Madras High Court
Nachayee Ammal, M. Sundaram, S. ... vs Sri Venugopalakrishnaswamy Temple, ... on 1 March, 2003
Equivalent citations: (2003)2MLJ212
JUDGMENT K. Gnanaprakasam, J.
1. The plaintiffs are the appellants.
2. The plaintiffs have filed the suits for permanent injunction, restraining the defendant/temple from leasing out the suit property in public auction.
3. The common case of the plaintiffs in both the suits is that the suit property belonged to the temple and the same was leased out to one Nachayee Ammal, plaintiff in OS. No. 1197/1983, under the registered lease deed dated 30.7.1943 and to one M. Sundaram, plaintiff in OS. No. 1198/1983, under the lease deed, dated 11.7.1933 on annual cash rent. Apart from the cash rent, the tenants have to deliver certain number of coconuts and ripe mangoes to the temple. The plaintiffs are entitled to raise crops as they like in the lands and they have been enjoying the suit property as tenants and have been paying the rent as agreed and the rents have also been increased periodically and the rent paid by Nachayee Ammal prior to the fling of the suit in 1982 was Rs. 1,150/- per year and the rent paid by M. Sundaram, prior to the filing of the suit in 1982 was Rs. 920/-. The plaintiffs claimed that they are cultivating tenants and entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act. The defendant/temple arranged to lease out the property on 30.6.1983 in public auction to get more rent and therefore, they field the suits.
4. The defendant/temple filed written statements, making common defence that the temple and its properties are under the supervision and control of the Hindu Religious and Charitable Endowments Department and that in every Fasli, the property is put to public auction and the highest bidder is given the right to pluck the fruits in the trees in the suit lands and the Officers of the Endowment Department would conduct the auction and that the successful bidders would also execute documents in favour of the temple and the bidders have also undertaken that they have no right in the lands and they are only licensees to enjoy the usufructs alone and the plaintiffs are entitled to only pluck the fruits from the trees and the plaintiffs are not lessees and they are not entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act and when they arranged for the auction in respect of usufructs, the plaintiffs have filed the suits.
5. Both the suits were tried together and the plaintiffs in their respective suits were examined as PWs. 1 and 2 and marked Ex. A1 to A55 and the defendants have also examined two witnesses and also marked Ex. B1 to B15. The trial court accepted the case of the plaintiffs and decreed the suits. On appeal, the lower appellate court accepted the case of the Temple and allowed the appeals. Aggrieved by the same, the plaintiffs have preferred these appeals.
6. Heard both the learned advocates for the appellants and the respondents.
7. The only question that has got to be answered is, whether the right to pluck the usufructs from the tree in the suit property would amount to lease or licence?
8. The plaintiffs claim that they are the lessees of the suit lands and they have also executed lease deeds in favour of the temple, which are Exs. A1 and A2 and also entitled to be in possession and to enjoy the lands also. They also contend that as they are the tenants, they are entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act also.
9. Per contra, the learned advocate for the defendant/temple would contend that the plaintiffs are not lessees and the suit lands were brought to public auction, in which the plaintiffs participated and taken only the rights of collecting usufructs alone from the trees in the suit lands and they are not lessees and also not entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act, 1955. But, however, the plaintiffs contend that they have been cultivating the lands also and they have raised plantain and greens and therefore, they are lessees. But, on the other hand, the defendants would contend that the plaintiffs are not lessees and their names were not registered in the record of the tenancy register and therefore, they are not tenants and their claim is not accepted.
10. Now, let us consider whether the right to pluck cocoanuts and mangoes would amount to lease and whether the person, who has taken the said right, would be a tenant and entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act, 1955.
11. Ex. A1, dated 30.7.1943 and Ex. A2, dated 4.6.1948 are the documents executed by one Swamiar Velar in favour of the temple. In Ex.A1, it is stated, "??. vGjpf;bfhLj;j njhg;g[f;Fj;jifg;gj;jpuk; vd;bd btd;why;. moapy; fz;l _ntQqnfhghyfpUc;&z !;thkpf;Fr; brhe;jkhd njhg;g[g;g[";irfis nkw;go nfhtpy; ou!;oahd j';fsplk; tUc&k; Ie;Jf;F Fj;jif fPH;epyk; rhFgo cs;gl xg;g[f;bfhz;oUg;gjhy;/////////// ku';fs; nghf cs;s $hfhf;fspy; ntz;Lk; njhg;g[g;gaph;fs; rhFgo bra;Jbfhz;L/////// vGjpf;bfhLj;j njhg;g[f;Fj;jif gj;jpuk;/@ In Ex.A2, it is stated, "vGjpf;bfhLj;j bjd;idku njhl;lk; buhf;f Fj;jifg;gj;jpuk;//////// _ntQqnfhghyfpUc;&z !;thkp nfhtpYf;F brhe;jkhd moapy; fz;l g[";ir bjd;idku njhl;lj;ij. nfhtpy; ou!;o ncwhjhtpy; ehd; j';fsplk; nkw;go rh;tjhhp tUc&k; Mo khjk; 1?k; njjp Kjy; tp$a tUc&k; Mdp khjk; 30?k; njjp Koa 5(Ie;J) tUc& bfLt[f;F tUc&k; xd;Wf;F U:/175?k; nj';fha; 125?k; khk;gHk; 100?k; Fj;jifbfhLg;gjhf xg;g[f; bfhz;oUg;gjhy;////////// njhl;lj;jpy; fhypahd ,l';fspy; ehd; brhe;jj;jpy; g[";ir rhFgo bra;Jbfhs;sntdhft[k;//////////*
12. The plaintiff in OS. No. 1197/1983, Nachayee Ammal relies upon Ex. A1 and A2 to establish that what has been leased out to her is not only the right to pluck coconuts and mangoes, but also to raise crops in the vacant land. Like wise, Sundaram, who is the plaintiff in OS. No. 1198/1983, relies upon Ex. A33, dated 11.7.1933 executed by Marimuthu in favour of the temple, wherein, it is stated, "njhg;g[fis fPH;epyk; cs;gl///// j';fsplk; fPH; epyj;ija[k; njhg;g[fisa[k; xg;g[tpj;J ,g;gj;jpuj;ij uj;J bra;Jbfhz;L nghntdhft[k;///////////" Ex.A34 is dated 16.7.1940, executed by Periaswamy and others in favour of the temple, wherein, it is stated, "vGjpf;bfhLj;jg;gj;jpuk; vd;dbtd;why;/////// _ntQq nfhghyfpUc;&zRthkpf;F brhe;jkhd g[";ir gy tpUc&k; njhg;ig fPH;epyk; cs;gl/////////// Fj;jiff;F xg;g[f;bfhz;L //////////// cs;s njhg;g[k; mjpy; cs;s gytpUc&';fs; cs;gl fPH;epyKk; Fj;jif epyk;//////"
13. It is argued on behalf of the appellants that what was leased out to them is not only the right to pluck the usufructs of the trees alone, but, alto to cultivate the lands also and therefore, they are the tenants in respect of the agricultural lands and as they are cultivating these lands personally, they are entitled to the benefits under the Tamil Nadu Cultivating Tenants Protection Act, 1955.
14. 'Cultivating Tenant' is defined under Section 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act, 1955, which states " 'Cultivating Tenants' means 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 and includes any such person who continues in possession of the land after the determination of the tenancy agreement". Cultivation is also defined as " 'cultivation' means the use of lands for the purpose of agriculture or horticulture". The term 'land' is also defined in Section 2(d) as " 'land' means land used for the purpose of agriculture or horticulture and includes any building, or any waste, vacant or forest land, appurtenant thereto, and any house-site belonging to the landlord and let to the cultivating tenant under the same agreement of tenancy."
15. The right to pluck cocoanuts or mangoes cannot be called a mere licence, having regard to the definition of "immovable property" under Section 3, Clause (26) of the General Clause Act, which reads as thus, "Immovable property' shall include land benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth." Therefore, the lease of plucking of cocoanuts or mangoes would amount to transfer of interest in immovable property and therefore, the plaintiffs are the tenants in respect of the agricultural lands.
16. A similar question arose for consideration, in the case of R. Saravanan Vs. Sri Vedaranyeswaraswami Devasthanam, Vellalar Koil, Mayuram Town, rep. By its hereditary trustee, the Adinakarthar of Dharmapuram Mutt and another (1982-2-MLJ-290), wherein (S. Mohan, J., as he then was), the Court, after considering the question in a detailed manner and also following the decision rendered in Venugopal Pillai Vs. Thirunavukkarasu (1948-2-MLJ-155), (wherein Rajamannar, Officiating CJ, as he then was) had observed, "On a plain reading of the document, it is clear that the rights which the defendant obtained there under were: (1) the right to enjoy the toddy yield from the trees; and (2) the right to enter upon the land for the said purpose. It is quite clear that the defendant did not obtain any right in and to the land. He was not entitled to the exclusive possession of the land as such. The owner was entitled to make such use of the vacant land as she wanted to and she was expected, at her cost, to water the trees and keep the garden in good condition. The defendant cannot, therefore, be held to be a lessee of a garden as such. So far as the land was concerned, he was only a licensee and his right to enter upon the land and to use the land was only so long as he had the right to enjoy the toddy yield from the trees. The next question is whether this right to take the toddy yield from the trees to which certainly the defendant was entitled under the document was a right in the nature of a licence or was it a lease of immovable property? Section 105 of the Transfer of Property Act defines a lease thus, 'A lease of immovable property is a transfer of right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money??' A licence is defined in the Indian Easements Act in Section 52 as follows:- ' Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.'
17. In Shiv Dayan Vs. Puttu Lal (1932-ILR-54-All-437=AIR-1933-All-50), the Allahabad High Court applied the very same test and held, "a mortgage of a fruit bearing tree is a mortgage of immovable property. Applying this test there can be no doubt that the right to tap the cocoanut trees and obtain toddy is in the nature of immovable property because it is a benefit which arises out of land."
18. The right to cut and remove the cocoanuts was considered in the case of Ranga Iyengar Vs. Sivaswami Pandaram (1977-2-MLJ-265), wherein it was held, "Since in this case the lease was not a lease of the land but it was a lease of the right to cut and remove cocoanuts from the trees standing on immovable property, it is a lease of immovable property itself and as held by this Court it is also an agricultural lease." Ultimately, it was held, "The right to pluck the cocoanuts would amount to a lease of immovable property and that it is an agricultural lease."
19. Applying the ratio in all the decisions referred to above, there may not be any difficulty in arriving at the conclusion that the plaintiffs in the suits were also given the right to pluck cocoanuts and mangoes and as a matter of fact in Exs. A1, A2, A33, A34, the right was given to enjoy the land also and as such, we have to necessarily hold that the plaintiffs are the cultivating tenants in respect of the agricultural lands.
20. In Amirthakateswaraswami Arthajama Kattalai, Thirukkadaiyur, by its Trustee Govindaswami Chettiar Vs. Kaliyamurthy (1995-1-LW-42-JS), (Ismail, J., as he then was), had an occasion to consider the case of this nature, whether the right to enjoy the usufructs of cocoanut tree was a lease or licence. In that case also, apart from the right to pluck usufructs, the lessee was also given the right to raise punja crops in the land. In that said context, it was held, "what was the subject matter of the lease was not merely the usufruct of the cocoanut tope, but also of the land itself and therefore, he is the lessee cultivating the lands and not the licensee."
21. In our case, the trial court held that the plaintiffs are the cultivating tenants and granted the relief of injunction. But, however, the lower appellate court had applied the Public Trust Act and held that what was leased out is a tope and therefore, the Tamil Nadu Cultivating Tenants Protection Act is not applicable to the plaintiffs. A similar question arose for the consideration in the case of M.Doraiswamy Vs. Sri Sangameswaraswamy Devasthanam, Bhavani by its Executive Officer, Bhavani (1995-1-LW-43-JS), (Mohan, J., as he then was), in which the provisions of the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 and also the Tamil Nadu Cultivating Tenants Protection Act, 1955 were considered. Section 2(29) of the Public Trust Act defines about 'thope' and Section 51 of the said Act excludes certain lands as follows, "Nothing contained in this Act shall apply to (iv) lands converted into orchards or topes or arecanut gardens whether or not such lands are contiguous or scattered: Provided that such lands shall be exempt only so long as they continue to be Orchards, topes, or arecanut gardens." Section 62 of the said Act also says, "On and from the date of the commencement of this Act, the Madras Cultivating Tenants Protection Act, 1955 and the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956, shall stand repealed in their application to a cultivating tenant in respect of any land held by him under a public trust." But, in view of the definition of 2(aa), (b) and (bb) of the Tamil Nadu Cultivating Tenants Protection Act, it was held that the nature of right is only a lease and not a licence and the Public Trust Act would not be applicable and held that the tenant is entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act, 1955.
22. In view of the decisions rendered by the Division Bench in 1995-1-LW-42-JS and 1995-1-LW-43-JS, one could easily come to the irresistible conclusion that the lease granted to pluck or gather cocoanuts or mangoes is lease of immovable property and therefore, the lease would be considered as an agricultural lease and the lessee is entitled to the Tamil Nadu Cultivating Tenants Protection Act, 1955. In our case, the lessees are further strengthened by the express language used in Exs. A1, A2, A33 and A34, wherein it is stated that along with the land, the lease was granted and therefore, there can be no doubt that the plaintiffs are the lessees and not the licensees and therefore, they are entitled to the protection under the Tamil Nadu Cultivating Tenants Protection Act, 1955 and their suits have got to be decreed.
23. In the result, the second appeals are allowed and the decree and judgement of the lower appellate court are set aside and the decree and judgement of the trial court are restored. No costs. Consequently, connected CMPs are closed.