Madras High Court
Subramaniam vs Ammani Ammal on 11 November, 1994
Equivalent citations: (1995)1MLJ237
ORDER Thanikkachalam, J.
1. The landlord is the petitioner herein. The respondent is a cultivating tenant under the petitioner in respect of 2.00 acres of nanja lands in R.S. No. 72 of Vannavodai Village, Tanjore District. The eviction petition was filed under Section 3(2)(b) and (c) of the Tamil Nadu Cultivating Tenants Protection Act (hereinafter referred to as Act 25 of 1955). According to the landlord, the present tenant's husband by name Singaram was cultivating the above land as cultivating tenant under the petitioner till his death. He had agreed to cultivate paddy crop in the abovesaid land and agreed to measure 48 'kalam' of paddy per year. The lease was only oral. After the death of the said Singaram, his wife the respondent herein is cultivating the land as a lessee under the petitioner; on the same terms and conditions as admitted by her husband. The landlord submits that, contrary to the agreement, the respondent now dug up a pit in a portion of the abovesaid leasehold land and replaced the 'vandal mann,' from the land and manufacturing bricks in the 'vandal mann' and constructed a brick-kiln in the abovesaid land, without the consent and knowledge of the petitioner/landlord. Therefore, according to the petitioner, the act of the respondent will amount to causing the destruction and injuries to the land. Digging a deep pit in the land is an act of causing injury to the land and it would not amount to doing any agricultural operation or for horticultural operation. Therefore, the respondent is liable to be evicted on the ground that the respondent ceased to cultivate the land in question.
2. The respondent has filed counter stating that she never removed the fertile soil of the lands for the production of bricks without the consent and knowledge of the landlord/the petitioner herein. The respondent submits that the petitioner has authorised the respondent to level the land for easier irrigation as the land is in the tail-end of the irrigation chamiel. According to the respondent this petition was filed with an ulterior motive of evicting the respondent from the land in question.
3. The petitioner examined himself as P.W.1. One Dhanapal was examined as P.W.2. The respondent did not examine herself or anybody on her side as witnesses. Ex.C-1 dated 2.9.1982 is a report filed by the Commissioner. The Revenue Court appointed a Commissioner to note the physical feature and the injuries that had been caused to the land in question by the respondent. The Commissioner has filed his report. On considering the facts arisen in this case, the Revenue Court has held that even though the injury was caused to the land, in Fasli 1392 and thereafter, the landlord agreed to receive the rent from the tenant which would go to show that the landlord has no objection for the tenant in converting the portion of the land for making bricks in a brickkiln and hence the tenant submitted that he is not liable to be evicted from the land in question. This revision is filed against the order of the Special Collector, Revenue Court, Tanjore dated 11.4.1989, on the abovesaid grounds.
4. Learned Counsel for the petitioner has submitted as under:
The Revenue Court has erred in concluding that the petitioner's contention regarding injury to the land in 1982 and consequential eviction under Section 3(2)(b) read with Sub-rule 8(2) of the Act 25 of 1955 is no longer acceptable in 1989. Once an injury in 1982 is proved by oral evidence of the petitioner and the Special Revenue Inspector it is an injury to the land forever. At no point of time, the petitioner has condoned the injury to the land. The tenant was guilty of negligence in destroying and causing injury to the land by digging a deep pit in the land and using the sand for manufacturing bricks in a brick-kiln. This was also admitted by the tenant in his counter dated 12.3.1983. The Revenue Inspector has submitted his detailed report with a topography of the land wherein the brick-kiln, was situate, along with the sketch plan. The Revenue Inspector in his deposition has stated that the tenant has produced 35,000 bricks out of which 32,000 bricks were sold and 3,000 bricks were left on the date when he inspected the land. It is significant to note that the irrigation of the land is from the southern side and the outlet is on the northern side. As such the contention of the tenant that he dug the sand on the northern side of the land for the irrigation purpose is unbelievable. The Revenue Court was not correct in holding that the petitioner has admitted in his evidence that the respondent has set right the hallow of the land where brick-kiln was situate. Nowhere in his evidence the petitioner has admitted that the injury to the land was cured. Therefore, there is no basis for the Revenue Court to come to the conclusion that the injury to the land was cured by the tenant. Even though the petitioner herein has adduced the evidence orally, the tenant has not examined any witnesses to support her case. It was, therefore, pleaded that the Revenue Court was not correct in not ordering the eviction of the tenant under Section 3(2)(b) and (c) of Act 25 of 1955.
5. On the other hand the learned Counsel for the respondent/tenant submitted as under:
The land is in a higher level than the channel. In order to get water from the channel the land was periodically levelled and brought to the lower level to the irrigation channel so as to get water for irrigation. The landlord authorised the tenant to level the land so as to get water from the irrigation channel. Even though the pit was alleged to be dug in the year 1982, subsequently the landlord used to receive rent from the tenant which would go to show that the tenant levelled the land to its original position by removing the earth. The mud taken out from the pit was used in the land in question. Therefore, it is clear that the earth removed was used to the land only. The mud was not taken out of the land in question. Therefore, the landlord failed to establish that the tenant has caused injury to the land and put the land to a different user other than for agricultural purpose and for horticultural purpose. Thus the order passed by the Revenue Court in rejecting the application of the landlord is in order and hence no interference is called for. The facts remain that the petitioner herein is the landlord and the respondent is the tenant under the petitioner and he is entitled to the benefits of Act 25 of 1955.
6. According to the landlord the tenant dug up a deep pit in the northern portion of the land and used the earth taken from there for the purpose of manufacturing bricks in brick-kiln. The tenant has manufactured 35,000 bricks and out of which 32,000 bricks were sold and only 3,000 bricks were left on the land when Special Revenue Inspector visited the place. According to the tenant the land was in a higher level than the irrigation channel and in order to bring the land to the lower level, with the permission of the landlord, the tenant was periodically lowering down the land in question and, therefore, there is no question of digging any pit as alleged by the landlord. Further, the earth removed from the land in question was used in the same land and it was not taken out of the land. The bricks manufactured were also used for constructing channel for irrigation purpose. According to the tenant, all these activities were done with the permission of the landlord. Further, according to the tenant, the pit was dug in the year 1982 and later on, the landlord was receiving the rent from the tenant which would go to show that the land was levelled and the injury caused to the land was cured.
7. It remains to be seen that the landlord examined himself as P.W.1 and he also examined another person as P.W.2 in order to prove that the tenant caused injury to the land in question. The tenant did not examine any witness in order to prove her case nor did she file any document to controvert the case of the landlord. P.W.1 was the landlord. The Revenue Court appointed an Inspector to inspect the land in question. At the time of inspection by the Revenue Inspector the respondent/ tenant was not present in the land in question but the respondent's brother-in-law was present, who refused to sign as witness in the report prepared by the Inspector/Commissioner. The pit was said to be dug on the northern side. Therefore, according to the landlord there is no necessity for the tenant to lower down the level of the land from the northern side. The pit was stated to be 81 link east to west on the western side and 33 link from south to north. The Commissioner on enquiry ascertained that the tenant has manufactured 35,000 bricks from the earth removed from the land and out of 35,000 bricks 32,000 bricks were sold and 3000 bricks were left. Even the tenant admitted that the pit was dug in the year 1982. But he contended that it was levelled in the later years. Therefore, it has to be seen whether the tenant has caused any injury to the land in the year 1982 and thereby affecting the agricultural or horticultural operations. In the case of S. Krishnamoorthy Iyer v. Ramaiah Konar 96 L. W. 26, it was held as follows:
Where fertile cultivable agricultural land has been dug up for the purpose of removing the earth there from to form a kalam, such an act is really destructive of or injurious to the land in that the area occupied by the pond cannot be put to either agricultural or horticultural use or purposes. Therefore, the admitted digging up of the pond by the respondent and using the earth there from for the purposes of providing a kalam would undoubtedly attract Section 3(2)(b) as well as Section 3(2)(c) of the Act.
8. Admittedly in the present case the tenant has dug up a pit in the land in question and used the earth for manufacturing bricks. The Commissioner who inspected the land in question made enquiries with regard to the bricks present there and filed his report. In the report it is stated that the tenant has manufactured 35,000 bricks out of the earth dug out from the land in question, and 32,000 bricks were sold by him and remaining bricks were available there. The report filed by the Commissioner was not considered by the Revenue Court. Further, it is not the case that the respondent/tenant did not dig any pit but his case is that even after 1982, the landlord received the rent from him which would show that the landlord has condoned the act of injury caused by the tenant to the land in question. This is the reason given by the Revenue Court without any basis. In the decision reported in 1976 S.C. 49, it was stated that "even though the injury was caused to the land earlier that would not absolve the tenant from evicting from the land in question under Section 3(2)(b) and (c) of the Act 25 of 1955. Thus, the landlord proved that the injury to the land was caused by the tenant in 1982, as contemplated under Section 3(2)(b) and (c) of Act 25 of 1955. Considering the facts arising in this case in the light of the judicial pronouncements cited supra, I hold that the Revenue Court was not correct in dismissing the application filed by the landlord. Therefore, the tenant is liable to be evicted under Section 3(2)(b) and (c) of the Act 25 of 1955.
9. In the result, the order passed by the Revenue Court is set aside and the revision is allowed. Eviction is ordered under Section 3(2)(b) and (c) of Act 25 of 1955.