Madras High Court
G. Selvamani And Four Ors. vs The District Revenue ... on 27 November, 1997
Equivalent citations: (1998)1MLJ639
ORDER S. Jagadeesan, J.
1. The petitioners have filed the writ petition to quash the order of the third respondent, dated 28.1.1994 regarding Tenancy Rights Revision Petition No. 10 of 1993 wherein the fourth respondent was declared as the cultivating tenant.
2. The lands which are the subject matter of the tenancy originally belonged to one Govindarajan who died in the year 1986. The petitioners are the legal representatives of the said Govindarajan. He had executed a registered othi deed in the year 1976 in favour of one Rajappa Sennandar. After the death of the said mortgagee, his legal representatives had executed a deed of assignment in favour of one Thangappa on 3.9.1987. The petitioners filed a suit O.S. No. 237 of 1991 for redemption. The said suit was decreed against which, the fourth respondent herein filed an appeal A.S. No. 146 of 1992. The said appeal was also dismissed. However before the filing of the suit, the mortgagee had set up the fourth respondent herein as a cultivating tenant and the fourth respondent filed a petition to record his name as the cultivating tenant. The third respondent had recorded the name of the fourth respondent by an ex parte order on 8.3.1991. Against which, the petitioners preferred an appeal before the second respondent which was dismissed. The further revision before the first respondent was also dismissed. Aggrieved against this, the present writ petition is filed.
3. The contention of the learned Counsel for the petitioners is that the Civil Court has given its specific finding that the fourth respondent is not a cultivating tenant and as such, the order of the respondents 1 to 3 herein is liable to be set aside. The further contention of learned Counsel for the petitioners is that the third respondent in his order has relied upon only the lease deed alleged to have been executed by the assignee of the mortgage and no one had been examined by the Record Officer. The Record Officer further placed the burden on the petitioners stating that the petitioners have not produced any document to disprove the claim of the fourth respondent that he is the cultivating tenant. The Appellate Authority as well as the Revisional Authority have merely concurred with the Record Officer and dismissed the appeal as well as revision.
4. On the contrary, learned Counsel for the fourth respondent contended that the Authorities have considered all the materials available on record and found that the fourth respondent is the cultivating tenant.
5. The short question for consideration is the writ petition is whether the petitioners have been given sufficient opportunity to disprove the case of the fourth respondent. It is the case of the petitioners that the order passed by the third respondent-Record Officer is an ex parte order and they had not been given sufficient opportunity. Moreover, the Civil Courts have held that the fourth respondent has not established that he is the cultivating tenant and decreed the suit filed by the petitioners. The Civil Court has decreed the redemption of the mortgage as well as delivery of possession.
6. The Appellate Authority as well as the Revisional Authority have totally failed to consider the plea put forth by the petitioners about the want of opportunity before the Record Officer. They merely agreed with the finding of the Record Officer and dismissed the appeal as well as the revision. Mere production of the document may not be sufficient to establish the proof of the same. The Authorities being Quasi Judicial Authorities, and they have been authorised to decide the rights of the parties, it is necessary that they should give sufficient opportunity for the parties to establish their case. In this case, the Authorities below have merely accepted the lease deed produced by the fourth respondent as well as the receipts alleged to have been issued towards the lease amount. In the absence of any one being examined in respect of those documents, I am of the view that the same cannot be accepted as conclusive proof, especially in view of the findings given by the Civil Court.
7. I have perused the records of the Revenue Court. The receipts produced by the second respondent are all half size papers of the same size and same quality. When two different persons had issued the receipts for the lease amount for different years, it is not known as to how the receipts can be of the same size. The second respondent has stated in the written statement filed in the civil suit that he has to give 22 kalams of kuruvai paddy and 20 kalams of samba paddy as the lease amount. But all the receipts produced by the second respondent reveal the measuring of only 20 kalams of paddy. This also created a doubt to the effect that all the receipts have been prepared on one day. There is no explanation as to why the balance of 22 kalams was not measured all along. Further when the second respondent is a tenant since 1978 or 1979 he has not filed any application before the Record of Tenancy Officer till 1990. The application has been filed only after the petitioner had issued notice for redemption. This conduct would clearly establish that the assignee of the mortgagee is trying to enjoy the mortgaged property as much as possible or in the alternative is trying to deprive the legal representatives of the mortgagor from recovery of possession by way of redemption. The best evidence to establish the cultivation is the adangal extract. When the second respondent had been cultivating the land for nearly 12 years prior to the filing of the application before the Record of Tenancy Officer, he has failed to produce any adangal extract to establish his cultivation. In the absence of any adangal extract, the certificate issued by the Village Administrative Officer cannot be accepted, since it can be procured at any time.
8. Though it is contended by the counsel for the second respondent that the Civil Court has no jurisdiction by the counsel for the second respondent of the tenancy right, in the judgment reported in Periathambi Goundan v. The District Revenue Officer, Coimbatore, 93 L.W. 169 the Full bench of this Court has held that the Civil Court has no jurisdiction to give a finding with regard to the tenancy right alone. But, however, if that question arises incidentally then the Civil court has jurisdiction to give a finding and the Civil Court need not refer the matter to the Record of Tenancy Officer. The extract the same as follows:
We shall now proceed to consider the first aspect of the matter. As far as the first aspect is concerned, as we have pointed out already, we have to ascertain the matters covered by Section 16-A with reference to the other provisions of the Act dealing with the matters to be determined by the authorities functioning under the Act. Two provisions in the Act which are relevant in this behalf are Section 3(2) and Section 14(1), which we have extracted already, Section 3(2) of the Act refers to the particulars which the record, directed to be prepared under Sub-section (1) thereof, should contain, while Section 14(1) provides for a certified copy of a record being annexed to an application made in pursuance of the provisions of the enactments enumerated therein. The object of the Act as well as the provisions contained in Section 3(2) make it clear the a Record Officer or the Appellate or Revisional Authority has to determine the following matters--(1) the survey number or sub-division number, extent and local name, if any, of the land let for cultivation by a tenant; (2) the name and address of the landowner (3) the name and address of the intermediary, if any; and (4) the name and address of the tenant cultivating the land. It may be prima facie stated that these are the four matters which are required to be determined by the Record Officer or the Appellate or Revisional Authority under the provisions of the Act. However, the necessity to determine these questions may occur in the context of different controversies and not purely on a specific disputes with respect to these particulars alone. Even the determination of the particulars enumerated in Section 3(2) cannot be in isolation in respect of any one particular matter but can only be in the context of preparing the approved record showing the particulars in respect of the land and who is the tenant and who is the landowner. For instance, the statutory requirement for the preparation of a record under the Act is that the land must have been let for cultivation by a tenant. A controversy may arise whether the land has been let for cultivation by a tenant at all. The question to be considered is, whether the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the Act so as to bar the jurisdiction of the Civil Court under Section 16-A. From the language of Section 3(2) it cannot be stated that the determination of that controversy is within the exclusive jurisdiction of the authorities functioning under the Act, though the determination of that controversy is basic and fundamental to the exercise of the jurisdiction by the Record Officer and the other authorities under the Act. The very object of the Act is to provide for the preparation and maintenance of record of tenancy rights in respect of agricultural lands and therefore if there is no tenancy is respect of a land, there is no question of any further particulars being determined. This aspect is made clear even from the definition of the expression 'landowner' occurring in Section 2(5) of the Act, because according to the said definition 'land owner' means the owner of the land let for cultivation by a tenant and includes the heirs assignees or legal representatives of such owner or persons deriving rights through him. Consequently, the controversy as to whether a particular piece of land has been let for cultivation by a tenant or not is one constituting the jurisdictional issue which a Record Officer has to decide before he can determine any other matter under the Act. But that controversy cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act, because to hold so will enable the statutory authorities to assume jurisdiction by erroneously deciding the jurisdictional issue. If the controversy arises, the authorities functioning under the Act have necessarily to decide the same, because a decision on that controversy alone will determine the jurisdiction of the authorities functioning under the Act. If the decision is that the land has been let for cultivation by a tenant, then the Record Officer will have jurisdiction to determine the further particulars provided for in Section 3(2) of the Act. If, on the other hand, the decision of the controversy is that the land has not been let for cultivation by a tenant there is no question of there being any tenancy rights in respect of the said land and consequently, there is no question of the Record Officer ascertaining or determining any further particulars in this behalf. Therefore, if such controversy arises, that controversy cannot be said to be within the exclusive jurisdiction of the authorities functioning under the Act, and any determination of that controversy by the authorities can be said to be only incidental to the assumption of jurisdiction by the authorities under the Act. Subject to this qualification it can be held that once the Record Officer or any other authority functioning under the Act has come to the conclusion that the land has been let for cultivation by a tenant, the matters provided for in Section 3(2) have to be determined by the Record Officer, or other authority functioning under the Act, and to that extent the jurisdiction of the Civil Court is barred under Section 16-A of the Act.
The civil suit has been filed for redemption and for recovery of possession. When the right of redemption is to be decided, incidentally, the court has to go into the question of the tenancy right put forth by the second respondent herein and ultimately the Civil Court has found that the second respondent has not established that he is a cultivating tenant. The said finding has been confirmed in Second Appeal No. 1353 of 1997. During the pendency of the appeal as well as the revision before the Revenue Authorities, the judgment of the Civil Court had been produced. But the Revenue Authorities did not care to refer the same. When once the Civil Court has given a finding that would be binding on the Revenue Authorities and it is not open to them to proceed independently to give their own finding, without considering the judgment of the Civil Court. For the above reasons, I am of the view that the order of the Revenue Authorities cannot be sustained, as there is an error apparent on the face of the record on their failure to consider the Civil Court judgment.
9. Yet another contention of the counsel for the fourth respondent is that the lessee under the usufructuary mortgage is entitled for the benefit of the Tamil Nadu Cultivating Tenants Protection Act (Act 25 of 1955) as held by the Full Bench of this Court reported in Chandrasekaran v. Kunju Vanniar (1976) 2 M.L.J. 243 : (1975) 88 L.W. 216. It is true that the Full Bench of this Court in the said judgment has held that the tenant is claiming the statutory protection and as Such he will be entitled for such of the benefits which conferred under the Statute. In the said case, the lease is prior to the coming into force of the Act 25 of 1955. When the leases was in possession and enjoyment, the beneficial legislation has been passed and that enactment confers the right. Hence the right of the parties had been disrupted by the intervention of the legislation. In this case, the lease is subsequent to the Act which came into force.
10. It may be worthwhile to refer two of the Apex Court judgments which held contrary view. In Jadavji Purshotam v. Navnibhai the Apex Court has held that the mortgagee has no right to grant any lease beyond the period of mortgage. To extract the passage is as follows:
Since it has been found that the mortgagors had not empowered the mortgagee to create a lease which would be binding on them after the redemption of the mortgage and since the appellant's rights, as a tenant, did not become enlarged by means of any Tenancy legislation which came to be enacted after the lease was granted, the appellant can claim tenancy rights only as against his landlord viz., the mortgagee and not against the mortgagors. As soon as the mortgagee's rights became extinguished by the redemption of the mortgage, neither he nor any one inducted by him has a right to be in possession of the mortgage property. Consequently, the mortgagors were entitled to seek ejectment of the mortgagee and the tenant inducted by him. The appellant, had no independent rights and hence it was not necessary that he should have been made a party to the suit filed by the mortgagee of the execution application taken out by the mortgagors after the redemption of the mortgage. His position was akin to that of a subtenant whose rights were conterminous with those of the tenant himself. As such the execution application taken against the mortgagee will be binding on the appellant. Having no independent rights of his own, the appellant cannot contend that the decrees and the execution application are not binding on him as he was not made a party to the proceedings.
11. In another judgment reported in Om Prakash Garg v. Ganga Sahai the Supreme Court has held as follows:
After hearing learned Counsel for the appellant, we are satisfied that the order passed by the High Court does not call for interference. The appellant who claims to be a tenant of the mortgagee Narain Prasad resisted the application made by the respondent-decree-holder Ganga Sahai under Order 21, Rule 35, of the Code of Civil Procedure, 1908 pleading inter alia that being a tenant of the mortgagee he was entitled to the protection of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. That objection of his was not sustained by the Executing Court and it accordingly issued a Warrant of possession in favour of the decree-holder. The appellant went up in appeal against the order of Executing Court. The Additional District Judge different from the Executing Court and held that the appellant being a tenant inducted into possession by the mortgagee was entitled to the protection of the Act and therefore could not be evicted in execution of the final decree for redemption, and further held that the respondent was only entitled to symbolical possession. Aggrieved, the respondent preferred an appeal to the High Court. By the order under appeal, a learned single Judge following the decision of this Court in Sachalmal Parasram v. Mst. Ratanbai held that the lease was not an act of prudent management on the part of the mortgagee Narain Prasad within the meaning of Section 76(a) of the Transfer of Property Act, 1882 and therefore the alleged lease could not subsist after the extinction of the mortgage by the passing of the final decree for redemption and thus' the appellant could not take advantage of the Act as there was no subsisting lease in his favour. After hearing the learned Counsel, we are not persuaded to take a different view than the one reached by the High Court.
On the basis of the above two judgments, it is clear that the Full Bench judgment reported in Chandrasekaran v. Kunju Vanniar (1976) 2 M.L.J. 243 cannot be said to be good law. On this ground also the order of the Revenue Authorities are liable to be set aside.
12. Hence, the writ petition is allowed. However, there will be no order as to costs.