Madras High Court
K. Nachimuthu vs A. Natarajan on 22 January, 1998
Equivalent citations: (1998)2MLJ613, 1998 A I H C 3740, (1998) 2 MAD LJ 613
JUDGMENT S.M. Abdul Wahab, J.
1. Defendant is the appellant in second appeal.
2. The plaintiff filed the suit for injunction in respect of item No. 1 in 'A' schedule property and the properties covered by 'B' schedule and also prayed for possession with respect to item No. 2 in 'A' schedule. According to the plaintiff, the properties were obtained by him by way of partition and by way of will executed by one of his brothers. After the suit for partition, the will was executed and pursuant to the will, he has taken possession of the properties allotted to him as well the property allotted to his brother, who executed the will in his favour. The defendant was permitted to live as a licensee under the plaintiff and also permitted to use the plaintiff's tiled house and two huts in old S.No.90/2A for a short time till he find suitable accommodation in its place. Thereafter the defendant became a tenant under one Varadharajan, one of the other brothers. The plaintiff did not lease the tiled house to the defendant. He is a tenant with respect to the land belonging to the other brother Varadharajan. There is some misunderstanding between the plaintiff and the other brother Varadharajan: The defendant is neither a tenant of the land nor is entitled to any right under Kudieruppu Act. On the other hand, he is a lorry owner running a transport service in the name and style of K.N.K. Transport. On 22.4.1978, the defendant dug a pit in front of the house, when objected, he attempted to trespass into the 'A' and 'B' schedule properties and harvested the crops. Hence, the suit has been filed.
3. The defendant contended that at the time of partition, the plaintiff was only a minor and he never raised the crop. It is also not correct to state that he has got possession of 'B' schedule property pursuant to the will. Plaintiff was never in possession of the land. Perumal Chettiar was managing the entire properties. With the consent of the sharers, the defendant came to be in possession of the lands belonging to the other sharers. Hence, he is entitled to the rights under the Tamil Nadu Cultivating Tenants Protection Act and Kudieruppu Confirmation of Ownership Act. He has also reconstructed the tiled house at a considerable cost. He has also provided electricity etc.
4. On a consideration of the facts, the trial court has dismissed the suit. It has found that the plaintiff was not in possession of the land. The defendant, is in possession of the properties as a tenant.
5. On appeal, the appellate court has reversed the judgment and decree of the trial court. It has reversed the finding of the trial court by holding that the trial court came to the conclusion that the defendant was a cultivating tenant simply because the plaintiff has expressed ignorance with regard to certain facts. According to the lower appellate court, the defendant has failed to prove that he was a cultivating tenant.
6. From the discussion by the courts below, it is clear that the main issue involved in this case is as to whether the defendant is a cultivating tenant or not.
7. The lower appellate court has found that the defendant is not a cultivating tenant. It is also now represented that even though there was an order in favour of the defendant by the Tahsildar, declaring him as a cultivating tenant, subsequently the same has been set aside by the Revenue Divisional Officer and the matter was remitted back to the Tahsildar for fresh disposal. The matter is pending before the Tahsildar.
8. In a Full Bench decision of this Court reported in Periathambi Gounder v. District Revenue Officer , the scope of Section 16-A Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act has been considered and Their Lordships have observed as follows:
...the interdict is one of the jurisdiction of the matters which by or under the Act have to be determined by the Record Officer, the District Collector or other officer or authority empowered by the Act. The section itself does not enumerate as to what those matters are. The second is, the interdict is not on any particular proceeding in the civil court, but only on the exercise of the jurisdiction in respect of matters. Controversies that come before a court or a tribunal cannot be either pigeon-holed or put in strait-jackets. They may be of different varieties as well as different standards. For the purpose of deciding the main controversy, the court or the tribunal may have incidentally to decide a number of subsidiary questions or controversies. Therefore, when the section itself does not enumerate the matters in respect of which the jurisdiction of the civil court is ousted, one will have to ascertain the said matters, with reference to the other provisions of the Act conferring power or jurisdiction on the authorities functioning under the Act. Similarly a suit or proceeding in a Civil Court may involve the determination of several matters, some of which may be within the jurisdiction of the authorities functioning under the Act and some others outside the jurisdiction. In such a case, the suit or proceeding as such cannot fall unless it is of such a nature that it can be terminated solely on the determination of the matter falling within the jurisdiction of the authorities functioning under the Act.
The learned Judges have held as follows:
The object of the Act as well as the provisions contained in Section 3(2) makes it clear that 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 maybe 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.
9. In the light of the above decision when we look at the issue involved in this case, the primary issue involved appears to be whether the defendant is a cultivating tenant or not? From the discussion of the judgment, we found that the main question involved and determined by the courts below related to whether the defendant by the courts below related to whether the defendant is a cultivating tenant or not. Therefore, in my view, the decision of the Full Bench is squarely attracted.
10. The learned Counsel for the respondent cited the decision reported in Arappa Gounder v. Chithan and Ors. (1994)1 M.L.J. 34 and contended that since the matter is still pending adjudication before the competent authority and the competent authority has not given any finding, the courts power to go into the question is not excluded. In the judgment referred to above, a single Judge of this Court has held in paragraph 19 as follows:
Since the civil court has rendered its finding on the question as to the status of a tenant claimed by the appellant in his favour and as that is not without jurisdiction, on the authority of the F.B. and D.B. referred to above certainly it will bind the Record Officer and it will not be proper for him to ignore the same.
In the said case there were two suits, one was instituted prior to the introduction of Section 16-A of the Tamil Nadu Agricultural Lands (Record of Tenancy Rights) Act (X of 1969). The other suit was subsequent to the coming into force of the said Act. In the earlier suit 3/4th share of certain property was involved while in the later suit l/4th share was involved. The Sub Court held that the appellant was not a cultivating tenant with respect to l/4th share while it upheld the claim of the tenant with respect to 3/4th share. The contention that was raised by the tenant was that since in one suit, which was instituted later he succeeded in the claim for tenancy, with reference to the other land, with respect to which the earlier suit was instituted the same must be accepted with reference to the other land also. The learned Judge repelled the contention relying upon the Full Bench decision. In such circumstances the Judges have observed that the civil court rendered its finding on the question as to the status of a tenant claimed by the appellant in his favour and as that is not without jurisdiction, on the authority of the Full Bench and Division Bench referred to above, certainly it will bind the record officer, The finding rendered by the learned Judges in that case was in respect of a suit which was preferred before the coming into force of the Act. In the Full Bench decision it has also been made clear that if the intention of the Legislature was that Section 16-A should apply even to suits instituted before its introduction, it would have provided for as to what should happen to those suits. Once a suit is competently instituted in a civil court, that suit must terminate in one of the methods known to law, namely, either it is dismissed or it is decreed, and cannot be left in the air. If it was the intention of the Legislature that the moment Section 16-A came into force, even pending suits in respect of matters covered by Section 16-A should not be proceeded with, the legislature would have provided for the abatement of those suits or the dismissal of those suits or transfer of the matter covered by those suits to the appropriate authority under the Act. The Legislature not having made any such provision, it is indisputably clear that Section 16-A was not intended to and could not affect any suit instituted prior to its introduction.
11. Since the Full Bench had made it clear that Section 16-A is made applicable to matters covered by a suit instituted after the Act came into force and inasmuch as the present suit has been filed after the said Act came into force, I am of the view that the matter has to be adjudicated only by competent authority, namely, the Tahsildar and the Superior Officers. Since the matter is already before the Tahsildar, I am of the view that the adjudication by the Courts below cannot stand.
12. In the circumstances, the suit instituted in 1978, long after the coming into force of the Act is not maintainable. Therefore, the judgment and decree of the lower appellate court is set aside. The second appeal is allowed. However, there will be no order as to costs.
13. The judgment in this appeal will not however affect the rights of the plaintiff to proceed against the defendant for possession in case he succeeds before the competent authorities by establishing that the defendant is not a cultivating tenant.