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Ganesan Vs. K. Madurai Achari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenacy
CourtChennai High Court
Decided On
Reported in(1979)1MLJ29
AppellantGanesan
RespondentK. Madurai Achari and anr.
Cases ReferredMuniyandi v. Rajanagam Iyer
Excerpt:
- .....(3) thereof and it is similar to the definition contained in the tamil nadu cultivating tenants protection act, 1955, namely, that a person who cultivates agricultural land by the contribution of his town manual labour or of the manual labour of any member of his family.10. it is to be noted that the special jurisdiction of the authorised officer (apart from that under section 4) is to enquire into and pass orders on applications for eviction filed by any owner of a kudiyiruppu. the appeal to the collector also relates to the same matter. under this act, no other question is within the special jurisdiction of the authorised officer or the district collector. particularly the question whether any house-site is a 'kudiyiruppu' or not is certainly not within the special.....
Judgment:

N.S. Ramaswami, J.

1. The defendant in the two suit (O.S. Nos. 608 and 663 of 1974 on the file of the District Munsif's Court, Chingleput) has preferred these two second appeals. The question in both the cases is whether the defendant is entitled to the benefits of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership)(Act XL of 1971), hereinafter referred to as the Kudiyiruppu Ownership Act, and the Tamil Nadu Occupants of Kudiruppu (Protection from Eviction) Act (XXXVIII of 1961) hereinafter referred to as the Kudiruppu Protection Act, and whether the civil Court has jurisdiction to entertain the suits.

2. One Rajaram Naidu and others owned certain lands extending 2.89 acres of which the suit site (3 cents) is part. The defendant became a tenant of the suit site under the above owners as evidenced by Exhibit A-7 dated 20th March, 1973, which says that he had become tenant even two years prior to the date of the document. It is now common ground that he so became tenant in or about March, 1971. He put up a superstructure and has been enjoying the same. One Balasubramaniam purchased the land (including the suit, site) under Exhibit A-3 dated 4th December, 1973. He sold half of the suit site (1 1/2 cents) to the plaintiff in one of the suits and other half (1 1/2 cents) to the plaintiff in the other suit, under the sale deeds, Exhibits A-1 and A-2, both dated 5th December, 1973. According to the plaintiffs, the defendant attorned the tenancy to them but failed to pay the rent and began asserting hostile title. They gave notice terminating the tenancy. The defendant totally denied the tenancy in his reply notice and stated that he had never paid rent to any one. He contended that the site is part of a poramboke and that neither the plaintiffs nor the vendor had any title to the same.

3. The plaintiffs filed the two suits. The defendant in his written statement reiterated his stand in the reply notice and contended that the sale deeds are sham and nominal and bogus. It was also contended that the defendant had an agreement for sale with the prior owners and that he was in possession in part performance of the contract. The written statement concluded by saying that the defendant was entitled to protection under the Kudiyiruppu Protection Act.

4. All these contentions were negatived by the trial Court. It also negatived the contentions put forward by the defendant at the trial that by virtue of the provisions contained in the Kudiyiruppu Protection Act and the Kudiyiruppu Ownership Act, the civil Court had no jurisdiction to entertain the suits The defendant filed two appeals against the common judgment and decrees in the suit, but they failed. Hence these two second appeals by him.

5. The point raised by Mr. T.V. Ramanujum' learned Counsel for the defendant (appellant) is that on the case of the plaintiffs and the findings of the Courts below that the defendant was a tenant in respect of the suit site. Section 3 of the Kudiyiruppu Ownership Act would confer title on the defendant to the same (3 cents), that in any event the defendant would be entitled to the benefits of the Kudiyiruppu Protection Act and that the civil Court has no jurisdiction to entertain the suits.

6. The first question is how far the provisions-of the two Acts exclude the jurisdiction of the civil Court. The Kudiyiruppu Protection Act when it was originally enacted was meant to be a temporary provision. Sub-section (3) of Section 1 as it originally stood said that the Act shall be in force for a period of nine years and later it was amended to the effect that it shall be in force for a period of twelve years. The said Act came into force on 29th November, 1961 and it had force only up to 1973. Subsequently, that is, by Tamil Nadu Act (XXIII of 1975) the Kudiysruppu Protection. Act was re-enacted as a permanent measure. In the meanwhile, the other Act, namely, the Kudiyirnppu Ownership Act came into force with effect from 24th December, 1971.

7. Under this Act ownership was conferred on an agriculturist or an agricultural labourer occupying a kudiyiruppu on 19th June, 1971. There is provision for payment of compensation to the owner and recovery of such compensation from the occupier. At the moment it is enough to note that if the subsequent Act, namely, the Kudiyiruppu Ownership Act applied and thereby the person occupying the kudiyiruppu had become the owner, then there is no need to invoke the Kudiyiruppu Protection Act.

8. Under the former Act, an agriculturist or an agricultural labourer occupying a 'kudiyiruppu', which word is defined, can be evicted only as per the provisions contained in the Act. Section 3 states that save as otherwise provided in that Act, no person occupying any kudiyiruppu shall be evicted from such kudiyiruppu. Sub-section (3) of that Section states that Sub-sections (1) and (2) shall not apply to a person occupying a kudiyiruppu if he had been guilty of any negligence which is destructive of, or injurious to, the property belonging to the owner of the kudiyiruppu, or if he had wilfully denied the title of the owner of the kudiyiruppu. The Explanation states that a denial of the owner's title under a bona fide mistake of fact is not wilful within the meaning of the above clause. Section 4 provides for restoration of possession under certain circumstances Section 5 states that any owner of kudiyiruppu seeking to evict for any of the reasons mentioned in Sub-section (3) of Section 3 has to apply for eviction to the authorised officer within whose jurisdiction the kudiyiruppu is situated. Section 6 provides for enquiry by the authorised officer and passing of orders on the aforesaid application while Section 7 provides for an appeal by the aggrieved party to the District Collector. Section 11 of that Act says that no civil Court shall have jurisdiction in respect of any matter in which the authorised officer or the District Collector is empowered by or under the Act to decide. It further says that no injunction shall be granted by any Court in respect of any action taken or to be taken in exercise of any power conferred by or under the Act.

9. Now, turning to the definition of the word 'kudiyiruppu' which is in Sub-section (6) of Section 2, it is seen that it must be a site of any dwelling house or hut occupied, either as tenant or as licensee, by any agriculturist or agricultural labourer and includes such other area adjacent to the dwelling house or hut as may be necessary for the convenient enjoyment of such dwelling house or hut. There is an Explanation to the above definition which purports to create a presumption which I will deal with later. The word 'agriculturist' is defined in Sub-section (3) thereof and it is similar to the definition contained in the Tamil Nadu Cultivating Tenants Protection Act, 1955, namely, that a person who cultivates agricultural land by the contribution of his town manual labour or of the manual labour of any member of his family.

10. It is to be noted that the special jurisdiction of the authorised officer (apart from that under Section 4) is to enquire into and pass orders on applications for eviction filed by any owner of a kudiyiruppu. The appeal to the Collector also relates to the same matter. Under this Act, no other question is within the special jurisdiction of the authorised officer or the District Collector. Particularly the question whether any house-site is a 'kudiyiruppu' or not is certainly not within the special jurisdiction of the authorised officer and the District Collector. As a matter of fact, only in a case where it is admitted that the house-site is a kudiyiruppu, an application for eviction can be filed, for Section 5 makes it dear that only an owner of a kudiyiruppu seeking to evict can file an application before the authorised officer. In other words, only the owner who concedes that the site is a kudiyiruppu can go before the authorised officer for eviction. That makes it absolutely clear that if the owner does not concede that it is a kudiyiruppu, his remedy is not to go before the authorised officer but only to come to the civil Court. Of course, it would be open to the tenant to raise the question that the site is a kudiyiruppu as defined under the Act and that he is entitled to protection under the Act. In such a case, what is to happen to the suit in ejectment filed by the owner in the civil Court? Undoubtedly the civil Court has to go into the question whether the site is a kudiyiruppu or not. If it finds that it is not a kudiyiruppu, then the further questions, arising in the suit have to be determined and the suit is to be disposed of on merits.

11. There ate other situations where the civil Court would have necessarily to go into the question whether the site is a kudiyiruppu. In a suit for injunction on alleged attempted trespass or in a suit for possession on the allegation that the defendant is a trespasser, the latter might raise a contention that he is a tenant and the site is a kudiyiruppu. A person occupying a site or alleging that he is occupying the same and that it is a kudiyiruppu might file a suit for injunction. In all such cases the civil Court has to decide the question as to whether it is a kudiyiruppu or not. Therefore there can be no doubt that the civil Court has jurisdiction regarding that question.

12. However, in a suit in ejectment or for possession, if the civil Court finds that the site is a kudiyiruppu, then it cannot go into the question whether the tenant is entitled to the benefits of the Act; in other words whether he is not liable to be evicted under Section 3(3). Eviction on the grounds mentioned in Section 3(3) can be only on an application to the authorised officer under Section 5. It is within his special jurisdiction to find whether any of the grounds under Section 3(3) is made out on such application under Section 5 being filed.

13. Under analogous law, namely the Tamil Nadu Cultivating Tenants Protection Act, Section 6 which is similar to Section 11 of the Kudiyiruppu Protection Act, bars the jurisdiction of the civil Court in respect of any matter within the jurisdiction of the Revenue Court. Even so, the civil Court always had the jurisdiction to go into the question whether a person is a cultivating tenant. By virtue of Section 6-A of the Cultivating Tenants Protection Act, which was introduced by way of amendment, in a suit in ejectment the civil Court has to give a finding not only regarding the question whether the defendant is a cultivating tenant but also regarding the question whether he is entitled to the benefits of the said Act. If the civil Court finds in favour of the defendant on these two points, then the suit has to be transferred to the Revenue Court. In Govindaswami Gounder v. Ramaswami Gounder : (1958)2MLJ184 , Panchapakesa Iyer, J., has held that in a case where the civil Court acts under Section 6-A of the Cultivating Tenants Protection Act, it need not give a final finding regarding the question whether the defendant is a cultivating tenant or not and that if it is prima facie satisfied that the defendant is a cultivating tenant, it has to transfer the suit to the Revenue Court. But in Ramachandra Sastrigal v. Kuppuswami Vanniar (1961) 1 M.L.J. 335 a Bench of this Court has held that the civil Court has to give a definite finding and not a mere prima facie finding.

14. There being no corresponding provision as Section 6-A of the Cultivating Tenants Protection Act in the Kudiyiruppu Protection Act, there is no scope for the civil Court going into the question whether the defendant is entitled to the benefits of the Act (if it holds that the site is kudiyiruppu) and transferring the matter to the authorised officer. There is also no question of giving only a prima facie finding regarding the point whether the site is a kudiyiruppu or not. As I indicated earlier, there has to be a final finding inasmuch as that question is not within the special jurisdiction of the authorised officer.

15. Still the question remains as to what should be done by the civil Court once it finds that the site is a kudiyiruppu I am of the view that even though it is not to embark on the question whether the tenant is liable to be evicted under Section 3(3) that being a question within the special jurisdiction of the authorised officer, there is no bar for the civil Court to grant a decree for possession, subject to the provisions of the Kudiyiruppu Protection Act.

16. It has been held in a number of decisions of this Court that even in respect of a building governed by the Madras Buildings (Lease and Rent Control) Act (XVIII of 1960,) the civil Court can pass a decree for possession (under the Transfer of Property Act) Vide Muhammed Sukri Sahib v. Madhaua Kurup : (1924)46MLJ560 , Muhammadunny v. Melappurakkal Unniri : (1949)1MLJ452 and Thalai Vadivu Anandar v. Venugopala Chettiar : (1960)1MLJ356 . But such a decree for possession would be subject to Act XVIII of 1960. In other words, if the building is governed by that Act, the decree cannot be executed without the landlord going before the Rent Controller under Section 10 of that Act and establishing any one of the grounds thereunder for eviction. It would be a different matter if the civil Court comes to the conclusion that the building is outside the scope of Act XVIII of 1960. If it gives a finding then there would be no occasion for the landlord to go before the Rent Controller for eviction. If the civil Court passes a decree for possession after holding that the building is outside the scope of Act XVIII or 1960, then it would not be open to the executing Court to go behind it (see my judgment dated 10th August, 1977, in Ethirajammal v. Hassan Kannee alias N.M. Hassan : AIR1977Mad327 , S.A. No. 1565 of 1976.

17. I do not see why the principle enunicated in the decisions under Act XVIII of 1960 referred above are not applicable to a case where the civil Court holds that the site is a kudiyiruppu. As I said, it can pass a decree for possession under the Transfer of Property Act, if the plaintiff is entitled to possession. Of course the decree should make it clear that the same is subject to the provisions of the Kudiyiruppu Protection Act.

18. Now coming to the provisions of the Kudiyiruppu Ownership Act, the definitions are the same as in the other Act. Section 3 says that save as otherwise provided in the Act, any agriculturist or agricultural labourer who was occupying any kudiyiruppu on the 19th June, 1971, either as tenant or as licensee shall with effect from the date of the commencement of the Act be the owner of such kudiyiruppu and such kudiyiruppu shall vest in him absolutely free from all encumbrances. Sub-section (2) of the said section vests absolute title in such agriculturist or agriculthural labourer in the superstructure also even if the same belongs to any other person. Sub-section (3) makes certain exceptions. Section 4(1) says that if any dispute arises whether any agriculturist or agricultural labourer was occupying any kudiyiruppu on the 19th June, 1971 for purposes of Section 3 of the Act, such dispute shall be decided by the authorised officer. Sub-section (2) of the said section speaks of the procedure to be followed by the authorised officer. Section 5 provides for appeal to the District Collector. Section 6 relates to payment of compensation to the person having interest in the kudiyiruppu. Section 7 relates to determination of compensation, while Section 8 provides for an appeal to the civil Court (which word is defined) against the decision regarding compensation. Section 9 is about the apportionment of compensation while Section 10 is about payment of compensation. Section 11 speaks of a second appeal to the High Court against the decision of the civil Court under certain circumstances. Section 23 regarding jurisdiction is similar to Section 11 of the Motor Vehicles Act. It is unnecessary to note the other provisions except to say that they relate to the mode of payment of compensation and the mode of recovery of compensation from the occupant of a kudiyiruppu, apart from certain other matters.

19. It is quite clear that the question of determination of compensation and allied matters are within the special jurisdiction of the authorised officer subject of course to appeal to the civil Court and a second appeal under certain circumstances to the High Court. Section 4 also confers special jurisdiction on the authorised officer to determine any dispute 'whether any agriculturist or agricultural labourer was occupying any kudiyiruppu on the 19th June, 1971.' Rule 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Rules, 1972, made by virtue of Section 27 of the Kudiyiruppu Ownership Act, contemplates an application for the settlement of a dispute under Section 4 of the said Act to be made to the authorised officer having jurisdiction over the area within a period of two months from the date on which the dispute arose, with a proviso that the authorised officer may, for reasons to be recorded in writing, extend the period.

20. It is not possible to read these provisions as conferring exclusive jurisdiction on the authorised officer to decide the question whether a site is a kudiyiruppu or not. The Act nowhere says that such a question is one that has to be decided by the authorised officer. As already seen, all that Section 4 says is that if there is a dispute as to whether an agriculturist or agricultural labourer was occupying a kudiyiruppu on the 19th of June, 1971 (if he had so occupied, the ownership of the site would vest in him), this dispute has to be decided by the authorised officer. That does not mean that the question whether the site is a kudiyiruppu or not is within his exclusive jurisdiction. It should also be remembered that this Act is allied to the other Act, namely, the Kudiyiruppu Protection Act. It was already noticed that under that Act only an owner of a kudiyiruppu can approach the authorised officer to evict the tenant on any one of the grounds contained in Section 3(3) of the said Act, which pre-supposes that if the owner does not concede that the site is a kudiyiruppu he cannot possibly go to the authorised officer. Therefore I am quite clear that even under the Kudiyiruppu Ownership Act the question whether a site is a kudiyiruppu or not is within the jurisdiction of the civil Court. A decision by the civil Court on that point would be final. If, however, before any civil Court renders a decision on the question whether the site is kudiyiruppu or not, the dispute under Section 4(1) goes before the authorised officer, he may incidentally have to decide whether it is a kudiyiruppu. But if the civil Court has given a decision either way, that would be binding on the parties.

21. Mr. Ramanujam, learned Counsel for the defendant-appellant, referred to Muniyandi v. Rajanagam Iyer : AIR1976Mad287 , which arose under the Tamil Nadu Agricultural Lands Record of Tenancy Rights (Act X of 1969 as amended by Act XXXIV of 1972) and contended that even the question as to whether the site is a kudiyiruppu or not must be deemed to be within the jurisdiction of the authorised officer. The Division Bench which decided the above case has only held that as per Section 16-A of that Act (which corresponds to Section 11 of the Kudiyiruppu Protection Act and Section 23 of the Kudiyiruppu Ownership Act relating to the bar of jurisdiction of civil Court) a civil Court has no jurisdiction to decide any matter which the Record Officer, District Collector or other officer or authority is empowered by or under the Act to determine. What matter or matters are within the special jurisdiction of the Record Officer, etc., has not been decided.

22. It may be noted that the provisions of the abovesaid Act relate only to the preparation of a record of tenancy rights. It does not confer any other right on a cultivating tenant. His rights, as the law stands now, are only under the Cultivating Tenants Protection Act. Even that Act does not take away the jurisdiction of the civil Court regarding the question whether a person is a cultivating tenant or not. If in a suit, the question as to whether a party is a cultivating tenant or not arises, the civil Court has to decide it. If it decides that he is not a cultivating tenant, then the suit should be disposed of on merits. However, because of Section 6-A of the said Act, if it finds that the defendant in a suit is a cultivating tenant it has to transfer the suit to the Revenue Court.

23. In the judgment dated 5th January, 1977, in Palaniswami v. Ramaswami Gounder and two Ors. S.A. No. 149 of 1976, Ramanujam, J., has held that Section 16 A of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act is not a base for the civil Court to entertain a suit for injunction and in such a suit the civil Court has to incidentally go into the question as to who is in possession of the property and in what capacity. If any party contends that he is occupying the land as a cultivating tenant, that question has necessarily to be gone into by the civil Court. Similarly if a suit for possession of agricultural land is filed and the defendant contends that he is cultivating tenant that question has necessarily to be gone into by the civil Court. That is the position even under the Cultivating Tenants Protection Act which provides for an application to the Revenue Court for eviction, of a cultivating tenant.

24. One question would be, if an entry in the register prepared under the Record of Tenancy Rights Act, has already been made and has become final, how far such an entry would be binding on the civil Court is deciding as to whether a particular person was in possession as a tenant or not. Section 15 of the said Act says that any entry in the approved record of tenancy rights shall be presumed to be true and correct until the contrary is proved or a new entry is lawfully substituted therefor. Therefore prima facie such an entry cannot be conclusive regarding the question whether the person concerned is a cultivating tenant or not. However it is unnecessary for me to express a final opinion on that point in this case. It is enough to note that the decision reported in Muniyandi v. Rajanagam Iyer : AIR1976Mad287 would not help the defendant as it did not decide what it within the special jurisdiction and what is not. The above judgment does not say that the question whether a person is a cultivating tenant or not is within the special jurisdiction of the Record Officer. It does not say that the civil Court has no jurisdiction to investigate to such a question.

25. Now the remaining point for consideration is whether the suit site is a kudiyirappu. I have already referred to the clause relating to presumption under the definition of the word 'kudiyiruppu' which says that any person occupying the kudiyiruppu is an agricultural labourer or an agriculturist until the contrary is proved. But on an examination of the provisions, I am clear that whatever be the intention of the legislature the above provision relating to the presumption is a dead letter. The presumption would arise only if it is established that the site is a kudiyiruppu. In order to establish that the site is a kudiyiruppu, it should be shown that the site or dwelling house or hut, as the case may be, is occupied by an agriculturist or agricultural labourer (either as tenant or as licensee). Therefore the person who is occupying the site claiming that the site, etc., is a kudiyiruppu should establish that he is an agriculturist or an agricultural labourer. Undoubtedly every house site or a dwelling house or a hut is not a kudiyiruppu. Needless to stress that the person occupying the same should be an agriculturist or an agricultural labourer to make it a kudiyiruppu. Then there is no meaning in the Explanation to the definition to the word 'kudiyiruppu' purporting to create a presumption that any person occupying the kudiyiruppu is an agriculturist or an agricultural labourer.

26. It is not claimed by the defendant that he is an agricultural labourer. But the contention is that he is an agriculturist as defined in the Acts. As already noticed, an agriculturist is one who cultivates agricultural land by the contribution of his own manual labour or of the manual labour of airy member of his family.

27. In the present case, apart from the laconic plea in the written statement that the defendant is entitled to the benefits of the Kudiyiruppu Protection Act, there is no averment of fact regarding the question whether the site is a kudiyiruppu or not. It is true that in the plaint the defendant is described as an agriculturist. But the question is whether he is an agriculturist as defined in the Act. In common parlance, even a person who owns agricultural land and cultivates the same through hired labour is called an agriculturist, but under the definition, unless he contributes his own labour or that of any member of his family in the cultivation of the land, he would not be an agriculturist. The evidence in the case also does not support the contention that the site is a kudiyiruppu on the basis that the defendant who occupies the same is an agriculturist. The defendant as D.W. 1, has not said a word that either he or any member of his family contributes manual labour in the cultivation of agricultural lands. In chief-examination he stated that he owns agricultural lands and added that his mother also owns lands and that he is cultivating the same. In cross-examination he has stated:

He conceded that he has no record to show that he was cultivating any land. Even assuming that the defendant was cultivating agricultural lands, there is absolutely no evidence to show that such cultivation was with the manual labour of himself or any member of his family. Under these circumstances, it is not possible to hold that the site is a kudiyiruppu.

28. In this view it is unnecessary to go into the question whether the Kudiyiruppu Ownership Act, applies, thereby the site vesting in the defendant or whether the Kudiyiruppu Protection Act applies in which event the defendant can be evicted only as per the provisions of that Act. The plaintiffs are entitled to a decree for possession without the same being made subject to the Kudiyiruppu Protection Act.

29. The decree for future damages granted by the Courts below which shall be determined in separate proceedings is also correct.

30. The appeals fail and they are accordingly dismissed. But under the circumstances of the case, there would be no order as to costs. Time for giving vacant possession, six months.


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