, who shall be the Secretary to Government, Revenue and Development Department, Pondicherry, or such other officer of an appropriate rank, as the Government may specify for the purpose. Under Section 112 of the Act, any person aggrieved by the orders of the Land Tribunal may appeal against such order to the President, Court of First instance, Pondicherry. Under Section 113, any person aggrieved by any final order passed in appeal by the President, Court of first Instance, or any final order passed by the Lard Board may prefer a petition to the High Court against the order on the ground that either body has decided erroneously or failed to decide any question of law. No such-self-contained hierarchy of Tribunals has been provided in respect of the orders of the officers prescribed by the Act for the maintenance of the register of kudikidappukars. The question whether a person is a kudikidappukaran is a very complicated legal question and can be decided satisfactorily only by a legally trained Tribunal is the light of the complicated definition of 'kudikidappukaran ' contained in the Act. The Act shows that no jurisdiction was given to the Land Tribunal or the Land Board to decide whether a person is a kudikidappukaran or not. It is in these circumstances that the Legislature must have deliberately omitted from Section 134 any reference to the order of the Deputy Tahsildar or the Revenue Divisional Officer relating to the preparation of the register of kudikidappukars and refrained from conferring upon such orders immunity from scrutiny by the ordinary civil Courts, which orders of the Land Tribunal or the Land Board under the Act are expressed to enjoy.

7. Reference may be made in this connection to the subsequent amendments made by the Kerala Legislature to the corresponding Section 125 in the Kerala Land Reforms Act. That section, as amended by Act XXXV of 1969 and Act XVII of 1972, reads as follows:

125. Bar of jurisdiction of civil Courts:

(1) No civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government.

(2) No order of the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government made under this Act shall be questioned in any civil Court, except as provided in this Act.

(3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with relevant records for the decision of that question only.

(4) The Land Tribunal shall decide the question referred to it under Sub-section (3) and return the records together with its decision to the civil Court.

(5) The Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question, referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil Court.

These amendments made by the Kerala Legislature were consequential upon the grant of certain powers to the Land Board and the Land Tribunal even in respect of kudikidappukars. That is why the Kerala Legislature has, under Section 125, conferred immunity from judicial scrutiny, not only upon the orders of the Land Tribunal or the Land Board, but also upon the orders of an officer of the Government made under the Act. Under the amended Section 29 (8) of the Kerala Land Reforms Act, the record of rights prepared under that section is made ' admissible in evidence before any Court or tribunal and every entry in any record of rights which has become final shall until the contrary is proved be presumed to be correct.' it is true thus found that even under the amended Kerala Land Reforms Act, the entry in the record of rights prepared by the Tahsildar or the Revenue Divisional Officer is not binding upon the Civil Court, but shall be presumed by the civil Court to be correct until the contrary is proved. An examination of the corresponding provisions of the Kerala Land Reforms Act and the Mahe Land Reforms Act reveals that it was never the intention of the Legislature that the orders of the Deputy Tahsildar and the Revenue Divisional Officer in respect of the status of a person as a kudikidappukaran should be binding on the ordinary civil Court. In coming to this conclusion, I have been guided by the principles laid down by the Supreme Court in Srinivasa v. State of Andhra Pradesh : [1970]2SCR714 :

The general principle on which the jurisdiction of civil Courts can successfully be excluded in respect of decisions by special Tribunals is well-settled. The difficulty usually arises in its application to given cases. As observed by the Privy Council in Secretary of Stale v. Mask and Company , the exclusion of the jurisdiction of the civil Courts must either be explicitly expressed or clearly implied. Further even if the jurisdiction is so excluded the civil Courts have jurisdiction to examine into the cases where the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. It is unnecessary to refer to other cases dealing with this question. We need only refer to the recent decision of this Court in Dhulabhai v. State of Madhya Pradesh : [1968]3SCR662 , in which after an exhaustive discussion of the case law the legal position was summarised by the Court speaking through Hidayatullah, C.J., as follows:

(1) Where the statute gives a finality to the orders of the special tribunal the civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied; with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court.

Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the enquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not.

As I have already pointed out, Section 125 of the Mahe Land Reforms Act, while giving a finality to the orders of the Land Tribunal and the Land Board and expressly excluding the civil Court's jurisdiction in that behalf, refrains from giving such a finality to the orders of the Deputy Tahsildar and the Revenue Divisional Officer in respect of the claim of any person as a kudikidappukaran entitled to the benefits of the Act. The examination of the remedies and the scheme of the Act would also show that whereas the Land Tribunal and the Land Board have all the functions of a judicial tribunal and are governed by the Civil Procedure Code, and their orders are amenable to appeal to the Court of First Instance, Pondicherry, and to revision by the High Court, the proceedings of the Deputy Tahsildar and the Revenue Divisional Officer in respect of the preparation of the register of kudikidappukars are purely administrative in character and, therefore, no judicial remedies have been provided for in respect of their orders. The utmost that can be said about the entries made by the Deputy Tahsildar and the Revenue Divisional Officer in the register of kudikidappukars is that they may enjoy an evidentiary value which the civil Court may accept or reject in the light of the independent evidence adduced by the parties before it. I would, therefore, while disagreeing with the first appellate Court and agreeing with the trial Court, hold that there is nothing in the Mahe Land Reforms Act which bars the jurisdiction of a civil Court from investigating whether the defendant is a kudikidappukaran or not, notwithstanding the fact that the Deputy Tahsildar and the Revenue Divisional Officer have rejected the defendant's claim to be a kudikidappukaran.

8. The next question arises whether the defendant is a kudikidappukaran within the meaning of the Act. The only ground upon which the plaintiffs contended that the defendant is not a kudikidappukaran is that he owns land exceeding three cents in extent, on which he could erect a homestead. According to the plaintiffs, the defendant is entitled to some share in Manikampoyil Paramba.. The learned District Munsif has accepted the oral evidence of the defendant that Manikampoyil Paramba belonged to the Tavazhi of the defendant's father, who died about 26 years prior to his giving evidence, that after his death Ramunni, who is the present Karanavan, is managing the Manikampoyil Paramba,. and that Manikampoyil Paramba is used for some religious rites on particular days of a year. The learned District Munsif has also accepted the evidence of D.W. 2, who is the present Karnavan of the Thavazhi, to the effect that after the death of the defendant's father, the defendant did not acquire any interest in the Manikampoyil Paramba, and that the defendant was not given any share therein. It is also the evidence of D.W. 2 that the property was not partitioned at all, because it belonged exclusively to the Tavazhi of the defendant's father. Exhibits X-1 to X-4 show that D.W. 2, Manikampoyil Ramunni, has been paying land revenue for the property, on behalf of himself and his sisters. D.W. 2 also denied that D.W. 1, the defendant, has any share or interest in the property. P.W. 1, the plaintiff's only witness, admitted in cross examination that there is a temple in the Manikampoyil Paramba, that it is an ancient temple, and that he did not know whether the temple belongs to Mamkampoyil Tavazhi. He also admitted that Devaki and Ramunni were paying the land revenue for Manikampoyil Tavazhi after the death of Ambootty, the father of the defendant. Upon this evidence, the learned District Munsif rightly came to the conclusion that Manikampoyil Paramba does not belong to the defendant and that the Plaintiff had failed to prove that the defendant is possessed of any other landed property on which he could erect his homestead. In these circumstances, he rightly came to the conclusion that the defendant is a kudiddappukaran within the meaning of the Act, and, is, therefore, not liable to be evicted. A perusal of Exhibit A-4, the order of the Deputy Tahsildar shows that it is the result of a summary and superficial enquiry and has little regard for the facts established and the admissions made before the trial Court. I, therefore, accept the findings of the trial Court and answer these points in favour of the defendant.

9. In the result, the judgment and decree of the first appellate Court are set aside, and those of the trial Court restored, and the appeal allowed with costs throughout.


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