T. Ramaprasada Rao, J.
1. Under an agreement dated 17th November, 1966, the petitioner and the first respondent agreed that the first respondent could enter upon her land of an extent of about 11 acres in Uthamapalayam, Madurai and that whilst she be enabled to raise coffee, orange, pomegranates etc., crops in the same land, the first respondent would equally be permitted to plant banana trees and enjoy the usufructs therefrom. It is also in the contemplation of parties what whilst the first respondent enters the land for purposes of enjoying the usufructs of the banana crop raised by him, he should not in any way disturb the other crops which the petitioner might raise in the very same land. Almost at the end of the period provided for under the arrangement as above, the first respondent apparently intended to get a permanent right in himself under the Madras Cultivating Tenants' Protection Act and with that object in view, he applied to the Record Officer, Periakulam requesting him to record him as a cultivating tenant of the land owned by the petitioner. He succeeded before the Record Officer. The petitioner questioned such recording by the Record Officer under the provisions of the Act, but was not successful. The petitioner, therefore, filed an appeal as provided under the Act to the Special Deputy Collector, Madurai, who agreed with her that the respondent was not a cultivating tenant as no interest in the land was at any time intended to be transferred under the arrangement referred to above. On revision as against this order to the second respondent, he differed from the Special Deputy Collector and took the view that an interest in the land was transferred under the arrangement of 1966 and that the first respondent was entitled to be recorded as a tenant within the meaning of the Tamil Nadu Cultivating Tenants' Protection Act, 1955. It is as against this order that the present Writ Petition has been filed.
2. In the order challenged, the second respondent while stating the features of the arrangement between the petitioner and the first respondent came to the conclusion that the possession of the land was handed over to the first respondent for cultivating the land. He conceded that the petitioner had the concurrent right to plant coffee seeds and to grow other fruit-bearing trees in the land along with the operations which the first respondent could do on the land, which he characterised as agricultural operations. But this feature by itself, according to the second respondent, would not militate against his conclusion that what was agreed to be transferred under the arrangement was an interest in the land and not a licence to the first respondent to use the land for purposes of raising banana plants and enjoy the usufructs therefrom. The petitioner raised incidentally a plea that the 1st respondent has surrendered his right under the arrangement some time prior to the application made by him for recording his rights under the Act. This was, however, disbelieved and as a question of fact, it was found that the first respondent was enjoying the rights which he had under the arrangement on the date when he sought for himself being recorded as a cultivating tenant in the public records. This finding cannot be challenged in this Court.
3. The only question that arises for consideration is as to what is the nature of the interest created under the document dated 17th of November, 1966. At every material stage, the perceivable intent which brought the parties together is easily seen. The sole purpose and intention of the arrangement was to allow the first respondent into the land for purpose of enjoying the bananas out of the plants which the first respondent might raise by using the petitioner's land. The document also enables the petitioner to contemporaneously use such land for her own purposes, and particularly, for agricultural operations in the matter of raising fruit-bearing trees and coffee crops. One singular feature in this arrangement is that the first respondent himself undertook to supervise the coffee crop which the petitioner might raise in the land. The schedule to the document also make clear that what was intended to be granted was. In the light of these textual stipulations between the parties as reflected in the arrangement, the contention of the learned Counsel for the first respondent is that what was intended to be granted under the arrangement of 1966 was an interest in immoveable property. For a person to secure an interest in immoveable property and project rights as a cultivating tenant within the meaning of Section 2 (aa) of the Madras Cultivating Tenants' Protection Act, he should be a person who contributes his own physical labour or that of any member of his family in the cultivation of any land belonging to another, under a tenancy agreement, express or implied. Even if a person satisfies the earlier portion of the definition of 'cultivating tenant' namely, that he contributes his sinews for purposes of cultivation, yet the accent is upon the land which he has to cultivate under an agreement between himself and another. Any land mentioned in Section 2 (aa) with reference to particular and individual cases has to be understood as the land in those instant cases. Therefore, it is necessary that a person projecting an interest as a cultivating tenant has to prove and establish that he has an interest in the land which is the subject-matter of the enquiry.
4. In the instant case, the first respondent was unable to satisfy the appellate authority, namely, the Special Deputy Collector that a particular piece of land out of 11 and odd acres belonging to the petitioner could be carved out from the totality of the land and be said to be the land' which has been leased out or demised to him for the purpose of planting banana plants and enjoying the banana usufructs therefrom. Unless there is acceptable proof that a particular piece of land which is decipherable or identifiable and which could be specified is the subject matter of a demise and unless the person who claims a right as a cultivating tenant establishes that his physical labour involving agricultural operations is with reference to such specified and identified land, he cannot be said to be a person having an interest in immovable property or 'the land'. This is the essence and foundation for the proof and establishment of a right within the meaning of Section 2 (aa) of the Act. It, therefore, follows that if a person claiming such a right is unable to point out clearly that a piece of land is in his sole custody for purposes of being operated upon and for himself utilising the same for his agricultural operations, it cannot be said that there is a relationship of lesser and lessee as is ordinarily understood under the provisions of the Transfer of Property Act as between that person and the owner of that land. Whatever may be the nature of the right as between such two persons, it falls short of a right as a lessee with reference to immovable property. Only if an interest in immovable property is transferred by an instrument, express or otherwise, and that right was so granted by the owner of the land to enable the other person to use it for agricultural purposes, he cannot claim right as a cultivating tenant as well.
5. The question is whether in the instant case such an identified and identifiable interest in the land carved out of a larger extent of land has been given to the first respondent and whether he could in the circumstances, be said to be in exclusive possession of the same to the exclusion of the petitioner, which possession would enable him to raise banana plants therein and enjoy the banana usufructs therefrom.
6. The Special Deputy Collector who heard the first appeal rightly referred to the fact that as the parties agreed to have mixed crops in the land, in the sense, that both the petitioner and the first respondent could cultivate on the same land and as this is a case in which inter-cultivation of crops was possible and was agreed, and as there was no possibility to demarcate or define in clear terms the land on which the first respondent could plant banana trees and enjoy the usufructs therefrom, the respondent would not be entitled to a relief of recognition as a tenant under Section 2 (aa) of Act XXV of 1955. The Special Deputy Collector also found as a fact that the first respondent admitted before the Record Officer that there were coffee and banana crops in the suit lands when the first respondent took the lease. This admission is a clear pointer to the fact that the parties intended that the totality of the land was to be subjected to multicultivation, or, at any rate, to inter-cultivation, as pointed out by the Special Deputy Collector. The petitioner could raise fruit bearing trees and coffee plantations. The first respondent could equally raise within the available space in the land, banana plants and enjoy the usufructs therefrom. All these factors put together do not create a defined interest over a demarcated piece of land in the total extent of 11 acres and odd owned by the petitioner. In these circumstances, I am of the view that no interest in the land has been carved out and transferred by the instrument dated 17th November, 1966.
7. The learned Counsel for the first respondent invited my attention to two decisions of single Judges of our Court, namely Muthuraju v. Rqjarathinam : (1960)2MLJ475 . In the first case, Anantanarayanan, J., as he then was, held the view that a person who takes land on lease for enjoyment of the usufruct of the cashewnut plantation therein is a cultivating tenant within the meaning of the old definition. In the second case, Srinivasan, J., went a step further and held that if a person is entitled to usufruct from the trees spread over a period of time during which period the usufruct grew out of the soil, then the right to collect the usufruct is in the nature of immovable property and would accordingly amount to a lease. Before Srinivasan, J., the Division Bench decision of our Court reported in Govindaswami v. Mahalakshmi Ammal, was also cited. But the learned Judge was of the view that the question that arose before him was not directly dealt with therein.
8. But the case more apposite for our purpose is the Bench decision reported in Govindaswami v. Mahalakshmi Ammal (1963) 2 M.L.J. 137 Ramachandra Iyer, G.J., delivering the judgment of the Bench held, under similar circumstances, that the right created under the deed was only in respect of the trees. In the course of the judgment, the learned Chief Justice observed that the provision in the agreement that the person would be entitled to repair the land so as to render it useful for obtaining the produce would seem to imply that no interest in land was created, for if such a right or interest was intended to be created under the document, there was no necessity for this clause at all. With respect, I adopt all these observations and apply the same to the facts of our case. In the agreement between the parties, both have agreed to jointly cultivate the land. It is, therefore, possible to conceive of situations where the physical agricultural operations are carried on in the land not only by the petitioner to the exclusion of the first respondent and reciprocally by the first respondent to the exclusion of the petitioner, but simultaneously by both. If, therefore, both the landlord and the tenant could enter upon the land, and concurrently and jointly carry on agricultural operations for the benefit of themselves, it cannot be said, even in those circumstances, that an interest in a specified land was transferred by the landlord to the tenant. It would be impossible to find out or carve out from the total land as to what portion has been definitely leased out, as contended by the first respondent. This position, though noticed by Srinivasan, J., was not followed since the learned Judge was of the view that the question which arose before him was different. In any event, the Division Bench judgment binds me and the observations therein coupled with the facts which are not disputed and dealt with by me compel me to hold that the order of the second respondent presents an apparent error which has to be set aside by the issue of a rule under Article 226 of the Constitution.
9. If the first respondent has not surrendered possession as contended by the petitioner, and if he is in possession, then it necessarily follows that the petitioner has to avail herself of the provisions of law to evict the first respondent from the land.
10. This petition is, therefore, allowed. No costs.