Madras High Court
Rohayya Beevi And Anr. vs C. Varadarajulu Naidu (Died) And Ors. on 5 August, 1991
Equivalent citations: (1992)1MLJ90
JUDGMENT Srinivasan, J.
1. Defendants 1 and 2 are the appellants herein. The first respondent, who died during the pendency of the appeal, filed the suit for partition and separate possession of his 19/24 shares. He claimed to have purchased under a sale deed dated 22.9.1975 the shares belonging to Mohammed Ismail, Mohammed Yusuff, Mohammed Ibrahim, Ibramsa and Abdul Wahab. Mohammed Yusuff is the son of Kasim Rowther, who, according to the plaintiff, had half share in the property. The other half share was belonging to Yacoob Rowther, the brother of Kasim Rowther., and on Yacoob's death, the devolved on his wife and children. According to the plaintiff, except the defendants, the other heirs of Yacoob Rowther joined the sale deed dated 22.9.1975, which was executed by Kasim Rowther's son Mohammed Yusuff.
2. The defendants, who are Yacoob Rowther's wife, daughters and son, resisted the suit mainly on the ground that the property belonged to the defendants exclusively as their kudiyiruppu. According to the defendants, the other heirs of Yacoob Rowther and the heirs of Kasim Rowther, did not have any right in the Kudiyiruppu as they were not in possession. It is not necessary to set out elaborately the defence raised by the defendants in the written statements.
3. The plaintiff for the purpose of proving his title relied on a sale deed in his favour executed on 22.9.1975 and the proceedings in an earlier suit O.S. No. 293 of 1965 on the file of District Munsif, Sirkali, instituted by one Govindarajulu Naidu against Yacoob Rowther and Ors.. As regards the sale deed dated 22.9.1975 that was executed just three months prior to the filing of the present suit and it will not in any way help the plaintiff to claim title against the defendants unless he proves the title of his vendors. The earlier proceedings generated in the suit by Govindarajulu Naidu against Yacoob Rowther and Ors. for recovery of possession in O.S. No. 293 of 1965 on the file of the District Munsif, Sirkali. The defendants therein, and in particular Yacoob Rowther, who was the third defendant, claimed that they were entitled to the benefits of the Tamil Nadu Occupants of Kudiyiruppu (Protection from Eviction) Act XXXVIII of 1961 and the suit for possession was not sustainable.
4. The trial Court upheld the said plea and dismissed the suit. The finding on the relevant issue was that defendants 1 to 3 in that suit were agriculturists or agricultural labourers and their principal means of livelihood was agriculture and they were entitled to the benefits of Tamil Nadu Act XXXVIII of 1961. There was an appeal in the Sub Court, Mayuram, which ended in dismissal. The plaintiff preferred S.A. No. 1539 of 1971 in this Court, which was dismissed on 19.3.1974. The judgments in the prior proceedings are marked as Exts.A-2, A-4 and A-3 respectively.
5. Thus, it is clear that the persons under whom the plaintiff claimed title were found entitled to the benefits of Act XXXVIII of 1961 and they were not the absolute owners of the property. The plaintiff cannot, therefore, claim that his vendors had independent title to absolute ownership of the property.
6. Act XXXVIII of 1961 conferred protection on Kudiyiruppudars from eviction of their Kudiyiruppu. That Act did not deal with ownership of Kudiyiruppu. In fact, the Act contained provisions enabling the owner of the land to seek eviction of the occupants of Kudiyiruppu by initiating proceedings by applying to the Authorised Officer. If the Act had continued to be in force, the vendors of the plaintiff would not have had any title to the land to be conveyed to the plaintiff in the suit.
7. The vendors of the plaintiff conveyed ownership to the plaintiff only on the footing that they were the owners of the land. That could be only on the basis of vesting of the Kudiyiruppu in them under Section 3 of the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act (XL of 1971). There was no other basis on which the vendors of the plaintiff could have conveyed title to the plaintiff under Ex.A-1.
8. Though the contention of the defendants is that the vendors of the plaintiff had no right to the Kudiyiruppu as such and the defendants are the only persons in whom Kudiyiruppu vested under Act XL of 1971, it is unnecessary for the purpose of this appeal to consider that claim. Once it is clear that the plaintiff claims under certain persons, who could have title only under Act XL of 1971 and not otherwise, the question of grant of any relief to the plaintiff in the present proceedings should be considered only in relation to the provisions of the said Act.
9. It should also be mentioned now that the definitions of "agricultural labourer", "agricultural land", "agriculturist" and "Kudiyiruppu" as found in Act XXXVIII of 1961 are the same as of the expressions in the latter Act XL of 1971. Section 3 of Act XL of 1971 vests in the agriculturist or agricultural labourer, who was occupying and Kudiyiruppu on the 19th June, 1971, either as tenant or as licensee, the ownership of such Kudiyiruppu free from all encumbrances. section l5-Aof Act XL of 1971 reads as follows, in so far as it is relevant for the purpose of this case.
(1) Notwithstanding anything contained in Section 3 (or Section 3-A) no occupant of Kudiyiruppu in whom the Kudiyiruppu or the superstructure has vested under Section 3(or the Kudiyiruppu deemed to have vested under Section 3-A) and no heir or legal representative of such occupant shall, except with the previous sanction of the authorised officer, sell, mortgage, lease or otherwise alienate the whole or any portion of such Kudiyiruppu of superstructure within a period of ten years from the date of the commencement of this Act.
(2) Where it is noticed or any information has been received that any alienation has been made in respect of any Kudiyiruppu or superstructure in contravention of Sub-section (1), the authorised officer may, after notice to the occupant of the Kudiyiruppu and other persons affected by such alienation and after such enquiry as he thinks fit to make, by an order, declare the alienation to be null and void, If he find that the alienation has been made in contravention of the said Sub-sec(1), and on such --declaration, the Kudiyiruppu or the superstructure shall, as penalty, be forfeited to, and vest in the Government free from all encumbrances.
10. Under Sub-section (1) of section l5-A of Act XL of 1971, no occupant of Kudiyiruppu or his legal representative, is entitled to alienate the Kudiyiruppu or any portion thereof without the previous sanction of the Authorised Officer. In the absence of such sanction, the transferee under such alienation is not entitled to go before the Civil Court or a Tribunal or any other Authority and claim any relief on the basis of such alienation. Sub-section (2) provides for the Authorised Officer declaring the alienation to be null and void on his getting information about such alienation effected without his prior sanction. Sub-section (2) does not mean that, though the Authorised Officer declares the alienation to be null and void, the alienation is valid for all other purposes and could be enforced through court of law or a Tribunal or other authority. Once the prohibition under Sub-section (1) is absolute in that no occupant of any Kudiyiruppu shall without the previous sanction of the Authority Officer alienate the Kudiyiruppu or a portion thereof, it is not open to the alienee undersuch prohibited alienation to get relief from any authority acting under law, including the Civil Court.
11. Hence the plaintiff has to fail even on the basis of his own case. From the documents produced by the plaintiff, it is dear that the only title that the plaintiff could put forward is the title of their vendors as occupants of Kudiyiruppu in whom the ownership of Kudiyiruppu had vested by virtue of Section 3 of Act XL of 1971. The alienation in favour of the plaintiff was not effected admittedly after the sanction of the Authorised Officer. The transfer was without the previous sanction of the Officer. Hence, the plaintiff is not entitled to claim any relief on the basis of such transfer.
12. Learned Counsel for the respondents contends that the defendants have come forward with different inconsistent versions in the written statement and they are not entitled to claim that the property is a Kudiyiruppu or that the provisions of Act XL of 1971 would apply to the said property. The plaintiff, having come to court with a case of title, is bound to establish the same for getting the relief prayed for by him. He is not entitled to rely on the so-called discrepancies or inconsistencies in the case set up by the defendants.
13. It is next contended by learned Counsel that in the earlier proceedings which culminated in S.A. No. 1539 of 1971, the Court had to consider the rights of parties only under Act XXXVIII of 1961 and that would not lead to the conclusion that Act XL of 1971 would apply to the present case. There is no substance in this argument. I have already pointed out that under Tamil Nadu Act XXXVIII of 1961 the provision related only for eviction of the occupant from the Kudiyiruppu and it had nothing to do with the ownership. If Act XL of 1971 had not been passed, the vendors of the plaintiff could not have conveyed any right to the plaintiff in the property. Hence the claim of the plaintiff could be only on the basis of the provisions of Act XL of 1971.
14. It is next contended that the defendants have not obtained any patta under the Kudiyiruppu Act and the contention of the defendants is that no person is entitled to patta under the Kudiyiruppu Act and that they are not entitled to claim the benefits of the said Act. This is not a case in which the defendants claim the benefit of Tamil Nadu Act XL of 1971, but this is a case in which the plaintiff's suit has to fail because of the provisions of Act XL of 1971. The prohibition contained in section l5-Aof Act XLof 1971 prevented the vendors of the plaintiff from effecting any alienation without the prior sanction of the Authorised Officer. Hence the alienation in favour of the plaintiff did not confer any title on him, which could be worked out in a court of law.
15. It is also argued that the remedy of the defendants, if at all, is to go before the Authorised Officer under section l5-A of Act XL of 1971 and get the alienation in favour of the plaintiff declared null and void. I have already dealt with this aspect of the matter when I referred to the provisions of section l5-A (1) and (2). There is no necessity for the defendants to approach the Authorised Officer. If the plaintiff wanted to have the alienation validated he or his vendor should have approached the Authorised Officer before the alienation was effected in his favour.
16. In the result, the conclusion of the trial Court that Ex.A-1 did not convey any title to the plaintiff is correct and the reversal of the judgment of the trial Court by the appellate Court is erroneous. The second appeal is allowed, the judgment and decree of the Subordinate Judge, Mayuram in A.S. No. 68 of 1978 are set aside and the judgment and decree of the District Munsif, Sirkali in O.S. No. 309 of 1975 are restored. The parties are directed to bear their respective costs throughout.